FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

HEALTH CENTERS OF NORTHERN

)

NEW MEXICO,

)

)

Defendant.

)

--------------------------------)

CIV 9 9 1 104
COMPLAINT JURy TRIAL DEMANDED

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil

Rights Act of 1991 by the Equal Employment Opportunity Commission to correct unlawful

employment practices on the basis of sex and retaliation and to provide appropriate relief to Julie

Romero and other women who were adversely affected by such practices. The Commission

alleges that defendant subjected Julie Romero and other women to sexual harassment. As a result

of complaining about the sexual harassment, Julie Romero was retaliated against by defendant.

The retaliation of Julie Romero caused her to be discharged.

\

JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §§2000e-5(f)(1) and (3) ("Title VII"), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. 2. The employment practices alleged below to be unlawful were committed within the jurisdiction of the United States District Court for the District of New Mexico.
PARTIES 3. The Plaintiff, the Equal Employment Opportunity Commission (the" Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. §§2000e-5(f)(I) and (3). 4. At all relevant times to this action, defendant, Health Centers of Northern New Mexico (the "defendant" or "employer") has continuously been a New Mexico corporation doing business in the State of New Mexico and the Town of Anton Chico and has continuously had at least 15 employees. 5. At all relevant times to this action, defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Section 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Julie Romero filed a charge with the Commission alleging violations of Title VII by defendant. All conditions
2

precedent to the institution of this lawsuit have been fulfilled. 7. Since at least September, 1996, defendant engaged in unlawful employment
practices in violation of Section 703(a) of Title VII, 42 U.S.C. §2000e-2(a). These practices include sexual harassment of Julie Romero and other women.
8. In or about August, 1998, defendant engaged in unlawful employment practices in violation of Section 704(a) of Title VII, 42 U.S.C. §2000e-3(a). These practices include retaliation against Julie Romero by transferring, demoting and forcing her to resign because she complained about sexual harassment. Romero's complaints about sexual harassment were protected activity under Title VII.
9. The effect of the practices complained of in paragraph 7 has been to deprive Julie Romero and other women of equal employment opportunities and otherwise adversely affect their status as employees because of their sex.
10. The effect of the practices complained of in paragraph 8 has been to deprive Julie Romero of equal employment opportunities and otherwise adversely affect her status as an employee because of retaliation.
11. The unlawful employment practices complained of in paragraphs 7, 8, 9 and 10 above were intentional.
12. The unlawful employment practices complained of in paragraphs 7, 8, 9 and 10 above were done with malice or with reckless indifference to the federally protected rights of Julie Romero and other women.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court:
3

A. Grant a permanent injunction enjoining defendant, Health Centers of Northern New Mexico, their officers, successors, assigns and all persons in active concert or participation with it, from: 1) engaging in any employment practice which discriminates on the basis of sex, including sexual harassment; and 2) engaging in any employment practice which discriminates against any of its employees or applicants for employment because he has opposed any practice made an unlawful employment practice under Title VII, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII.
B. Order defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals who are female or who engage in protected activity, and which eradicate the effects of its past and present unlawful employment practices.
C. Order defendant to make whole Julie Romero and other women by providing appropriate back pay with prejudgment interest in amounts to be determined at trial, and other affirmative relief.
D. Order Defendant to make whole Julie Romero and other women, who were adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to rightful place reinstatement and/or front pay, and compensation for past and future pecuniary losses, including but not limited to increased transportation costs and costs in obtaining further employment, in amounts to be proved at trial.
4

E. Order Defendant to make whole Julie Romero and other women who were adversely affected by the unlawful employment practices described above, by providing compensation for non-pecuniary losses, including emotional pain, suffering, loss of enjoyment of life, and humiliation in amounts to be determined at trial.
F. Order Defendant to pay Julie Romero and others, who were adversely affected by the unlawful employment practices described above, punitive damages for its malicious and/or reckless conduct, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs in this action. JURy TRIAL DEMANDED
The Commission requests a jury trial on all questions of fact raised by its Complaint.

J1~ay DATED this

of

So;JeI1JtvJ

,1999.

I

Respectfully submitted,

C. GREGORY STEWART General Counsel Designate

GWENDOLYN YOUNG REAMS Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, D. C. 20507

5

MARY 10 O'NEILL Supervisory Trial Attorney
SANDRA I. PADEGIMAS Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Phoenix District Office 3300 N. Central Ave. Suite 690 Phoenix, Arizona 85012
VERONICA A. MOLINA Trial Attorney
LORETTA MEDINA Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Albuquerque District Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5231
Attorneys for Plaintiff
6

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

EQUAL OPPORTUNITY EMPLOYMENT COMMISSION,

Plaintiff,

v.

CIV. No. 99-1104 JP/LFG

HEALTH CENTERS OF NORTHERN NEW MEXICO,

Defendant.

