IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
02 S[P 25

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

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Plaintiff,

)

)

v.

)

)

BELL GAS INCORPORATED, and

)

BALLEW DISTRIBUTING, INC.

)

)

Defendants.

)

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

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 to correct unlawful employment practices on the basis of sex and to provide

appropriate relief to Evelyn Silva and Cheri Brisco who were adversely affected by such practices.

The Commission alleges that Defendants Bell Gas Incorporated and Ballew Distributing, Inc.

discriminated against Evelyn Silva and Cheri Brisco because of their sex, female. Specifically,

the Commission alleges the Defendants sexually harassed MS.Silva and Ms.Brisco; they were

subjected to severe and/or pervasive sexual harassment by Facility Manager and Supervisor

Carroll Madsen and Warehouse Manager Max Stacy, which created a hostile work environment.

The Commission further alleges that Defendants did not exercise reasonable care to prevent and

promptly correct the sexual harassment.

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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(t)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e-5(t)(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 to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the District of New Mexico.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the 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 Sections 706(t)(1) and (3) of Title VII, 42 U.S.C. §§ 2000e-5(t)(I) and (3). 4. At all relevant times, Defendants Bell Gas Incorporated and Ballew Distributing, Inc. (collectively the "Employers" or "Defendants" or "Ballew") were each New Mexico corporations which continuously did and are now doing business in the State of New Mexico and in the City of Roswell. Each has continuously had at least fifteen employees and collectively they have operated a business under the name of Ballew Distributing. 5. At all relevant times, Defendants have continuously been and are now employers engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §2000e-(b), (g) and (h).
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STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Evelyn Silva and Cheri Brisco filed charges with the Commission alleging violations of Title VII by Defendants. All administrative conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least May 1999, Defendants have engaged in unlawful employment practices at the Ballew Distributing facility in Roswell, New Mexico in violation of Section 703(a) of Title VII, 42 U.S.C. §§2000e-2(a), by discriminating against Evelyn Silva and Cheri Brisco because of their sex, female, by sexually harassing them. 8. The sexual harassment included sexually offensive comments, sexual questions, sexual suggestions and unwelcome touching. 9. Defendants failed to exercise reasonable care to prevent and promptly correct the sexual harassment. 10. The effect of the practices complained of in paragraphs 7-9 above has been to deprive Evelyn Silva and Cheri Brisco of equal employment opportunities and otherwise adversely affect their status as employees because of their sex, female. 11. The unlawful employment practices complained of in paragraphs 7-9 above were intentional. 12. The unlawful employment practices complained of in paragraph 7-9 above were done with malice and/or reckless indifference to the federally protected rights of Evelyn Silva and Cheri Brisco.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court:
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A. Grant a permanent injunction enjoining Defendants, their officers, successors, assigns and all persons in active concert or participation with them, from engaging in any employment practice that discriminates on the basis of sex, including sexual harassment.
B. Order Defendants to institute and carry out policies, practices and programs which provide equal employment opportunities for women and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendanis to make whole Evelyn Silva and Cheri Brisco by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above, including job search expenses and other pecuniary losses, in amounts to be determined at trial.
D. Order Defendants to make whole Evelyn Silva and Cheri Brisco by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraph 7 above including, but not limited to, emotional pain, suffering, inconvenience, mental anguish, humiliation, loss of enjoyment of life, and other non-pecuniary losses, in amounts to be determined at trial.
E. Order Defendants to pay punitive damages to Evelyn Silva and Cheri Brisco for its malicious and/or reckless conduct described above, in amounts to be determined at trial.
F. Grant such further relief as the Court deems necessary and proper in the public interest.
G. 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.
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DATED this 26th day of September, 2002.

Respectfully submitted,

GWENDOLYN YOUNG REAMS Acting General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, D.C. 20507
lc-1oik;jhQ ~Il\ CffY\.
MARY 10 O'NEILL
'61fu- Acting Regional Attorney
:EMANUEbL'1SrMtIQTHLcC7~~
Supervisory Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Phoenix District Office 3300 N. Central Avenue, Suite 690 Phoenix, Arizona 85012
b~A.~~
VERONICA A. MOLINA Trial Attorney
1£ifM~W~ED1!t Qd£:!t'CA
Senior Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Albuquerque District Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5231

Attorneys for Plaintiff

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
BELL GAS INCORPORATED and BALLEW DISTRIBUTING,
Defendants.

No. CIV 02-1213 JP/LAM

ORDER CONSOLIDATING ACTIONS THIS MATTER comes before the Court on the motion of Plaintiff Equal Employment Opportunity Commission to consolidate [Doc. #31] this action with EEOC v. Bell Gas, Inc., et al., CIV 02-1212 BB/KBM, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, and the Court having reviewed the pleadings of counsel and being fully advised in the premises, FINDS these actions involve common questions of law or fact, and a consolidation of these actions at least for discovery purposes, will avoid unnecessary costs or delay. The Court will reserve a determination on whether these actions should be tried separately. Now, therefore,

IT IS ORDERED that these actions are CONSOLIDATED for pretrial purposes, and that all future pleadings shall be filed in CIV 02-1212 BB/KBM, the lower numbered action.
Dated at Albuquerque this 13TH day of June, 2003. _______________________________ BRUCE D. BLACK United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO __________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v.
BELL GAS INC., ET AL., Defendants.

No. CIV 02-1212 BB/LAM No. CIV 02-1213 BB/LAM

MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court for consideration of a number of motions for summary judgment filed by Defendants in these two cases. In case number CIV 02-1212, Defendant ABC Propane (“ABC”) has filed a motion for summary judgment on the merits (Doc. 82); Defendant Bell Gas, Inc. (“Bell Gas”) has filed a motion for summary judgment maintaining it was not Plaintiff’s employer (Doc.84); and Defendant Cortez Gas Company (“Cortez”) has filed a similar motion (Doc. 85). In case number CIV 02-1213, Defendant Ballew Distributing (“Ballew”) has filed a motion to dismiss or for summary judgment claiming it does not qualify as an employer under Title VII (Doc. 80);1 Ballew has also filed a motion for summary judgment on the merits (Doc. 81); and Bell Gas has filed a motion for summary judgment maintaining it was not Plaintiff’s employer (Doc. 83). The Court has reviewed the submissions of the parties and the relevant law. For the reasons set forth below, the Court finds that all of the motions will be denied.
1The motions in case number CIV 02-1213 were filed in the same file as CIV 02-1212, and the document numbers refer to the 02-1212 file. This is because the cases were originally consolidated for some purposes, and this consolidation was only recently rescinded (Doc. 116, case 02-1212). The Court is addressing all the motions filed in both cases in this single opinion, as a matter of convenience.