MEMORANDUM OPINION AND ORDER On January 19, 2000 Plaintiff filed a Motion to Strike Defendant’s Affirmative Defense (Doc. No. 20). That motion will be granted. On September 29, 1999 Plaintiff in this Title VII case filed a complaint seeking, inter alia, punitive damages. In its answer, under the heading “Affirmative Defenses,” Defendant claimed that the United States and New Mexico Constitutions bar an award of punitive damages. In the same paragraph under the same heading, Defendant stated that if punitive damages are tried, the standard of proof should be “clear and convincing.” (Answer, Affirmative Defenses, ¶ 4.) Plaintiff moves to strike. Rule 12(f) states that a “court may order stricken from any pleading any insufficient defense.” Fed. R. Civ. P. 12(f). However, motions to strike are disfavored. See Friends of Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333, 1343 (D.N.M. 1995) (citations omitted). To strike a defense, “its legal insufficiency must be ‘clearly apparent.’” Id. (same). A court must be convinced that “under no set of circumstances could the defense succeed.” Id. (same). Even

when the defense presents a “purely legal” question, such a question is “properly . . . viewed as determinable only after discovery and a hearing on the merits.” Id. (same). A court should therefore only grant a motion to strike those defenses for which it is “‘beyond cavil’” that a defendant could not prevail. Id. (same).
Plaintiff moves, under Fed. R. Civ. P. 12(f), to strike two defenses, which each present a purely legal question and for which it is beyond cavil that Defendant cannot prevail. First, Plaintiff moves to strike the defense that the New Mexico Constitution poses a bar to the punitive damage claim in this case which, Defendant concedes, arises entirely under federal law. Plaintiff argues that its federal claims are unrelated to the New Mexico Constitution and that federal law preempts Defendant’s state constitutional defense. While not precisely a question of relationship or preemption, it is elementary constitutional law that a state constitution cannot trump a federal statute. See U.S. Const. art. VI (“[T]he Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution . . . of any State to the Contrary notwithstanding.”) Defendant’s motion to strike Plaintiff’s state constitutional affirmative defense to punitive damages will therefore be granted.
Second, Plaintiff moves to strike the defense that punitive damages claims in this Title VII case must be proven by clear and convincing evidence. In support, however, Plaintiff cites only to law stating that Title VII plaintiffs may recover punitive damages. Plaintiff neglects to assert just what the appropriate standard should be, if not clear and convincing. In response Defendant does nothing to support the standard which it pled as an affirmative defense and indeed confesses to not knowing at all what the correct standard is. Defendant cavalierly adds that “[s]ince this is Plaintiff’s motion, it is Plaintiff’s burden to convince the Court that the ‘clear and convincing
2

evidence’standard is not applicable.” (Resp. at 2.) Accepting the invitation, Plaintiff in reply cites to Karnes v. SCI Colo. Funeral Servs., 162 F.3d 1077 (10th Cir. 1998). In Karnes, the Tenth Circuit squarely addressed the question of which standard of proof applies to punitive damages in Title VII cases and held that the preponderance of the evidence standard governs such claims. See Karnes, 162 F.3d at 1083. Accordingly, Plaintiff’s motion to strike Defendant’s defense that Plaintiff must prove punitive damages by clear and convincing evidence will be granted.
IT IS THEREFORE ORDERED THAT Plaintiff’s motion under Fed. R. Civ. P. 12(f) is granted and Defendant’s affirmative defenses, in its answer at page two, under the New Mexico Constitution and concerning a clear and convincing standard of proof for punitive damages, are stricken.
____________________________________ UNITED STATES DISTRICT JUDGE
3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

vs.

CIVIL NO. 99-1104 JP/LFG

HEALTH CENTERS OF NORTHERN NEW MEXICO,

Defendant.

ORDER ON PLAINTIFF’S MOTION TO COMPEL THIS MATTER is before the Court on Plaintiff’s Motion to Compel Responses to Plaintiff EEOC’s First Set of Non-Uniform Interrogatories and Plaintiff EEOC’s First Request for Production of Documents [Doc. 40]. In accord with the district’s motion-practice rule, the motion, response and reply were simultaneously filed. Since the service of the motion, the parties resolved their dispute as to all matters excepting Requests for Production No. 5, 17, 18, 19 and 20.1 Plaintiff contends that financial information is relevant and discoverable by virtue of the fact that it has asserted a claim for punitive damages. In Request for Production No. 5, its seeks to compel Defendant to produce “balance sheets, assets and liability reports, income and expense

1 In its response to the motion, Defendant states that with regard to Request for Production No. 3, all items would be available at defense counsel’s office for Plaintiff’s review. In its reply, Plaintiff states, “With regard to Request for Production No. 3, the parties resolved all issues with the exception of one of the items requested.” However, Plaintiff failed to apprise the Court which item is in dispute. In the absence of that information, the Court concludes that Defendant made available all items sought by Plaintiff, and, therefore, no further order regarding Request for Production No. 3 is necessary.