This case arises out of Evelyn Silva’s (“Silva”) employment with two of the Defendants, first with Ballew and then with ABC. Silva claims that while she was employed at Ballew she was subjected to a hostile environment based on her gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Silva filed a charge of discrimination with Plaintiff (“EEOC”), which eventually resulted in the EEOC’s filing of case number 02-1213. While Silva’s EEOC proceedings were ongoing, she went to work for ABC. After only three days on the job she was fired, allegedly in retaliation for her protected conduct (the EEOC proceedings) directed at Ballew. The EEOC filed case number 02-1212 as a result of this firing. Defendants in both cases have filed the motions for summary judgment listed above.
Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this standard, a court must “view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Serv., 165 F.3d 1321, 1326 (10th Cir. 1999). A mere scintilla of evidence supporting the nonmoving party’s theory does not create a genuine issue of material fact. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999). Instead, the nonmoving party must present facts such that under the applicable law, a reasonable jury could find in its favor. Id. The Court will analyze the motions for summary judgment under this standard.
ABC’s Motion Merits: ABC’s first argument in support of summary judgment is that Larry Arnold, the ABC employee who fired Silva, did not know she had engaged in protected conduct and therefore could not have been retaliating against her in violation of Title VII. See Petersen v. Utah Dep't of
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Corrs., 301 F.3d 1182, 1188 (10th Cir. 2002) (an employer cannot engage in unlawful retaliation if it does not know that the employee has engaged in conduct protected by Title VII). In other words, ABC claims that Arnold, when he fired Silva, did not know she had filed a discrimination charge against Ballew. Viewed in the light most favorable to EEOC, however, there is a factual dispute as to Arnold’s knowledge at the time of the firing. Arnold testified in his deposition as follows: (1) on the day of the firing, Tom Lancaster (a corporate officer of ABC) called Arnold and told him Silva “had” a sexual harassment charge against Ballew [Exh. G, EEOC Resp. to ABC MSJ, p. 91]; (2) about three minutes later, Eugene Bell (“Eugene”) called Arnold and asked Arnold if he knew Silva was a previous employee of Ballew, and knew Silva had a lawsuit against “us” [id., p. 92; Exh. 1, ABC MSJ, pp. 77-78]; and (3) Arnold understood that Eugene wanted Silva terminated, and if Eugene wanted Arnold to do something, he would do it [Exh. G, pp. 83-84]. Also, Gloria Jones, another ABC employee, testified that on the day of the firing, Arnold told her he had just received a call, that Silva had a lawsuit against Ballew, and she needed to be terminated [Exh. 2, ABC MSJ, p. 47]. This evidence, if believed by a factfinder, would support a determination that Arnold knew Silva had filed a discrimination claim of some sort against Ballew, knew that Eugene was upset about Silva’s action, and fired Silva as a result.
In an attempt to obtain summary judgment despite the evidence detailed above, ABC makes three arguments. First, ABC contends that Arnold did not know any of the details of Silva’s discrimination claim against Ballew. Such knowledge of the details, however, is not necessary; an employer violates Title VII if it terminates an employee because of that employee’s protected conduct, regardless of whether the employer knew the details underlying the protected conduct.
ABC next argues that Ballew did not qualify as an “employer”under Title VII, because it did not have a sufficient number of employees. Since Ballew was not an employer, according to ABC, Silva could not have reasonably believed that Ballew had violated Title VII; absent such reasonable
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belief, Silva’s discrimination claims should not be considered protected conduct. See Crumpacker v. Kansas Dep’t of Human Resources, 338 F.3d 1163, 1171-72 (10th Cir. 2003) (action based on unreasonable belief that a Title VII violation had occurred is not protected from retaliation; but employees must be able to report conduct they reasonably believe violates Title VII, without fear of retaliation). There are several problems with this argument.
First and foremost, as discussed below in the section of this opinion addressing Ballew’s motions, the Court provisionally finds that Bell Gas employees must be included in the number of employees to be considered with respect to the discrimination charge against Ballew. Doing so means the fifteen-employee requirement established by Title VII is met.
In addition, ABC presented no evidence concerning Silva’s beliefs or knowledge at the time she filed her charge of discrimination. The evidence presented by Ballew and by EEOC, in connection with Ballew’s motion, indicates the number of Ballew employees was at one time, during Silva’s tenure there, more than fifteen. Even by Ballew’s own count, which is disputed by EEOC, the number of employees dropped below fifteen only after two or three employees left, but remained at thirteen or fourteen during the relevant period. [Doc. 80, Ballew brief, p. 3] This is not a case, then, where any reasonable person would have automatically known that Ballew did not have a sufficient number of employees, for a sufficient period of time, to be considered an employer under Title VII’s definition of that term. It was therefore incumbent on ABC to present some evidence as to Silva’s state of mind, to prove she knew how many employees Ballew had, knew the definition of “employer”under Title VII, or for some other reason did not have a reasonable belief that Ballew had committed violations of Title VII when she filed her charge with EEOC. ABC presented no such evidence.
The Court also notes that EEOC, the agency in charge of enforcing Title VII, apparently believes Ballew violated Title VII and qualifies as an employer under that statute. It would be
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incongruous to hold, as a matter of undisputed fact, that Silva’s knowledge of Title VII is superior to that of EEOC and that she could not have had a reasonable belief that Ballew was covered by Title VII and had violated that law.
ABC’s final argument is that, accepting as true Arnold’s deposition testimony that he fired Silva at Eugene’s direction, no retaliatory motive can exist. According to ABC, Eugene had no connection to ABC and was not in a position of authority over ABC; his retaliatory intent, therefore, cannot be attributed to ABC. Also, Arnold cannot be found to have retaliatory intent of his own, because he was just doing what he believed he had been told to do. This argument is unconvincing. The bottom line is that there is evidence Arnold fired Silva because she had filed a discrimination claim against Ballew. Whether he did so against his wishes, and only because he thought Eugene wanted him to, does not change the impact of that evidence. In addition, the fact that he may have acted at Eugene’s behest, even though Eugene ostensibly had no authority to impose his will on ABC, similarly does not alter the legal impact of that evidence. Even if Arnold personally did not care about Silva’s discrimination claim against Ballew, and would not have fired her for filing that claim if he had not been directed to do so, the fact remains there is evidence he fired her because she had filed the discrimination claim. Given that evidence, ABC cannot be insulated from liability simply because Arnold may have followed the orders of a person who did not have the actual authority to give him such orders.2
In sum, there is evidence that Arnold was told about Silva’s discrimination claim against Ballew, fired her the same day, and told Jones that Silva needed to be terminated because she had a
2ABC cited no authority for this argument, other than general authority for the proposition that a retaliatory motive is necessary. The Court’s own research establishes that if a decisionmaker merely rubber-stamps a recommendation by a third party, as Arnold allegedly did here, that third party’s retaliatory or discriminatory motivation will be imputed to the decisionmaker. English v. Colorado Dep’t of Corrections, 248 F.3d 1002, 1011 (10th Cir. 2001); Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331-32 (11th Cir. 1999). This is true even if the biased third party had no power to fire the employee, as ABC claims is true in this case. Stimpson.
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lawsuit against Ballew. This evidence is sufficient to establish retaliatory intent for summaryjudgment purposes, despite ABC’s arguments to the contrary. 3
Back Pay: ABC argues that Silva’s right to backpay should be limited because ABC offered to reinstate Silva shortly after she was fired. As a general rule, "a Title VII claimant's rejection of a defendant's job offer normally ends the defendant's ongoing responsibility for back pay...." Ford Motor Co. v. EEOC, 458 U.S. 219, 241 (1982). However, “a rejected offer of reinstatement does not end ongoing backpay liability if the claimant’s rejection of the offer was reasonable given the form of the offer and the circumstances surrounding it.” Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1493 (10th Cir. 1989). The decision as to whether a rejection of reinstatement was reasonable depends on a number of different factors, including the following: (1) whether the offer of reinstatement was unconditional and included a return to the same job, at the same wage; (2) whether the claimant would have to waive her discrimination claim if she accepted the offer; (3) whether hostility caused by the circumstances of the termination was too great; and (4) the totality of the circumstances surrounding the termination and the offer of reinstatement. Id.; see also Smith v. World Ins. Co., 38 F.3d 1456, 1464 (8th Cir. 1994); cf. Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1178 (10th Cir. 2003) (discussing front pay rather than back pay; however, same principles appear applicable to both types of claims).
It should be noted that in the Tenth Circuit, an award of back pay in a Title VII case constitutes equitable relief to be made by the district judge, rather than damages to be awarded by a jury. Bartee v. Michelin North America, Inc., ___ F.3d ___, 2004 WL 1447976 (10th Cir.); McCue v. State of Kansas, 165 F.3d 784, 791-92 (10th Cir. 1999). Presumably, therefore, it is this Court’s
3While this issue has not been addressed by the parties, the Court notes that ABC’s possible liability for retaliation is not foreclosed by the fact that Silva’s protected conduct was directed toward a different employer, Ballew. An employer may not retaliate against an employee even if the employee’s underlying discrimination charge concerned a different employer. See McMenemy v. City of Rochester, 241 F.3d 279, 283-84 (2d Cir. 2001).
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responsibility to determine as a matter of fact whether Silva’s rejection of the reinstatement offer was reasonable.
Given the evidence presented to the Court at this point, the reasonableness issue cannot be resolved on summary judgment. Silva was fired on June 20th. On approximately July 11th, she received a telephone call from Gloria Jones, her friend and colleague at ABC. Jones asked Silva if she would go back to work for ABC, and asked her to fill out another application because her original application had been lost. [Exh. 3, ABC MSJ, Silva dep. p. 156] Silva understood that she was being offered her same job back, at the same pay. [Id., p. 159] However, Silva was never contacted directly by Arnold, who had fired her, or by any other management personnel at ABC; she did not receive a written offer of employment; and there is no evidence that she was assured she would not suffer any further negative consequences as a result of her discrimination claim against Ballew. Significantly, the Court notes that Eugene Bell, who allegedly caused Silva to be fired, was one of two persons (the other being Ray Bell, Eugene’s older brother) who had the right to approve or disapprove of raises or vacation time for ABC personnel, and would have had that power over Silva as well. [Exh. C, EEOC Resp. to Cortez MSJ, Eugene Bell depo. pp. 138-39] Silva refused to return to work because she thought she was offered her job back to get her to drop her claim, and because she was “real hurt” by what had happened. [Exh. 3, ABC MSJ, p. 157]
The Court finds there are issues of fact as to whether Silva’s status at work would have been significantly affected if Eugene knew she was back at work for ABC, whether the offer of reinstatement was sufficiently communicated to Silva, whether she reasonably believed she would be pressured to drop her claim against Ballew if she returned to her job at ABC, and therefore whether her refusal to accept the offer of reinstatement was reasonable. Summary judgment will therefore not be granted on the termination-of-back-pay issue.
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Injunctive Relief: ABC’s final argument is that there are no facts justifying injunctive relief in this case, and that EEOC’s request for such relief should therefore be dismissed from the case. The Court finds this issue is also not amenable to summary judgment, and should be resolved after further factual development. The Court’s decision to grant or deny injunctive relief in a Title VII case is discretionary, and once a violation of that statute is established the burden is on the defendant to show that further violations are not likely to occur. EEOC v. General Lines, Inc., 865 F.2d 1555, 1565 (10th Cir. 1989). As will be discussed below, there is evidence in this case that Eugene and Ray Bell (“Ray”) control ten to fifteen different corporations, which share interlocking management and administrative personnel and employ many people. Furthermore, the first thing Eugene did upon finding out that Silva had been hired by ABC, a corporation apparently operating within the Bell “empire,”was to either tell Arnold to fire her or, at minimum, to suggest a way she could be fired (for “falsifying”her application). The Court therefore will withhold judgment on the injunction issue until hearing testimony from Eugene or other management personnel at ABC, Bell Gas, or Cortez, as to the likelihood of further retaliatory actions against personnel who might complain about discrimination.
Bell Gas and Cortez Motions These Defendants both argue they were not Silva’s employer, and therefore cannot be held liable for any Title VII violation ABC might have committed. EEOC does not attempt to show that either Bell Gas or Cortez was Silva’s direct employer. Instead, EEOC’s claim against each of these Defendants is that Bell Gas, Cortez, and ABC were part of an “integrated enterprise,” such that ABC’s actions should be attributed to either Bell Gas, Cortez, or both. The integrated-enterprise theory has been used in the Title VII or other discrimination contexts for one of two purposes: (1) to show that a small enterprise with fewer than fifteen employees is actually part of a larger entity, so that the fifteen-employee threshold for Title VII liability can be satisfied; and (2) to impose liability
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for one entity’s actions on a different company or institution. See, e.g., Bristol v. Bd. of County Comm’rs of Clear Creek, 312 F.3d 1213, 1220-21 (10th Cir. 2002) (ADA case determining that County Commissioners were not employers of Sheriff’s Department employee and therefore had no duty to offer him reasonable accommodation for his disability); Calvert v. Midwest Restoration Servs., Inc., 2002 WL 1023659 (10th Cir.) (applying test to determine whether fifteen-employee minimum had been met for Title VII purposes); but see Anderson v. Pacific Maritime Ass’n, 336 F.3d 924, 928 (9th Cir. 2003) (stating that integrated-enterprise test does not determine joint liability, but instead determines only whether a defendant has met the fifteen-employee statutory requirement of Title VII). Some Circuits have rejected the use of the theory in the employment-discrimination context and have developed their own tests for resolving multiple-employer questions. See Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 85-88 (3d Cir. 2003); Papa v. Katy Industries, Inc., 166 F.3d 937, 940-41 (7th Cir. 1999); see also Anderson, 336 F.3d at 930-32 (applying different test for purposes of imposing liability on separate business entity). As noted above, however, the Tenth Circuit has approved of the use of the test and has applied it in several cases. See, e.g., Bristol, Calvert. The Court will therefore apply the theory in this case.4
Whether Integrated-Employer Question Is Jurisdictional: Defendants have raised the issue of whether their status as an employer under Title VII is a jurisdictional question, or is part of the merits of EEOC’s case. This is an important issue because jurisdictional questions are for the
4Defendants have argued that the integrated-employer theory should not be applied, because this case does not involve a parent corporation and a subsidiary. The theory is not limited to such situations, however. See, e.g., Bristol (test applied to governmental entities). Furthermore, all of the theories applied by the various courts that have addressed the matter agree that, where one company has exercised sufficient control over personnel matters and has directed the discriminatory act in question, Title VII liability can be imposed. See, e.g., Nesbit, 347 F.3d at 85 (when parent company has directed the subsidiary’s discriminatory act, single employer may be found for Title VII purposes). EEOC’s assertion in this case is that Bell Gas, Cortez, or both exercised control over ABC’s personnel matters and directed the retaliatory firing of Silva. The analysis and result in this case, therefore, would be the same under any test adopted by any Circuit to date.
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Court to decide, after finding the necessary facts, while the merits of a case are for the jury to decide. There is a split of authority in the Circuits on this question. Compare, e.g., Nesbit, 347 F.3d at 72 (fifteen-employee requirement under Title VII is element of the merits); Papa, 166 F.3d at 943 (same); with Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999) (fifteen-employee threshold is jurisdictional). In the Tenth Circuit, it appears that in some circumstances the integrated-employer question is jurisdictional, and in others it is not. See Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 978, n. 2 (10th Cir. 2003). Where the issue is whether the plaintiff’s “direct” employer, which has fewer than fifteen employees, should be considered integrated with other entities in order to reach the Title VII fifteen-employee threshold, the issue is jurisdictional. Id. However, where it is undisputed that plaintiff’s direct employer had fifteen employees, and the question is whether another entity should be considered integrated with the direct employer for liability purposes, the issue is part of the merits. Id. (citing Frank v. U.S. West, Inc., 3 F.3d 1357, 1361 (10th Cir. 1993), in which issue was whether parent corporation was plaintiff’s employer for liability purposes). In this case, the question regarding ABC’s relationship to Bell Gas and Cortez does not concern the fifteenemployee requirement; for that reason, the integrated-employer question is not jurisdictional and the Court will address it as a summary-judgment matter.5
Merits of Integrated-Employer Issue: “Courts applying the single-employer test generally weigh four factors: ‘(1) interrelations of operation; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control.’” Bristol, 312 F.3d at 1220 (citations omitted). The third factor, centralized control of labor relations, is generally considered
5The Court recognizes that the result of applying the Tenth Circuit’s position, with respect to case number 02-1213 involving Ballew and Bell Gas, will be somewhat problematic. In that case both questions are involved--whether the employees of Bell Gas should be aggregated with the Ballew employees to reach the jurisdictional threshold, and whether Bell Gas should be held liable for the alleged hostile environment that existed at Ballew. The Court will discuss this issue at more length below, in the section of the opinion addressing Ballew’s motions.
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the most important. Id. This centralized-control issue should not be addressed in a general way; instead, the critical question is what entity or entities made final decisions regarding employment matters involving the person claiming discrimination? Frank, supra, 3 F.3d at 1363. Analysis of the evidence presented to the Court, as applied to these four factors, establishes that a genuine issue of material fact exists on the question of whether Bell Gas, or Cortez, or both, make up part of an integrated employer with ABC.
The following evidence, viewed in the light most favorable to EEOC, has been presented by the parties in their summary-judgment materials: (1) Ray and Eugene Bell are brothers who “have” ten to fifteen companies [Exh. C, EEOC Resp. to Ballew Mot. Dism./S.J., Lancaster depo., p. 18];6 (2) For a number of years, Lancaster has been an “office manager” or “administrative assistant” for all of these companies [Id.]; (3) In that capacity, Lancaster’s job duties have included buying insurance for Bell Gas, Cortez, and ABC; reviewing the bank statements for all three of these companies; making sure there are sufficient funds in each company’s account to cover expenditures; and answering questions from employees of any of these companies [Id., pp. 16-18, 59-60; Exh. F, EEOC Resp. to Cortez MSJ, Lancaster depo. p. 9]; (4) Any salary increases for ABC employees must be approved by Ray or Eugene Bell [Exh. C, EEOC Resp. to Cortez MSJ, Eugene Bell depo. pp. 138-39]; (5) payroll checks for ABC, Bell Gas, and Cortez all contain Eugene Bell’s mechanical signature and are all issued by an entity called Petroleum Products Company, and payment on the payroll checks for all these companies comes out of one bank account [Exh. 4, Cortez MSJ, Harrell depo. pp. 119-21; Exh. A, EEOC Resp. to Bell Gas MSJ re: Ballew, Eugene Bell depo. pp. 135-37]; (6) Petroleum Products Company in fact is not a company or a corporation, it is just a “name on a piece of paper;” employees and managers of ABC, Bell Gas, and Cortez refer to the entity that issues
6It is not clear what Lancaster meant by using the word “have”; based on the other evidence contained in the record, the Court interprets the term to mean the Bells have ownership interest in, or some other type of control over, that number of companies.
11