reports, profit and loss statements, audited financial statements and any other documents which state total gross revenues earned by Health Centers of Northern New Mexico for each year for the years January, 1996 to present.”
In Request for Production No. 17, it seeks production of all documents discussing or describing liquid assets that would be available to Defendant in the year 2000. In Request for Production No. 18, it seeks information concerning projected earnings from business activities in the year 2000. In Request for Production No. 19, it seeks all documents which discuss or describe the estimated resale value of its business as of January 1, 2000. Finally, in Request for Production No. 20, it seeks all documents which discuss Defendant’s relationship to and financial arrangements with any other business, partner, subsidiary or agent during the period January 1996 to present.
Defendant opposes producing financial information, stating that Plaintiff has failed to make a prima facie showing of any entitlement to punitive damages. Oral argument is not necessary. This matter may be resolved based on the parties’submissions.
Discovery of Financial Information There is no dispute that evidence of a party’s net worth is relevant on the issue of punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270, 101 S. Ct. 2748, 2761 (1981); Ramsey v. Culpepper, 738 F.2d 1092, 1099 (10th Cir. 1984). Defendant’s argument that financial information should not be provided until a prima facie showing has been made finds support in both federal and state rulings. See, e.g., Chenoweth v. Schaaf, 98 F.R.D. 587 (W.D. P. 1983); John Does I-VI v. Yogi, 110 F.R.D. 629 (D.D.C. 1986); Rupe v. Fourman, 532 F. Supp. 344 (S.D. Ohio 1981).
2

However, a majority of federal courts that have considered this questions permit pretrial discovery of a defendant’s financial condition without requiring the plaintiff to first make a prima facie showing of any entitlement to punitive damages. Mid Continent Cabinetry, Inc. v. George Koch Sons, Inc., 130 F.R.D. 149 (D. Kan. 1990)(eleven cases collected in support of discovery.)
The Court agrees with the Mid Continent Cabinetry approach. However, the Court further believes that evidence of a party’s net worth is the appropriate factor for the jury to consider in determining an amount of punitive damages. Woods-Drake v. Lundy, 667 F.2d 1198, 1203 n. 9 (5th Cir. 1982). A defendant’s financial information or net worth from years back is not relevant; it is only defendant’s present ability to respond in damages that is significant.
In Cincinnati Insurance Co. v. Clark, No. 91-0820, 1992 WL 34128, at *2 (E.D. Pa. Feb. 19, 1992), the court was faced with a similar issue. A plaintiff sought a wide variety of financial information, including information from previous years. The court stated that the important inquiry concerned defendant’s present net worth, not its financial dealings or net worth from years ago. In that case, the court required the defendant to produce financial information, but limited the request to information touching on the defendant’s present net worth. Thus, information concerning balance sheets, assets and liabilities, income and expenses, profit and loss, financial statements, gross revenues, inventory sheets, land values, resale values for a period of years, and the like are not particularly helpful.
The Court determines that it is proper to order Defendant to produce a statement of its current net worth, and nothing more. Moreover, it is clear that the Court may properly limit discovery to protect a defendant from unfair disclosure and prevent a plaintiff from disseminating private information outside of this litigation. The Court believes that an order limiting the use of the
3

net worth statement is appropriate. Therefore, the information produced is to be used only for purposes of this litigation and for no other purpose. It may not be disseminated outside of this litigation process, and at the completion of the litigation, Plaintiff and Plaintiff’s counsel are directed to return all financial information provided, together with all copies of the information. Should Plaintiff use a damage expert in the prosecution of the case and produce the Defendant’s statement of present net worth to its expert, that expert, too, must comply with the terms of this order and agree to keep the information confidential, and return all copies of information provided at the completion of the litigation.
Accordingly, the Court grants in part and denies in part Plaintiff’s motion to compel. The motion is granted insofar as Defendant is directed to produce a statement of its current net worth. No other financial information need be produced, and, accordingly, Plaintiff’s motion for production of other financial information is denied.
___________________________________ Lorenzo F. Garcia United States Magistrate Judge
4

 
 FILED
u.s. DI"TRIC.T C;QUU
"1~lnUFRQUE. N~W M!lCICO
JUL 12 2000
.~r~.:..~
CLERK
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION.

)

)

Plaintiff.

)

)

v.

)

)

HEALTH CENTERS OF NORTHERN

)

NEW MEXICO.

)

)

Defendant.

)

---------------------------)

CIV 99-1104 JP/LFG CONSENT DECREE

The United States Equal Employment Opportunity Commission (the "Commission" or "EEOC") filed this action against Health Centers of Northern New Mexico ("Health Centers" or "defendant") to enforce Title VII of the Civil Rights Act of 1964. as amended. 42 U.S.c. § 2000e et seq. ("Title VII") and the Civil Rights Act of 1991. 42 U.S.C. § 1981a. In the complaint, the Commission alleged that Julie Romero and other women were subjected to sexual harassment by defendant in violation of Title VII. The Commission also alleged that defendant retaliated against Julie Romero by transferring. demoting. and forcing her to resign because she complained about the sexual harassment.