their paychecks as the “payroll department” [Exh. C, EEOC Resp. to Ballew MSJ, Lancaster depo. pp. 38-40; Exh. D, EEOC Resp. to Bell Gas MSJ re: Ballew, Ray Bell depo., p. 101]; (7) a building at 1811 S.E. Main, in Roswell, has a sign in front that says “Bell Gas” and another sign that says “Cortez Gas,” and both companies are headquartered there [Exh. E, EEOC Resp. to Bell Gas MSJ re: Ballew, Gary Harrell depo. p. 20]; (8) all of ABC’s corporate records are kept in an office at 1811 S.E. Main; in addition, the payroll functions and bookkeeping are performed there [id., p. 1518; Exh. 2, Cortez MSJ, Harrell affid.]; (9) Mike Cleveland, who is an employee of Cortez, is the computer specialist for Cortez, Bell, and ABC; no one else performs computer work for those three companies; if Cleveland does work for ABC, ABC does not pay him a fee but would reimburse any expenses he incurred [Exh. B, EEOC Resp. to Cortez MSJ, Harrell depo. pp. 83-85, 107-08]; (10) Gary Harrell is the president of ABC, as well as a “supervisor” at Cortez who reports only to Ray or Eugene Bell; however, Harrell does not know the name of the alleged “payroll service company”that pays ABC employees [Id. pp. 5, 19, 21, 109]; (11) an “employee trust”allegedly owns ABC, and the Bells have no ownership interest in the company; however, Harrell does not know how much money he and Lancaster paid for the company when they bought it, although he was the primary person negotiating the purchase [Id. pp. 11-13]; (12) Ray and Gene Bell are considered to be in charge of ABC, Bell Gas, and Cortez, by most high-ranking personnel at those companies [Exh. G, EEOC Resp. to ABC MSJ, Arnold depo. pp. 49, 83-84; Exh. 9, Bell Gas MSJ re: Ballew, Madsen depo. pp. 50, 55-56, 68-69; Exh. 16A, Bell Gas Reply re: Ballew, Jobe depo. pp. 170-71; Exh. E, EEOC Resp. to Cortez MSJ, Cleveland depo. pp. 12-13; Exh. C, EEOC Resp. to Ballew MSJ/Mot.Dism., Lancaster depo. p. 14]; (13) Ray is the president and treasurer of Cortez Gas and Bell Gas, and Eugene is the vice president and secretary of both [Exh. B, EEOC Resp. to Bell Gas MSJ re: Ballew; Exh. A, EEOC Resp. to Cortez MSJ]; (14) employees and management personnel of both ABC and Ballew refer to 1811 S.E. Main as the “corporate office” or the “main office;” also, managers hiring
12