The parties do not ohject to the jurisdiction of the Court over this action and waive their rights to a hearing and the entry of findings of fact and conclusions of law. This decree does not constitute an admission of liability hy the defendant. nor an adjudication on the merits of the allegations of the complaint.
It is herehy ORDERED, ADJUDGED AND DECREED: I. This decree resolves all claims of the Commission against defendant, including claims for back pay. compensatory and punitive damages. interest. injunctive relief. attorney's fees and costs arising out of the issues in this lawsuit.
INJUNCTION 2. Defendant. its managers, agents. officers, employees, successors and assigns and all persons in active concert or participation with it. is permanently enjoined for the duration of the decree from discriminating against any employee hecause of his or her sex. including sexual harassment. In addition, defendant. its managers, agents, ofticers. employees, successors and assigns and all persons in active concert or participation with it. are permanently enjoined from retaliating against any employee who: (a) opposes practices made unlawful by Title VII or a state equal employment opportunity statute; (b) makes a charge of discrimination or assists or participates in an investigation or proceeding under Title VII or a state equal employment opportunity statute; or (c) files an internal complaint of discrimination. This injunction will remain in effect for the duration of the decree at any facility operated hy defendant in New Mexico.
RELIEF TO CHARGING PARTY AND CLASS MEMBERS 3. In accordance with this decree, Julie M. Romero shall receive thirty thousand
2

dollars ($30,000.00) in compensatory damages from Health Centers in full and complete settlement of all claims against Health Centers arising out of the facts and issues included in this lawsuit.
4. In accordance with this decree, Dorothy Crespin, as a class member, shall receive tive thousand dollars ($5,000.00) in compensatory damages, in full and complete settlement of all claims against Health Centers arising out of the facts and issues included in this lawsuit.
5. In accordance with this decree, Emily Jaramillo, as a class member, shall receive five thousand dollars ($5.000.00) in compensatory damages, in full and complete settlement of all claims against Health Centers arising out of the facts and issues included in this lawsuit.
6. Health Centers shall separately mail the checks, via certified mail, to Ms. Romero, Ms. Crespin and Ms. Jaramillo at the addresses provided hy the EEOC. Within twenty (20) days of thc issuance of the checks, Health Centers will submit a copy of the checks and related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, 505 Marquette NW, Suite 900, Alhuquerque, New Mexico 87102-2189.
7. In response to any employment inquiries or reference checks concerning charging party Julie M. Romero or the class memhers, defendant shall provide only the individual's dates of employment, each position held, job duties and salary. This provision shall remain in force for so long as charging party Julie M. Romero or the class members use Health Centers as a reference and is not limited to the three (3) year duration of this decree.
S. Defendant shall not take any action against charging party Julie M. Romero or class memhers Dorothy Crespin and Emily Jaramillo in this case in retaliation for filing a charge of employment discrimination or for participating. assisting or testifying in this action.
3

DEFENDANT'S CORRECTIVE POLICIES AND PRACTICES 9. Defendant shall institute and carry out policies and practices that promote a work environment free from sex discrimination. including policies and practices to prevent sexual harassment of its employees and other individuals, and that allow employees and other individuals to raise concerns or complaints about matters made unlawful by Title VII, whether alleged. perceived or actual without retaliation. To assist defendant in its effort to promote a work environment free of sex discrimination. sexual harassment and retaliation, defendant shall take the actions provided for in Paragraphs 10 through 13. 10. Defendant shall review its existing policies on sex discrimination. including sexual harassment. and make any changes necessary so that its policies comply with Title VII. Defendant shall ensure its written policies include a statement that employees have a right to complain to or tile directly with the EEOC or any state equal opportunity agency. After reviewing and making any necessary revisions to its policies. defendant shall distribute a copy of its sexual harassment policy to each of its current full and part-time employees, and to each new employee hired for the duration of this decree. II. Defendant shall provide its employees with revised written policy statements and procedures regarding reporting and prevention of sexual harassment and retaliation. The policy and procedure statements that are provided to defendant's employees should he designed to present easily understood, convenient, confidential and reliable procedures for reporting incidents of sexual harassment and retaliation in defendant's New Mexico facilities. These procedures. at a minimum, shall provide as follows: A. AI least one (I) employee from each of defendant's regions in a supervisory or
4

managerial position shall be designated to serve as investigative officer for sexual harassment issues; B. The names, responsibilities, work locations, and telephone numbers of the investigative officer(s) will routinely and continuously be posted and provided to all employees so that an employee seeking such name can enjoy anonymity and remain inconspicuous to other employees; C. Complaints of sexual harassment or retaliation will be accepted in writing or orally, and anonymous complaints will be taken seriously and investigated; D. Only those who have an immediate need to know, including the investigative officer, the alleged target of harassment or retaliation, the alleged harasser(s) or retaliator(s) and any witnesses. may find out the identity of the complainant; E. All parties contacted in the course of an investigation will be advised that any retaliation or reprisal against an individual who is an alleged target of harassment or retaliation, who has made a complaint, or who has provided evidence in connection with a complaint will not be tolerated and could result in disciplinary action; F. Each investigative officer will receive thorough training about sexual harassment and will have the responsibility for expeditiously investigating all complaints. This training shall consist of at least three hours in addition to that provided under Paragraph 13; G. The investigative officer will recommend remedial measures, if appropriate, based upon the results of the investigation, and defendant will promptly consider and act upon such recommendation;
5

H. The investigative officer will maintain a file on the original complaint(s) and any follow-up investigation;
I. Defendant's managers, officials, agents or employees who engage in sexual harassment or retaliation, who fail to cooperate with company-sponsored investigations of sexual harassment or retaliation, or who refuse to implement remedial measures will be advised that they may be sanctioned severely by suspension or dismissal.
12. Defendant shall post within thirty (30) days of the entry of this Consent Decree, and continuously for a period of thirty-six (36) months in prominent places frequented by employees in all defendant's New Mexico facilities, the Notice attached to this decree as Exhibit A. This Notice shall be the same type, style and size as in Exhibit A.
13. Defendant shall provide training on sex discrimination. including sexual harassment and retaliation according to the following terms:
A. Defendant shall provide at least three (3) training sessions during the term of this decree. All managers, supervisors and employees at all of defendant's facilities in New Mexico shall attend the training. Duplicative sessions may be hcld to accommodate statling needs. Defendant shall he responsible for all costs associated with this training.
B. During the tirst year of the decree, the training shall be conducted within six (6) months of the entry of this decree. Additional training shall he conducted at least once a year for the duration of this Decree.
6

C. Defendant shall select a qualified trainer and shall submit the trainer's name, resume, training agenda and the date(s) of the proposed training to the Regional Attorney of the Albuquerque office of the Equal Employment Opportunity Commission within sixty days of the entry of this decree. During the second and third years of the decree, the ahove information shall be suhmitted to the Regional Attorney at least ninety days prior to the seminar-training session. The Commission shall have thirty (30) days from the date of receipt of the information described above to accept or reject the proposed consultant/lecturer and/or the contents of the seminar. In the event the Commission does not approve defcndant's designated consultant/lecturer, the Commission shall designate the consultant/lecturer at a cost not to exceed $1,000.00 per seminartraining session which shall he paid by defendant.
D. The training shall include a minimum of two (2) hours of instruction. All personnel designated in Paragraph A shall hoth register and attend the training. The registry of attendance shall be retained hy defendant at least tllr the duration of the decree.
E. The training, at a minium, shaH include the subjects of: what constitutes sex discrimination, including sexual harassment, harassment based on gendcr, and retaliation; that sex discrimination in the hiring, firing, compensation, assignment or other terms, conditions or privileges of employment and retaliation violates Title VII; how to prevent sex discrimination and retaliation;
7

how to provide a work environment free from sex discrimination. sexual harassment and retaliation; and to whom and by what means employees may complain if they feel they have been subjected to sex discrimination. sexual harassment and retal iation in the workplace. F. Within sixty (60) days following the training sessions. defendant's highest ranking managerial official in New Mexico shall speak to the employees about: (1) potential discipline that can be taken against supervisors, managers and employees who commit acts of sex discrimination or retaliation. or who allow sex discrimination or retaliation to occur in the workplace; (2) the importance of maintaining an environment free of sex discrimination and retaliation; and (3) the employer's policies regarding sex discrimination, sexual harassment and retaliation. This time shall not be counted toward the two (2) hour minimum training required in Paragraph B.D. G. For the duration of this decree. at or around the time of hire, employees hired after the annual training is presented. shall view a video tape of the training and/or a professional training tape which covers the topics sct forth in Paragraph 13.E. and shall be given any written material disseminated at the training. 14. The Commission, at its discretion. may designate Commission representatives to attend and participate in the training sessions described above.
REPORTING BY DEFENDANT AND ACCESS BY EEOC 15. Defendant shall report in writing and in aftidavit form to the Regional Attorney
8

or the Commission's Albuquerque District Office at 505 Marquette NW, Suite 900, Alhuquerque, New Mexico 87102-2189 beginning six months from the date of the entry of this decree. and thereafter every six months for the duration of the decree the following information:
A. Any changl'S. modifications, revocations, or revisions to its policies and procedures which concern or affect the subject of sex discrimination. sexual harassment and retaliation.
B. The job title or position of the employee who has brought allegations or complaints or sex discrimination. harassment, or retaliation arising from activities in defendant's New Mexico facilities against defendant or its personnel. including, but not limited to. management ofticials. vendors, agents, or employees. the region where the employee is assigned. and the nature of the allegation or complaint, investigatory efforts made by defendant and the corrective action taken, if any. shall be specified. The Conunission shall have sixty (60) days from receiving the aforementioned allegation or complaint from defendant to ask for additional information from defendant concerning the allegations or complaints of sex discrimination. harassment, or retaliation, including the identity of the complainant (name, address, social security number and telephone number). The defendant shall have thirty (30) days from the Commission's request to obtain consent from the employee making the allegation or complaint to release to the Commission identifying information
9