employees for ABC are required to check with “personnel”to determine whether previous employees of “I guess you could say the corporation” – other companies associated with the Bells – are “rehirable” or not [Exh. 1, ABC MSJ, Arnold depo. pp. 76, 78; Exh. 9, Bell Gas MSJ re: Ballew, Madsen depo. pp. 54-55]; and (15) in answering an EEOC request for information concerning ABC’s firing of Silva, the company identified Eugene Bell as the person making the final decision to discharge her [Exh. H, EEOC Resp. to ABC MSJ].
The above evidence raises genuine issues of material fact as to every factor considered by the courts in applying the integrated-employer analysis, except possibly one--the common ownership factor. It appears to be undisputed that ABC is owned by an employee trust, and that neither Ray nor Eugene Bell has an ownership interest in ABC. However, there is ample evidence of interrelated operations, including evidence that there is no separate payroll services company, but instead a payroll department that provides services to all the Bell companies; that all corporate records of ABC are kept at the “corporate offices” at 1811 S.E. Main; that the same management official, Lancaster, keeps track of the finances of ABC as well as many other Bell companies, including Bell Gas and Cortez; that Ray and Eugene Bell are considered the top level of management of all the Bell companies; and that a Cortez employee is in charge of computer operations for ABC, Bell Gas, Cortez, and other Bell companies. As to the common management factor, it is apparent there is a question of fact as to whether Ray and Eugene Bell are ultimately in charge of managing ABC as well as Bell Gas and Cortez--Larry Arnold’s testimony alone provides support for such a finding.
The most important factor to be considered is the centralized control of labor relations. There is clearly an issue of fact as to whether Ray and Eugene Bell are in control of all labor relations at ABC as well as Bell Gas and Cortez. Eugene Bell’s signature is on all paychecks issued to employees of the three companies; any raises for ABC employees or other employees of Bell companies must be approved by either Ray or Eugene; Arnold testified that he fired Silva because Eugene had made
13

it clear that is what should happen; and ABC identified Eugene to the EEOC as the person making
the final decision to discharge Silva. In addition to the evidence concerning ABC’s personnel office
and payroll department being located at the Bell Gas/Cortez Gas building at 1811 S.E. Main, this
evidence would be more than sufficient to allow a jury to determine that Ray and Eugene Bell
exercise control over all significant labor relations with respect to ABC, Bell Gas, and Cortez. See
Romano v. U Haul, 233 F.3d 655, 666 (1st Cir. 2000) (control of employment decisions most
significant factor).
In sum, there is evidence that ABC, although not owned by Ray or Eugene, is part of an
interrelated group of companies controlled by them in every significant aspect. This evidence is
sufficient to meet the requirements of the integrated-employer test as outlined in Bristol, and the Bell
Gas and Cortez motions for summary judgment must therefore be denied.7
Ballew’s Motions
Motion for Summary Judgment or Dismissal, on Jurisdictional Grounds: Ballew argues
that during the time the alleged hostile environment allegedly existed, it was not an “employer” as
defined by Title VII, because it did not meet the fifteen-employee threshold established by that
7The Court recognizes that liability may not be imposed on Bell Gas or Cortez merely by showing that those two companies, as well as ABC, are part of the same group of interrelated entities owned or controlled by the Bells. Otherwise, every subsidiary of a parent corporation could be held liable for discrimination committed by one subsidiary, simply because the subsidiaries are all under the detailed control of one parent. In this case, there is a significant amount of evidence showing that Ray and Eugene are in charge of a number of different companies, and that Eugene was the driving force behind the retaliatory firing of Silva. Those facts alone, however, may not be sufficient to hold either Bell Gas or Cortez liable for the acts of ABC or Eugene, if Bell Gas and Cortez are simply two more companies in the Bell “empire.” There is evidence in this case, however, that the Bells are officers and directors of both Bell Gas and Cortez, that the headquarters of the Bell “empire” are the Bell Gas/Cortez building at 1811 S.E. Main, and that all major administrative functions for ABC take place at that building. Thus, there is evidence that Eugene may have been acting in his role as a manager of either Bell Gas or Cortez, or both, when he involved himself in Silva’s firing, and that ABC is more of a subsidiary company of Bell Gas or Cortez, than an equal co-member of the Bell “empire.” This evidence would therefore be sufficient to find Bell Gas or Cortez liable for the allegedly retaliatory firing.
14

statute. In response, EEOC argues two things: first, that four Bell Gas employees who performed significant services for Ballew should be counted as Ballew employees for purposes of Title VII; and second, that Ballew and Bell Gas are engaged in an integrated enterprise, and for that reason all Bell Gas employees may be aggregated with Ballew employees to determine that Ballew is in fact an “employer”for Title VII purposes. EEOC cited no authority for the proposition that individuals who are admittedly employed by a different company may be considered employees of the discriminating company, in order to qualify the discriminating company as a Title VII employer. As discussed below, however, the Court finds there is at least a question of fact as to whether Bell Gas and Ballew are part of an integrated enterprise, and the Court will deny Ballew’s motion on that basis. Therefore, the Court need not address the “borrowed employee” theory EEOC is apparently attempting to argue.8
Integrated-Employer Theory as Jurisdictional Question: As noted in the previous section of this opinion, the Tenth Circuit has in effect held that the Court must decide whether the integratedemployer doctrine applies for purposes of reaching the fifteen-employee jurisdictional threshold, and the jury will then decide whether that doctrine applies for purposes of imposing liability on an entity that is not the plaintiff’s direct employer. See Trainor, supra, 318 F.3d 976, 978, n. 2. The first question to be answered is whether the two issues are redundant--that is, by deciding the issue with respect to the fifteen-employee threshold, does the Court preclude the jury from re-examining the issue for liability purposes? The Court does not believe this is true.
Even though the test is called the integrated-employer test for both purposes, and the same factors have been discussed in relation to both purposes, the Court finds the integrated-employer analysis is somewhat different for the fifteen-employee issue than for the imposition-of-liability issue.
8Similarly, the Court need not address EEOC’s argument that Ballew’s count of its employees omitted one or more employees, raising the count from fourteen to at least fifteen.
15

The Tenth Circuit has already impliedly held that this is true. In Bristol v. County Comm’rs, supra, 312 F.3d at 1220-21, the Tenth Circuit held that county commissioners were not an employer of a sheriff’s department employee, for purposes of requiring the commissioners to accommodate the deputy’s disability. In doing so, the Tenth Circuit distinguished Owens v. Rush, 636 F.2d 283 (10th Cir. 1980), which held that for purposes of the fifteen-employee threshold, the sheriff was an agent of the county, so all county employees could be included for jurisdictional purposes. The only basis for the distinction was the fact that Owens involved the fifteen-employee issue, while Bristol concerned the county’s liability. The Tenth Circuit did not explain why this distinction made a difference, but as discussed below the Court believes it is logical.
The purpose of the fifteen-employee minimum is obviously to exempt small employers from the expense and other burdens imposed by Title VII. Where separate entities are actually operating as part of a larger whole, it makes sense to allow aggregation of the employees for purposes of the jurisdictional requirement, because the “employer” involved in the case is not truly the type of small employer Congress intended to benefit by enacting the minimum. However, aggregating employees in order to impose liability on a separate entity, which may be separately incorporated, is a different matter which, in the Court’s opinion, requires somewhat different proof. The Court has already alluded to this distinction in footnote 6, supra. In this case, for example, there is evidence that Bell Gas and Ballew are part of a group of companies controlled by Ray and Eugene Bell. Furthermore, there is evidence the companies operate in an integrated manner. It is logical and fair, therefore, to aggregate the employees of the companies together in deciding whether the fifteen-employee threshold has been met, because Ray and Eugene Bell are obviously not small employers. However, because the companies are separately incorporated, the Court believes there should be evidence that Bell Gas was involved in the claimed discrimination in order to override the limited liability feature of incorporation and impose liability on Bell Gas for acts performed by Ballew. See, e.g., Frank v.
16

U.S. West, supra, 3 F.3d at 1362 (because law allows businesses to incorporate to limit liability and isolate liabilities among separate entities, there is a strong presumption that a parent corporation is not the employer of its subsidiary’s employees). Therefore, the Court will decide the jurisdictional issue of whether Bell Gas and Ballew are sufficiently integrated to allow aggregation of their employees for purposes of reaching the fifteen-employee threshold. The Court’s decision will not, however, prevent the jury from deciding differently for purposes of imposing liability on Bell Gas.
The Court must also address the issue of whether to make final factual determinations at this time, or to hold an evidentiary hearing and allow submission of further evidence. Based on the evidence submitted during the summary-judgment process, the Court is ready to make a final ruling. This is especially true since much of the evidence is undisputed or comes from statements made by Bell Gas or Ballew employees, or Ray and Eugene Bell. In the interest of fairness, however, the Court’s ruling on the issue will be provisional. Should Ballew or Bell Gas have any further evidence they wish to submit, or have good grounds to request an evidentiary hearing, an appropriate motion should be made within ten days of the date this opinion is filed.
Merits of Integrated-Employer Issue: Much of the evidence discussed above concerning the relationships between ABC, Bell Gas, and Cortez is similar for the relationship between Bell Gas and Ballew.9 For example, Eugene Bell’s signature is on all paychecks issued to Ballew employees as well as Bell Gas employees, and the checks are issued by same entity that, according to Lancaster, is just a name on a piece of paper, is not a separate company or corporation, and is commonly referred to as the payroll department; salary increases at Ballew had to be approved by Eugene or Ray; Lancaster bought insurance for Bell Gas and Ballew and reviewed the financial status of each company; the same computer specialist is in charge of the computers for Bell Gas and Ballew, as well
9The Court will not repeat the citations to the record that have already been provided in prior sections of this opinion.
17

as other companies; and Ballew’s corporate records, including personnel records, are kept at the Bell Gas/Cortez Gas building at 1811 S.E. Main.
In addition, there is other evidence in the record indicating that Ballew’s interrelationships with Bell Gas are even stronger than ABC’s relationships to Bell Gas and Cortez. A former manager of Ballew, Carroll Madsen, testified in his deposition that the computer program at Ballew was tied into the mainframe at Bell Gas, Inc. [Exh. 9, Bell Gas MSJ re: Ballew, Madsen depo. p. 66]. He also testified that Ray Bell had authority to write policy for Ballew, and that all bookkeeping for Ballew was done at the “corporate office”[Id., pp. 54, 68]. Lancaster testified that if Ballew’s bank accounts were not meeting expenditures, he would have Andrea Williams, a Bell Gas employee, review Ballew’s accounts receivable and try to collect amounts owed to the company [Exh. A, EEOC Resp. to Ballew MSJ/Mot. Dism., Silva affidavit; Exh. C, same, Lancaster depo. pp. 42-44]. Lancaster also testified that Ballew’s checkbook is kept at the Bell Gas/Cortez building, not at Ballew’s “other” office [Exh. C, id., p. 58]. Ray is the President and Secretary of Ballew and Eugene is the Vice President and Treasurer, and both are also officers of Bell Gas [Exh. C, EEOC Resp. to Bell Gas MSJ re: Ballew]. Eugene approved a vacation request submitted by Silva, when she was employed by Ballew [Exh. U, EEOC Resp. to Bell Gas MSJ re: Ballew].
Significantly, there is evidence that Ray and Eugene are in charge of preventing discrimination from occurring in the workplace at all the Bell companies, including Bell Gas and Ballew -- Ray testified that any employee of a Bell company could bring a complaint to him or Eugene, whether or not the company had an anti-discrimination policy in place. [Exh. J, EEOC Resp. to Cortez MSJ, Ray Bell depo. p. 100] Furthermore, there is evidence that Ray and Eugene are in charge of investigating discrimination claims. [Exh. W, EEOC Resp. to Bell Gas MSJ re: Ballew].
All of the foregoing evidence indicates Bell Gas and Ballew are two of a number of companies controlled by Ray and Eugene Bell, with interlocking management, cross-use of employees without
18

compensation, and other indicators of relationships that are closer than those that normally exist between fellow subsidiaries. Also, Ray and Eugene have ultimate control over most employment decisions made at Bell Gas and Ballew, including decisions to give raises to employees and even to allow them to take vacation time. Finally, Ray and Eugene are in control of the employment discrimination arena at these two companies. The Court therefore provisionally finds that the employees of Bell Gas and Ballew should be aggregated in determining whether the fifteen-employee minimum established by Title VII has been met.
Motion for Summary Judgment on Merits: Ballew has withdrawn most of this motion, leaving only the argument that EEOC’s request for injunctive relief should be dismissed. The Court notes the following: (1) Silva was not the only Ballew employee who filed a charge of gender-based harassment, although the other employee has settled her claim; (2) Carroll Madsen, the Ballew manager who has been accused of committing the alleged harassment, testified that he had a very brief meeting with Ray and Eugene, and that nothing happened to him after that meeting [Exh. H, EEOC Resp. to Bell Gas MSJ re: Ballew, Madsen depo. pp. 126-27]; and (3) as pointed out above, there is evidence that Eugene’s reaction to Silva’s discrimination complaint was hostile enough that he made it plain he did not want her working for ABC because of that complaint. The Court finds there is a dispute of fact as to whether injunctive relief might be warranted in this case to prevent future acts of discrimination against employees of any Bell company.10
10The Court notes Ballew’s argument that injunctive relief is inappropriate because Silva is no longer employed by Ballew, and therefore cannot benefit from any injunction that might issue. This argument is misplaced; EEOC is the Plaintiff in this case, not Silva. EEOC is entitled to obtain injunctive relief to protect current and future employees of Bell companies. See EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1253 (11th Cir. 1997) (claimant’s decision not to seek reinstatement did not prevent EEOC from pursuing broader equitable remedies, since EEOC and not the individual claimant was suing; EEOC represents the public interest when litigating claims, and, through injunctive relief, seeks to protect not only the rights of the individual claimant, but those of similarly-situated employees).
19

Bell Gas Motion for Summary Judgment The evidence discussed in the preceding sections raises an issue of fact as to whether Bell Gas should be held liable for any discrimination occurring at Ballew, under the integrated-employer test. A reasonable jury could find that Bell Gas, through its officers Ray and Eugene, has such authority over Ballew’s labor relations as to allow Ballew’s discriminatory actions to be attributed to Bell Gas.11 This motion for summary judgment will therefore be denied. Conclusion Based on the foregoing, all of the motions for summary judgment filed in both of these cases will be denied.
ORDER A Memorandum Opinion having been entered in this case, it is ORDERED that the following motions for summary judgment be, and hereby are, DENIED: ABC Propane’s motion for summary judgment on the merits (Doc. 82); two motions for summary judgment filed by Bell Gas, Inc. (Docs.83, 84); Cortez Gas Company’s motion for summary judgment (Doc. 85); and two motions filed by Ballew Distributing (Doc. 80 , 82). It is furthermore ORDERED that this Memorandum Opinion and Order be filed in both of the following cases: CIV 02-1212 and CIV 02-1213.
11The Court must again emphasize, however, that if Ray, Eugene, or both were acting in their capacity as officers of Ballew, rather than Bell Gas, and if Bell Gas is in the position of merely being a fellow member of the Bell “empire” of companies, no liability should be assigned to Bell Gas simply because its managers and directors are the same as those of Ballew.
20

Dated this 20th day of July, 2004.

ATTORNEYS:
For Plaintiff: Veronica Molina Loretta Medina
For Defendants: Mark E. Komer Erika E. Anderson

_____________________________ BRUCE D. BLACK United States District Judge

21

 
 IN THE UNITED STATES DISTRICT,C;g,yFi~h~~TC(;Lm FOR THE DISTRICT OF NEW MEXICOGT 0: ::2;'/ c.b'<1(;C,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

04SEP22 AHII:48

'Lr 1'T'nuC .,
I v

r_--1''""I1\,-,.'-1"1,.,.. ",.-",,

!i :1 ,,'
.;'-ll',.

1[;{1 . 1,\,,11;

, -

vs.

No. CV-02-1213 BB/LAM

BELL GAS INC., and BALLEW DISTRIBUTING,

Defendants.

CONSENT DECREE

This matter came before the Court upon the agreement of all parties to enter into a consent decree for the purposcs of settling all claims asserted against the defendants in this lawsuit. The Court finds that the parties have agreed as follows:
I. The United States Equal Employment Opportunity Commission (the "Commission" or "EEOC") filed this action against Bell Gas, Inc., and Ballew Distributing ("Ballew" or "Defendants"), to enforce Title Vll of the Civil Rights Act of 1964, as amended, 42 U.S.c. §2000e el seq. ('Title Vll"). In the Complaint the Commission alleged that Evelyn Silva was subjected to sexual harassment which created a hostile work environment.
2. The Defendants denied all allcgations of the PlaintifTand affirmatively statcd that Ms. Silva was not subjected to a hostile work environment and that Defendants had implemented policics and procedures to prevent and remedy any alleged harassment. Defendant Bell Gas, Inc. also asserted that it was not Ms. Romero's employer and was an improper defcndant.
3. Defendants acknowledge that Title Vll prohibits employers from unlawfully discriminating against an employee on the basis of race, color,religion, sex or national origin or retaliating against an employee who: (a) opposes practices madc unlawful by Titlc VII or a state

equal emplo}111cnt statute, (b) makes a charge of discrimination or assists or participates in an

investigation or proceeding under Title VII or a state equal employmcnt statute. or (c) files an

internal complaint of discrimination.

4. The parties do not object to the jurisdiction ofthc Court over this action and

waive their rights to a hearing and the entry of Findings of Fact and Conclusions of Law.

5. This Decree resolves all claims of the Commission against the Defendants.

including compcnsatory and back pay damages sought on behalf of Ms. Silva. injunctivc relicf,

attomey's fees and costs arising out ofthc issucs in this lawsuit.

(,.

In accordance with this Decrce, Evelyn Silva shall receive Ten Thousand Dollars

(S I0.000.00) to be paid by Defendants within five (5) business days of execution of this Dccrce.

7. The check provided for in paragraph 6 of this decree shall be madc payable to

Evelyn Silva and shall be mailed to the address provided by EEOC.

S. Within ten (10) days of issuance of the check rcquired by paragraph 6 above.

Defendant shall submit a copy of the check and relatcd correspondence to the Regional Attorney,

Equal Employment Opportunity Commission. Albuquerque District Office, 505 Marquette NW.

Suite (JOO. Albuquerquc. NeIV Mexico 87102-2189.

9. Defendant. Bell Gas. Inc .. is already the subjcct of a Consent Decree entered in

the mailer of Equal Employment Opportllllity Commission. Plailllij): Christine Romero. Plailll(fJ-

in-bac/WlIlion v. Bell Cias. fllc.. el al. Dcfclldallls. CIV-02-1090 WPJ/ACT. filed in the United

States District Coun for the District of New Mexico on April 6,2004. A copy of that Consent

Decree is Huached hereto as Exhibit A. It is understood and agreed that as consideration for the

scttlement herein, Bell Gas. Inc. is obligated to undertake the policies and training provided in

paragraphs,) through 14 ofthc Consent Decrce attached hereto as Exhibit A. In addition.