(name, address, social security number and telephone number). If consent of the employee to release the employee's identifying information is not obtained by the defendant from the employee, the parties agree that the Commission may proceed with a subpoena, administrative or otherwise. The parties further agree that subpoenas relating to the allegations or complaints referred to in this paragraph may be enforced under this provision of the Consent Decree. C. The registries of persons attending each of the seminar-training sessions required in Paragraph 13 of this decree and a list of current employees on the day of the seminar-training session. D. An affidavit by defendant stating: (I) the Notice required in Paragraph 12 of this decree was posted and the locations where it was posted; and (2) it has complied with paragraphs 10,11.12 and 13 of this decree. 16. The Commission, upon reasonable notice, shall have the right to enter and inspect the premises of defendant's New Mexico facilities to ensure compliance with this decree and federal anti-discrimination laws.
COSTS AND DURATION 17. Each party shall bear its costs and attorney's fees incurred as a result of this action through the entry of this decree. 18. The duration of this decree shall be three (3) years from its entry. with the exception of Paragraph 15.B., which term shaH be two (2) years from entry of the decree. This Court shall retain jurisdiction of this action for the duration of the decree. during which the Commission may petition this Court for compliance with this decree. Should the Court determine that defendant has not complied with this decree. appropriate relief, including
10

extension of this decree for such period as may be necessary to remedy its non-compliance. may he ordered.
19. Paragraph 15.B shall expire at the end of two (2) years after entry of this decree. All n:maining provisions of this decree shall expire at the end of three (3) years after entry of this decree. without further action by the parties.
20. The parties agree to entry of this decree and judgment subject to final approval by the Court.
ENTERED AND ORDERED this __ day of _ _ _. 2000.
- -----....

RABLE JUDGE JAMES A. PARKER D STATES DISTRICT COURT JUDGE

APPROVED AND CONSENTED TO:

C. GREGORY STEW ART General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street. NW Washington. D.C. 20507
~~J~/-k0
Regional Attorney

11

~~/~

C. EMANUEL SMITH

1

Supervisory Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 3300 N. Central Ave .. Suite 690 Phoenix, Arizona 85012