COI/It·,II Decree (c/V-02-12/3 JPll.AMj

Defendant Ballew Distributing, Inc. shall also participate in the policies and training set forth in paragraphs 9 through 14 of the Consent Decree attached as Exhibit A.
10. The parties agree to entry of this decree, subject to final approval by the Court. 11. In response to any employment inquiries or reference checks concerning Ms. Silva, defendants shall only provide only Ms. Silva's dates of employment, position held,job duties and salary. 12. Upon entry of this Consent Decree, this case, as it relates to the claims by Plaintiff, shall be dismissed with prejudice, with the Court retaining jurisdiction for the purposes of enforcement of the terms of this Consent Decree. Each party will bear its own attorney's fees and costs. IT IS THEREFORE ORDERED, ADJUSTED AND DECREED as follows: A. The settlement. including the terms of this Consent Decree. is hereby approved. B. Each party shall bear its own attorney's fees and costs. C. All claims asserted by the Plaintiff against the Defendants are hereby dismissed with prejudice. with the Court retaining jurisdiction for the purposes of enforcement of this Consent Decree during its two (2) year ternl.
United States District Judge

COllsellt Decree (C!V-OZ-!2!3 jPILAM)

30[4

AJ>J>ROVED AND CONSENTED TO:
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Allomeys for PIliiIIIiff
VERONICA A. MOLINA, Esq. Trial Attorney Loretta Medina Senior Trial Attorney
505 Marquette: NW, Suite 900
Albuquerque, NM 87102
LONG. POUND & KOMER, P.A. Allomc:ys.!iJ/" Dc/cllc/(IIIIS
MARK E. KOMER NA1\CY R. LONG
2200 Brothers Road
P. O. Box 5098 Santa Fe, NM 87502-5098

COIl.h'm Deere'£' (el 1"-02-/ ~ 13 JPILA Al)

4 of·/

.' .

IN THE ll~rrED STATES DISTRICT couR-IFH LIE D FOR THE DISTRICT 01' NEW i\1f!~lft-4}ST~TES D/STR/CtCOUAT

.

lIQlIERQUE. NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY"

APR 6 ZOO~

COMMISSION

Plaintiff, CHRISTINE ROMERO.
PlaintilT in Inlervcntion

. " ...... : po

·CLERK

'. '. -'.' ...

v.

CIV-02-I090 WI'.I/ACT(ACE)

BELL GAS, INC., ct al

Dcfmdanls,

CONSENT Il[CREE

This malTer c·amc before the Court upon Ihe agreement of all parties to enter into a

consel1l decrec for the purposes of sell ling all claims asserted ,lg,linst the defendants in this'

lawsuit. Thc Court finds that the pal1i.:s have agreed as follows:

I. The- United States Equal Emplojment O)lportllnity Commission (the

"Commission" or "EEOC") filed this action against B~II Gas Incorporated. A-X Propane. Inc..

Cortez Gas Company, Black Gold Energy Corporation. d/b/a A-X Express Mart and Conoeo
11155, of Socorro, New ,\1exieo !,·Defenualll"J. to cnfll!'ec Tille VIIllfthe Ci\'il Rights Act "e

1964, as amended. 42 U,S,C. §2000e £'/ seq. ("Title VI\"). In the Complaint the Commissillil

alleg~d that the Defendants subjected Christine Romero to verbal and physical scxu,ll

harassmcnt by her immediate supervisor. Ray Hidalgo, which created a hoslile work

cn\'imnment. The Commission also alleged in the COQlj)laint'that Christine Romero was

retaliated a~inst by the Defendants for complaining about the sexual harassment and. as a

result, Christine Romero was either discharged or constructively discharged by the DctcndanlS in

(----
j Exhibit A

violation of Title VII.

2. The Defendants denied all allcg.llions of the PlaillliCrand Plaintiff-in-Intervention

and atlimlatively stated that Ms. Romero wus not subjccted to a hostile work "n\'ironment and

that the Defcndants exercised reasonahle care to prevent and properly correct any alleged sexual

harassment. Defendants Bell Gas, Inc .. Cortez Gas Company and Black Gold Energy

Corporation also asserted that they were not Ms. Romero's employer and were improper

deCendants. The Ocrendaills also denied that Ms. Romero was retaliated against l'or engaging in

protected conduct.

3. Defendants acknowledge that Title VI! prohibits employers from unlawflilly

discriminating against an employee on the basis of race, color, religion. sex or national origin or

retali:1ting against an employee who: (a) opposes practices made unlawful by Tille VII or a ~tate
,II' equal employment statute, (b) makes a charge of discrimimltion or assists or pal1icipatcs in

investigation or proceeding under Title VII or a state equal employment statute. or (el liles an

internal comiliaint of discrimination.

4. . The parties do nOI.object to the jurisdiction 0(' the Court over this actioll and

waive their rights to a healing and Ihe enlry ofFindings of Fact and Conclusions of Law. 5. This Decree resolves all claims of the Commission against the

Defendanls, including compensalory and back pay damages sought on behalf of Ms. Romero,

injunctive relief, t1uomey's fees and COSls arising out of the issues in this lawsuit.

6.

In accordance wilh this Decree and wilh her signcd Releasc ami lndelllni rying

Agreement, Christine Romero shall receivc the following payments from the dcfendants:

A. Sixty thousand dollars (SGO,OOO.OO) to be paid within ten days of the elitry

of this Decree.

(~t'nscl1l Decrel'; Christine Romero

B. Two thousand dollars (52,000.00) pcr inonth for sixty (IiO) months

hcginning on May 1.2004.

7. The checks provided for in paragraph 6 of this decrt:e shall be mack

payablc to Christinc Romero and her attorneys Kennedy & Oliver. P.c.. and shall bc mailed

directly via first class mail to Ms. Romer<) c/o Kcnncdy & Oliver.P.c.. IOOC) Second Street

fI.:.W .. Albuquerquc, Ncw Mcxico 87102.

8. Dcfcndants' obligation for the periodic payments sct forth in paragraph 6(S) shall

be securcd by a mortgage lien on real property to bc idcntified by the Defendants. The mortgage

will be in a usual and customary foml for such PLlIlloses. It will provide that the amount of the

mortgagc lien shall he reduced as the DClendants make thc periodic paymcnts. Once the final

payment is made, thc mortgage shall bc deemed released, and Romcro will execute all

appropriate documcnts necessary to release the mortgage or any cloud on title to the real

property deriving from the mortgage. Defendants shall idcntify the property via a letter from

counsel to Kennedy & OIivcr within ten (10) days of the entry of this decree.
,
9. The Dcfcnd!lIlts shall institute and carry out polices aimed at fostering a work

environment free from sex discrimination, incluuing sexual harassment of its employees, and thar allow employees to raise concems <'r cOlllplaints without retaliation about matters ll1ad~

unlawful by Title VII, whether alleged, perceived or actual. D~rendal1ls shall distribute eopics or

their sexual harassment policics 10 each of their CUtTent full and.part-limc employees. and tl)

each new employee hired for the duration of this decree.

10. The i)ercnd!mts slwll provide training on sex disc.riminmion and Iwrassmelll

according to the following terms:

1\. The Defendants shall retain and pay fora consultant/lecturer who shall

Cons.III Decr.l·: Christin. Romero

-3-

provide consultation and training for one seminar-training session each year this decree is in

effeet for a total of two (2) years. All corporate officers, direc·tors, managers, supervisors and

employees of the Defendants shall attend the first seminar-iraining session. For the second year

session, those employees who work more than lilly (50) miles Irom the site of the twining

session may. in lieu of allendanc.e in person, vicw a videotape in the same fashion as new employees as set forth in Paragraph f. Duplicative sessions may be held to accommodate

staffing needs. The Defendants shall b... responsible for any additional costs to provide sueh

duplicative sessions.

B. The lirst s..:minar-training scssioil sh;111 be conducted within three months

.. ofthc entry of this <iceree.
C. The consultant/lecturer shall be a person(s) acceptable to the Commi~si(\n.

The Defendants shall submit thc namc(s),address(es), telephonc numhcr(s) and

rcsume(s) of the proposed consul!antllccturer(s) together with the dates of the proposed

seminar-training scssions and the details of the contents oftlie training to the Regional

Allorney of the Albuquerque District Office of the Equal Employmcnt Opportunity

Commission within thirty (30) days of the entry of this decree. The Commission shall have thirty (30) da~s from the date ofrcceipl of the information described ahove to

accept or reject the proposed consultant/lecturer and/or thc contents of the training. In

the event the Commission does not approvc the designated consultant/lecturer, the Commission shall designate the conslillal1l/lcctllr~r which shall be paid by the Dcfcndams

at a cost not to exceed 5 I,500 per seminar-training session.

D. The seminar-training sessions shall be no less tban two hours of

instruction. All personnel. designatcd in paragraph A shall both register for and .1Iend

Consent Decree; Christine Romero

-.J-

the seminar-training sessions. The registry of atlendancc sh,,11 be retained h)' the

Defendants for the duration of the decree.