GALLAGHER, CASADOS & MANN. P.C. 317 Commercial N. E.. 2"d Floor Alhuquerque. New Mexico 87102 Telephone: (505) 243-7848
Attorneys for Defendant

~~~/~

VERONICA A. MOLINA

•

Trial Attorney

LORETTA MEDINA Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Albuquerque District Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102-2189 Telephone: (505) 248-5231
Attorneys for Plaintiff

12

NOTICE TO ALL EMPLOYEES OF HEALTH CENTERS OF NORTHERN NEW MEXICO
It is unlawful under the federal law (Title VII of the Civil Rights Act) and state law to discriminate against an employee on the basis of sex in hiring. firing. compensation or other terms. and conditions or privileges of employment. including sexual harassment.
Your cmployer prohihits all forms of sexual harassment. Prohibited sexual harassment includes. but is not limited to, the following conduct:
I. unwelcome touching of a sexual nature; 2. unwelcome discussion of sexual jokes and sexual behavior; 3. unwelcome requests for dates, sexual favors and propositions; and 4. unwelcome distribution in the workplace of cartoons. pictures or
drawings of a sexual nature.
Your employer shall not discriminate on the basis of sex and shall not retaliate against any employee who opposes a practice made unlawful under fcderallaw, files, assists or participates in the filing of a charge of discrimination or participates in any investigation under Title VII. or who files a grievance alleging discrimination.
If you believc you are being sexually harassed, discriminated against or retaliated against you should report this to your manager or the designated investigative officer for your workplace.
If for any reason you believe your complaint may not be effective at your work place. or you feel uncomfortable making a complaint at your work place, you have a right to complain to or file directly with:
I) Equal Employment Opportunity Commission (EEOC), 505 Marquette. Suite 900. Albuquerque, New Mexico 87102, 1-800-669-4000.
or
2) The New Mexico Department of Labor, Human Rights Division. 1596 Pacheco St., Suite 103, Santa Fe, New Mexico 87505, (505) 827-6838.
You have the right to file a charge with the EEOC or the Department of Lahor if you believe you are being discriminated against.
EXHIBIT A

 
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MTNDDL, REFER, TERMED
U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:99-cv-01104-JAP-LFG

EEOC v. Health Centers Assigned to: District Judge James A. Parker Referred to: Magistrate Judge Lorenzo F. Garcia Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/29/1999 Date Terminated: 07/12/2000 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C Emanuel Smith EEOC 3300 N Central Ave #690 Phoenix, AZ 85012 (602) 640-5033 Fax: 640-5009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Gregory Stewart EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwendolyn Young Reams EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loretta F Medina EEOC 505 Marquette, NW #900 Albuquerque, NM 87102 (505) 248-5230

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Email: loretta.medina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Jo O'Neill EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-2504 (602) 640-5000 Fax: (602) 640-5009 Email: mary.oneill@eeoc.gov TERMINATED: 01/19/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard R. Trujillo EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-1848 (602) 640-5000 Fax: 640-5009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Padegimas EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-1848 (602) 640-5000 Fax: 640-5009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica A Molina Equal Employment Opportunity Commission Legal Unit 505 Marquette N.W., Suite 900 Albuquerque, NM 87102 (505) 248-5231 Fax: (505) 248-5217 Email: veronica.molina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
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V. Defendant Health Centers of Northern New Mexico

represented by J. E. Casados Gallagher, Casados & Mann 317 Commercial, NE Second Floor Albuquerque, NM 87102 (505) 243-7848 Fax: 764-0153 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/1999 10/07/1999 10/12/1999
11/02/1999 11/05/1999 11/05/1999 11/08/1999
11/29/1999 11/30/1999
12/09/1999 12/10/1999 12/16/1999

#

Docket Text

1 COMPLAINT-Title VII of Civil Rights Act of 1964 (1 Summons(es) issued) (vv) (Entered: 09/30/1999)
2 NOTICE of Refusal to Consent to Proceed before a US Magistrate Judge Lorenzo F. Garcia by pltf EEOC (ild) (Entered: 10/12/1999)
3 MINUTE ORDER: Case reassigned to Judge James A. Parker , and Case referred to Magistrate Judge Lorenzo F. Garcia (cc: all counsel) (ild) (Entered: 10/12/1999)
4 RETURN OF SERVICE executed upon defendant Health Centers on 10/18/99 (sl) (Entered: 11/02/1999)
5 NOTICE by defendant of consent to proceed before a U.S. Magistrate Judge (sl) (Entered: 11/05/1999)
6 ANSWER by defendant [1-1] (sl) (Entered: 11/05/1999)
7 INITIAL SCHEDULING ORDER by Magistrate Judge Lorenzo F. Garcia ; Rule 16 scheduling conference set for 12/16/99 at 9:00 am; provisional discovery plan and IPTR due on 12/10/99 (cc: counsel*) (sl) (Entered: 11/09/1999)
8 UNOPPOSED MOTION for Extension by plaintiff to serve pltf's mtn to strike deft's affirmative defenses (jrm) (Entered: 11/30/1999)
9 ORDER by Magistrate Judge Lorenzo F. Garcia granting pltf's unopposed mtn for an extension of time until 12-15-99 in which to serve pltf's mtn to strike deft's affirmative defense [8-1] (cc: all counsel) (jrm) (Entered: 12/01/1999)
11 PROVISIONAL DISCOVERY PLAN by parties (bap) (Entered: 12/14/1999)
10 CERTIFICATE of service by plaintiff of initial disclosure to counsel on 12/9/99 (sl) (Entered: 12/10/1999)
12 CLERK'S MINUTES: before Magistrate Judge Lorenzo F. Garcia ; Rule 16 scheduling conference held on 12/16/99 (sl) (Entered: 12/16/1999)

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12/16/1999 12/16/1999 01/03/2000 01/04/2000
01/05/2000 01/06/2000 01/19/2000 01/19/2000 01/19/2000 01/19/2000 01/19/2000 02/25/2000 03/16/2000 03/23/2000 04/04/2000 04/04/2000

13 ORDER by Magistrate Judge Lorenzo F. Garcia adopting Attorney's Provisional Discovery Plan [11-1] except as modified by IPTR (cc: all counsel*) (sl) (Entered: 12/16/1999)
14 ORDER by Magistrate Judge Lorenzo F. Garcia assigning standard track and setting pretrial deadlines ; Discovery cutoff 5/16/00 ; Motion Filing cutoff 7/17/00 ; Pretrial order ddl 8/30/00 (cc: all counsel*) (sl) (Entered: 12/16/1999)