E. The tmining shall include the subject of what constitutes sex

discrimination, including sexual harassment, harassment based on gender and retaliation; .

that sex discrimimltion in the hiring, firing,'compensation, assignment or other terms,

conditions or privileges of emplo)11lcnt and retaliation violates Title VII: how to prel'ent

sex discrimination and retaliation, how to provide a work environmcnt frce trom sex

discrimination, sexual harassment and retaliation, and to whom and by what mcans

employees may complain if they feel they have been subject to sex discrimination, sexual

harassment and rctliliation in the workplace.

F. Ncw employees shall atlend any seminarctraining scssions required by this

decree; employces hired after the seminar-training scssions arc presented shall. within ten

t J0) days of their hire, view a video tapc orthc training andlor a professional training

tape which covers the topics set forth in paragraph E and shall be given any wrillcn

material disscminated at the seminar-training sessions for the duration of this dcercc.

G. During the first six (6) months of this agreement, all individuals designated by the Defendants to receive, investigate or take any action in response te·

complaints of sexual harassment and retalimiori, shall attend Commission-approved

training on the processing of sexual harassment complaints, ilicluding, but not limitcd 10,.

proper investigation of complaints. Infonnation concerning the proposed training under"

this paragraph shall bc submittcd to the Regional Allorney, 505 \1arquelte, NW, Suite

900, Albuquerque, Ncw \1cxico, within thirty (30) days of the entry of this Consent

Decree. The infommtion will include the name, address and qualifications and

Cons_nr D¢cr¢c; ellri",in. Rom_ro

-5-

- - - - - - _..- -----------_....._-_.

experience of the proposed trainer. an outline oftl\e proposed training and the d:ltcs.

times and 10c,Ition oflhe proposed training. Defendants slwll be responsihle I()r p<lying

for such training sessions at a cost not to exceed $1,500.00.

11. The Commission, al ils discretion. may designat~ Cum mission representatives to

attend and participale in the seminar-Iraining sessions described ahove, and the representative

shall have the right to allend and fully panieipate in lilt: sessions. The Commission will provide

5-day notice to Delcndallls' counsel of its intcntto participate or attend the seminar-training

session described above.

12. Each Defendant shall post within 30 days of the entry orthis Consent Dccree lor

the duration of this decree in a prominenl placc frequ~nted by its employees. a copy of the

Notice applicable to each Detcndmlt allached 10 this decree',ls Exhibit A. This Notice slwll be

the same type. style and size as in Exhibit A.

13. The Defendants shall report in writing 10 the Regiunal Attorney of the

COlllmission's Albuqucrquc Area Olnee ,II 505 ~arquettc, NW. Suite ')00. Albuqucrque. I\CI\' Mexico 87102. beginlling six ('6) months from the d:ltc oftilc ~Ill'ry of this decree and thercaner

evcry six (6) months for the duration of the decree the following infonnation:
"':." '.
A. Any chunges, modi tications. revocations or revisions to its policies and

procedures that concel11 or affect the subject of sex discrimination.

B. Any c.hanges. modifications, revocations or rcvisions to its policies and

procedures lhul'concern or uffcctthc subjcct·ofretulilllion. C. The registries of persons u!lending each of th~ seminar-training sessions'

required in paragraph 10 oflhis decree and '1.listllf current employees on the day of the

seminar-training session, along with a statement that the.training sessioJls dcscribed ill

Consenl Dt~ree; Christin<.' Romero

-fi-

-------~--.---- - _ .

paragraph 7 of this. decree were completed.

14. This decree shall expire by its own tenns at the end of two (2) years after entry.

without further action by the parties.

15. The parties agrce to entry of this decree, subjcct to final approval by the Court.

16. The Defendant shall expunge from the personnel files of Christine Romero all

references to the charge of the discrimination tiled against the Deli;ndant. In response to any

employment inquiries or reference check concerning Christine Romero. the Dcfel1dalits will only

proville the dates of Ms. Romero's employment. position held. job duties and salary.

17. Upon entry of this Consent Decree. this case, as it relates to the claims by

I'laintilfand Phlintiffin Intervention. shall be dismissed witb prejUdice. with the Court retaining

jurisdiction for the purposes ofenforc.cment of the terms of this Conselit Decree. Each party will

bear its own attorney's fees and costs.

IT IS THEREFORE. ORDERED. ADJt.:DGED A:'>JD D,ECREED as fullo\\'5:

I. The settlement. including the tenllS of this Consent Decree. is herehy approved.

2. . Each party shall bear its own attomey's fees and costs.

3.

All claims asserted by the Plaintiff EEOC and Plainti[j~in-[ntervention Christine

Romero against the Defendants arc hercby disn.lissed with prejudice. with the Court retaining
.jurisdiction for the purposes of enforcement.ofthis Consenl

lION. WILLIAM P. JOH United SHlteS District Judge

CllllSl,,'nl DC't:rec; Christine Romero

·7-

.. ~.'~

"

'.

APPRO\,~:D AND CONSENTED TO:

VERONICA A. MOLlI'A. E~q. Trial Altorney I.<lrclta Medina S~nior Trial Altomey Equal Employment Opportunity Commission 505 Marquette, NW. Suite 900
Albuquc:rque, NM 87102 Allol"I"~~:I'PJ" Plailllifl
KENNEDY & OLIVER, I'.C.
Telephonically appro\"ed on 04/05/04 hy Shannon L. Oliver SHANNON L OLIVER. Esq. JOSEPH 1'. KENNEDY, Esq. 1000 2nd Street. NW Albuquerque. NM 87102 Allorlley.>jor Plaill/iO'ill Illle,,'clI/;1JI1
HERRERA. LONG. POUND & KOMER. P.".
Telephonic:ally approved on 04/02104 by Mark E. Komer
MARK E. KO:'v1ER. Esq. NANCY R. LOl\G. Esq.
P.O. Box 509S
. Santa Fc:. N~1 87502-5098
.., f/o,.,u.:n· .f;JI' J)f!ji.'m/'.JIl t,'
"Edl Go.\", COl'lt'S G,l.\' {}luI A.r P)"o/,t'JIIl!. JilL'.
. Telephonically approved 04/02/04
by Rav Hidalgo RAY HILDAGO, Pro Sc
P.O. Box 542 Socorro, NM 87801

C{UlSCnl Dtcret': Christim: Romero

-8-

.. , ',' ,

. II.. _ : ....

• "~

•• ,

,'NOTICE TO ALL ltivipLoVEES

, ,

OF AX ,.. PROPANE. INC.
.-- ',. .• J ' ,','

It is unlawful undL!r federal law (Titk VII of-the'Civil Rights Act) and state
law (Ncw Mexico Human Rights Act) to disc~inliliute against an employee 011 the basis 'of.sex in ,hiring. Ii ri ng, compClisatlori or ~tl;er tenns, and conditions or privileges,of ernployment, incllldi~g'sexlial i'lara'ssmcnt.

It is also unlawtltl, illldcr fedc.ntllaw (Title VlI of'the Civil Rights Act) and

state hiw (I\L!W Mexico Human Rights Act) to retaliate against an cmployee or

former employee for 0) opposing discriminatory practices made unlawful by

, fedcnil law; (2) 'filing a charge or assistiilg'or participating in the filing of a

• charge ofdiscriillination; or (3) assisting,or participating in an investigation or

proeeedingbrOl;g'llt under Title VII. '

"

-•

J •

A-X Propane Inc: Incorporated will not discriiniriatc on thc basis ofsex and will
a not reiilliate' agains't uny employee who opposes practice made unlawful under

federal law.liks, assists or participates in the filiilg of,j charge ofdiscrimination

. or participates in any investigation under Tide Vii, or who tiles a grievance

.. alleging discrimination.

I

,

. ,

; If you believe you have been discrilllina~ed agahist or retaliated agaiQst, ):~u have the right to seek'assistance frolll and file a charge

of discrimination with the:

, 1) li:S. ,Equal Emplo~'ment OPPo,rttmityCommission (EEOC),

505 Marquette. Suite 900, Albuquerque', New Mexico 87102,

.,,

" (505 }24..S=S20 I or 1-800-669-400.0. : ,or '

The New Mexico ])epartmentofLahor. Human Rights Division

, '(:"JMHRD),' 1596 Pacheco SI., Sitilel 0.3: Santa fe, New Mexico

87505, (505)827-6838.

. . ,. ::~,

-"

.. ; ..

EXHIBIT A

...... ,.,', .
'.,-, " .
"

.. ,

. . ,'" ~:-,,:",'

,".

· .

NOTICE TO ALL EMPLOYEES OF RELLGAS. INC.

It is unlawful under federal law (Title VII of the Civil Rights Act) and state law (New Mexico Human Rights Act) to discriminate against an employee on the basis of sex in hiring, tiring, compensation o~ other terms, and conditions or privileges of employment, including sexu,ll h,irassment.

It is also unlawful under federal law (Title VII of the Civil Rights Act) and

state law (New Mexico Human Rights Act) to retaliate against an employee or

fonner employee for (I) opposing discriminatory practices made unlawful by

federal law; (2) filing a charge or assisting or participating in the filing nf a

charge or discrimination; or (3) assisting or paJ1icipating in an investigation or

proceeding brought under Title VII.

.

Bell Gas Incorporated will not discriminate on the basis of sex and will not retaliate against any employee who opposes a practice made unlawful under federal law, files, assists or participates in thc tiling ofa charge ofdiscrimiJ.,ation or participates in any investigation under Title VII, or who files a gricl'anc.: alleging discrimination.