15 CERTIFICATE of service of initial disclosures by defendant to counsel on 12-23-99 (jrm) (Entered: 01/03/2000)
16 INITIAL PRE-TRIAL REPORT Judge James A. Parker and Magistrate Judge Lorenzo F. Garcia ; Discovery set for 5/16/00 ;mtn filing ddl set for 7/17/00 ; proposed pretrial order due 8/30/00 ; pretrial conference set for 9:00 am on 8/23/00; jury trial set for 8:30 am on 11/6/00 ; Estimated # of Trial Days: 5; (cc: all counsel w/notice of hearing attached) (sl) (Entered: 01/05/2000)
17 SUPPLEMENT by plaintiff of the contentions in the initial pretrial report (sl) Modified on 01/12/2000 (Entered: 01/05/2000)
18 CERTIFICATE of service by plaintiff of first supplemental initial disclosures to counsel on 1/5/00 (vv) (Entered: 01/06/2000)
19 SUBSTITUTION OF COUNSEL: terminating attorney Mary Jo O'Neill for EEOC and substituting attorney C Emanuel Smith (sl) Modified on 01/21/2000 (Entered: 01/19/2000)
20 MOTION by plaintiff to strike deft's affirmative defense (sl) (Entered: 01/20/2000)
21 MEMORANDUM by plaintiff in support of motion to strike deft's affirmative defense [20-1] (sl) (Entered: 01/20/2000)
22 RESPONSE by defendant to pltf's motion to strike deft's affirmative defense [20-1] (sl) (Entered: 01/20/2000)
23 REPLY by plaintiff to deft's response to motion to strike deft's affirmative defense [20-1] (sl) (Entered: 01/20/2000)
24 CERTIFICATE of Service by plaintiff of first set of non-uniform interrogatories, first request for production of documents and first request for admissions, mailed to opposing counsel of record on 2/24/00 (bap) (Entered: 02/29/2000)
25 UNOPPOSED MOTION by plaintiff for order to establish deadline for designation of rebuttal expert (sl) (Entered: 03/16/2000)
26 ORDER by Magistrate Judge Lorenzo F. Garcia denying pltf's motion for order to establish deadline for designation of rebuttal expert [25-1] (cc: all counsel*) (sl) (Entered: 03/23/2000)
27 CERTIFICATE of service by defendant of responses to first request for admissions to counsel on 4/3/00 (vv) (Entered: 04/05/2000)
28 CERTIFICATE of service by defendant of first request for production of documents to counsel on 4/3/00 (vv) (Entered: 04/05/2000)

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04/04/2000 04/13/2000 04/14/2000 04/17/2000 04/19/2000 04/21/2000 04/28/2000 04/28/2000 05/10/2000 05/11/2000 05/26/2000 05/30/2000 05/30/2000 05/30/2000 05/30/2000

29 CERTIFICATE of service by defendant of answers to first set of non-uniform interrogatories to counsel on 4/3/00 (vv) (Entered: 04/05/2000)
30 CERTIFICATE of service by plaintiff of third initial disclosures to counsel on 4/12/00 (vv) (Entered: 04/14/2000)
31 MEMORANDUM, OPINION, AND ORDER: by Judge James A. Parker granting pltf's motion to strike deft's affirmative defense [20-1] (cc: all counsel*) (sl) (Entered: 04/14/2000)
32 CERTIFICATE of Service by plaintiff of second set of non-uniform interrogatories, faxed to counsel of record on 4/14/00 (bap) (Entered: 04/18/2000)
33 CERTIFICATE of Service by defendant of objection to second set of non-uniform interrogatories, mailed to opposing counsel of record on 4/18/00 (bap) (Entered: 04/20/2000)
34 CERTIFICATE of service by plaintiff of fourth initial disclosures to counsel on 4/20/00 (vv) (Entered: 04/21/2000)
36 ORDER by Magistrate Judge Lorenzo F. Garcia setting settlement conference for 6/16/00 at 9:00 am in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 04/28/2000)
35 ORDER by Magistrate Judge Lorenzo F. Garcia upon parties telephonic request to extend discovery deadline ; Discovery cutoff 6/15/00 (cc: all counsel*) (sl) (Entered: 04/28/2000)
37 CERTIFICATE of Service by defendant of amended responses to first request for admissions, nos. 2,4,6 & 7, hand delivered to opposing counsel on 5/10/00 (bap) (Entered: 05/11/2000)
38 CERTIFICATE of service by plaintiff of third supplemental initial disclosures to counsel on 5/10/00 (vv) (Entered: 05/11/2000)
39 CERTIFICATE of service by plaintiff of fifth initial disclosures to counsel on 5/25/00 (vv) (Entered: 05/30/2000)
40 MOTION by plaintiff to compel responses to pltf EEOC's 1st set of non-uniform interrog(s) and 1st request for production of documents (jrm) (Entered: 05/30/2000)
41 MEMORANDUM by plaintiff in support of motion to compel responses to pltf EEOC's 1st set of non-uniform interrog(s) and 1st request for production of documents [40-1] (jrm) (Entered: 05/30/2000)
42 RESPONSE by defendant to motion to compel responses to pltf EEOC's 1st set of non-uniform interrog(s) and 1st request for production of documents [40-1] (jrm) (Entered: 05/30/2000)
43 SUPPLEMENTAL RESPONSE by defendant to motion to compel responses to pltf EEOC's 1st set of non-uniform interrog(s) and 1st request for production of documents [40-1] (jrm) (Entered: 05/30/2000)

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05/30/2000
05/30/2000
06/06/2000 06/07/2000
06/15/2000 06/15/2000 06/16/2000 06/16/2000 07/12/2000

44 REPLY by plaintiff to response to motion to compel responses to pltf EEOC's 1st set of non-uniform interrog(s) and 1st request for production of documents [40-1] (jrm) (Entered: 05/30/2000)
45 CERTIFICATE of service by defendant of supplemental answers to interrogatory no.3, supplemental responses to request for production no.10 to counsel on 5/24/00 (vv) (Entered: 05/31/2000)
46 CERTIFICATE of service by plaintiff of sixth supplemental initial disclosures to counsel on 6/5/00 (vv) (Entered: 06/06/2000)
47 ORDER by Magistrate Judge Lorenzo F. Garcia granting in part and denying in part pltf's motion to compel responses to pltf EEOC's 1st set of non-uniform interrog(s) and 1st request for production of documents [40-1] (cc: all counsel*) (jrm) Modified on 06/07/2000 (Entered: 06/07/2000)
48 CERTIFICATE of service by plaintiff of seventh supplemental initial disclosures to counsel on 6/14/00 (sl) (Entered: 06/15/2000)
49 DISCOVERY STIPULATION by parties (sl) (Entered: 06/15/2000)
50 ORDER by Magistrate Judge Lorenzo F. Garcia granting parties discovery stipulation [49-1] as described herein (cc: all counsel) (sl) (Entered: 06/16/2000)
SETTLEMENT CONFERENCE held before Magistrate Judge Lorenzo F Garcia; case has settled (jrm) (Entered: 06/19/2000)
51 CONSENT JUDGMENT by District Judge James A. Parker as described herein (see judgment for specifics) dismissing case (cc: all counsel) (sl) (Entered: 07/13/2000)

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