If you believe you have been discriminated against or retaliated against, you have the right to seek assistance from and tile a charge of discrimination with the:

1) U.S. Equal Employment Opportunity Commission (EEOq, 505 Marquette, Suite 900, Albuquerque, New Mex ico 87102.
(505) 248-520 I or 1-800-669-4000; . or

(2) The New Mexico DepartmentofLabllr, Human Rights Division (NMHRD), 1596 Pacheco St., Suite 103, Santa Fe. New Mexico 87505, (505) 827-6838.

EXHIBIT A

.~ I'. ' ; .

- . ..

NOTICE TO ALL EMPLOYEES

. OF CORTEZ GAS COMPANY

.. .

.. ... ~

It is unlawful under federalla\\' (Title VB oftheTivil Rights Act) and ~tatc

law (I\:ew Mexico Hunwn Righls Ad) 10 discririiinate against an employee on

the basis efs·ex i.n"hiring. tiring. compensatioit or othct'"terms, and conditions

" or pri\·ilc, g. es of cmplllyt~lent. including sexual harassment. ., .' ..
" It is IIlso· unla\vful under federalla\,: (Title VIL~( the Civil Rights Act) and

state law (New Mexico Human Rights Act) to retaliate against nn employee or

· former employee for (I) opposing discriininatory practices made unlawful by

federal luw;'(2) filing a charge or assisting br partiCipating in the tiling ofa

· charge ·ofdiscrimiliation; or (3) assisting or.lxirticipating in an invcstigation or

, procceding brought under Title VII: ."

Cortc:! Gas·Company Incorporated will not discriminate on the basis ol"se.\ and

, will not rctaliat~.!1gainst any employee \vh6 [)IJpos.:!s a practicc nwde IInlawful

under tederul la·\\;. tiles. assists or participates in"· the tiling of a charge of discriminaiion or participates in any inves~igal;on ~ilder Title VII. or who lih:s

.:. a grievunce alleging discrimination"

.....

!

.

. ~ I .l"~'

,

If you believe you have been discriJ!1inated against or retaliated

against, you hne the J'ight to seek assista·ncefrom and file a charge

· of discrimination with the:

. ,"

I) U.S. Equal EmploymentOpportuliiW Commission (EEOq,
.·50;; Miu"quetle, Suite 900, Albuquerque, New Mexico 87102. (505.) 248-5201 or 1-800-669"4000: or,
.. ,
", (2) .The i\ew :\1exico DepartmentofLah"or,.J-Iuman Rights Division
(NMHRD). 1596 PachceoSt., SuiteI03,Sanla Fe, New Mexico
87505, (50S) 8 2 7 - 6 8 3 8 , " '

. ~. .'.
EXIIIBlT A

. •

:r ..

,-

" '

... .. ~,

; ...

I ..

 
 Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 1 of 15

IN THE UNITED STATES DISTRICT,<;Q,YFi~h~~TCCLnl
FOR THE DISTRICT OF NEW MEXICOGT o: ::t';'i c.b'<\:C•

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

04SEP22 AH11:48
., ,--"' ...... "' r--r,nuc ' ·Lr r'"l\-.'-\1 "'' :r ,c..:t , !i V _I \• ,._!,..-,_;'-ll,'..,. I o\,1( -

vs.

No. CV-02-1213 BB/LAM

BELL GAS INC., and BALLEW DISTRIBUTING,

Defendants.

CONSENT DECREE

This matter came before the Court upon the agreement of all parties to enter into a consent decree for the purposes of settling all claims asserted against the defendants in this lawsuit. The Court finds that the parties have agreed as follows:
I. The United States Equal Employment Opportunity Commission (the "Commission" or "EEOC") filed this action against Bell Gas, Inc., and Ballew Distributing ("Ballew" or "Defendants"), to enforce Title Vll of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (''Title Yll"). In the Complaint the Commission alleged that Evelyn Silva was subjected to sexual harassment which created a hostile work environment.
2. The Defendants denied all allegations of the PlaintifTand affirmatively stated that Ms. Silva was not subjected to a hostile work environment and that Defendants had implemented policies and procedures to prevent and remedy any alleged harassment. Defendant Bell Gas, Inc. also asserted that it was not Ms. Romero's employer and was an improper defendant.
3. Defendants acknowledge that Title Vll prohibits employers from unlawfully discriminating against an employee on the basis of race, color,religion, sex or national origin or retaliating against an employee who: (a) opposes practices made unlawful by Title VII or a state

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 2 of 15

equal empi0}111Cnt statute, (b) makes a charge of discrimination or assists or participates in an

investigation or proceeding under Title VII or a state equal employment statute. or (c) Iiles an

internal complaint of discrimination.

4.

The parties do not object 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.

5.

This Decree resolves all claims of the Commission against the Defendants.

including compensatory and back pay damages sought on behalf of Ms. Silva. injunctive relief,

attomey's fees and costs arising out of the issues in this lawsuit.

6.

In accordance with this Decree, Evelyn Silva shall receive Ten Thousand Dollars

(S I0.000.00) to be paid by Defendants within five (5) business days of execution of this Decree.

7. The check provided for in paragraph 6 of this decree shall be made payable to

Evelyn Silva and shall be mailed to the address provided by EEOC.

S.

Within ten (I 0) days of issuance of the check required by paragraph 6 above.

Defendant shall submit a copy of the check and related correspondence to the Regional Attorney,

Equal Employment Opportunity Commission. Albuquerque District Office, 505 Marquette NW.

Suite <JOO. Albuquerque. Ne\\' Mexico 87102-2189.

9.

Defendant. Bell Gas. Inc .. is already the subject of a Consent Decree entered in

the matter of Equal Employment Opportunity Commission. Plaintij): Christine Romero, Plailll(ff-

in-bztetwntion v. Bell Cias. Inc.. eta/. Defendants. CIV-02-1090 WPJ/ACT. filed in the United

States District Court for the District of New Mexico on April 6, 2004. A copy of that Consent

Decree is attached hereto as Exhibit A. It is understood and agreed that as consideration for the

settlement herein, Bell Gas. Inc. is obligated to undertake the policies and training provided in

paragraphs 9 through 14 of the Consent Decree attached hereto as Exhibit A. In addition.

COIIR'II/ Decree (C/V-02-12/3 .JPII.AM)

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 3 of 15
Defendant Ballew Distributing, Inc. shall also participate in the policies and training set forth in paragraphs 9 through 14 of the Consent Decree attached as Exhibit A.
I0. The parties agree to entry of this decree, subject to final approval by the Court. II. In response to any employment inquiries or reference checks concerning Ms. Silva, defendants shall only provide only Ms. Silva's dates of employment, position held, job duties and salary. 12. Upon entry of this Consent Decree, this case, as it relates to the claims by Plaintiff, shall be dismissed with prejudice, with the Court retaining jurisdiction for the purposes of enforcement of the terms of this Consent Decree. Each party will bear its own attorney's fees and costs. IT IS THEREFORE ORDERED, ADJUSTED AND DECREED as follows: A. The settlement. including the terms of this Consent Decree. is hereby approved. B. Each party shall bear its own attorney's fees and costs. C. All claims asserted by the Plaintiff against the Defendants are hereby dismissed with prejudice, with the Court retaining jurisdiction for the purposes of enforcement of this Consent Decree during its two (2) year tern1.
United States District Judge

Consent Decree (C/V-OZ-1213 JP/LAM)

3of4

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 4 of 15
AI'J>ROVED AND CONSENTED TO:
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AIIomeys for PIaiIlliff
VERONICA A. MOLINA, Esq. Trial Attorney Loretta Medina Senior Trial Attorney
505 Marquette: NW, Suite 900
Albuquerque, NM 87102
LONG. POUND & KOMER. P.A. Allomc:ysfiJr Dcfcnd<mls
MARK E. KOMER NA!\CY R. LONG
2200 Brothers Road
P. 0. Box 5098 Santa Fe, NM 87502-5098

Con.h·nt D('crc·c (CI V-02-1 ~ 13 JPILAMJ

4 of·/

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 5 of 15

.• .

LE .D IN THE li~ITED STATES DISTRICT COUR-/FH FOR THE DISTRICT OF NEW Mf!~Jft-4}ST~TES DISTRICT COURT

.

L/OlJEROUE. NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY .

,

COMMISSION

APR 6 ZOO~

Plaintiff, CHRISTINE ROMERO.
Plaintiff in lnlervcntion

·. ... ",'': ,.

-CLERK

..'• -·.- ...

V.

CJV-02-1090 WP.I/ACT (ACE)

BELL GAS, INC., ct al

Dcfmdants.

CONSENT IlECREE

This malfer c.amc before the Court upon Ihe agreement of all parties to enter into a

consem decree for the purposes ofsellling all claims asserted :tg:tinst the defendants in this·

lawsuit. The Court finds that the pat1i.:s have agreed as follows:

l. Thc United States Equal Emplojment Opportunity Commission (the

"Commission" or "EEOC"l filed this action against B~ll Gas Incorporated. A-X Propane. Inc..

Cortez Gas Company, Black Gold Energy Corporation. d/b/a A-X Express Mart and Conoco 1!155, of Socorro, New .\1exico (''Defendalll"J, to cnf<ll'CC Title Vll<'llhe Civil Rights Act llf'

1964, as amended, 42 U.S.C. §2000e £'1 seq. ("Title VII"). In the Complaint the Commissilln

alleg~d that the Defendants subjected Christine Romero to verbal and physical sexual

harassment by her immediate supervisor, Ray Hidalgo, which created a hos1ile work

cnvimnment. The Commission also alleged in the Conli)laint.that Christine Romero was

retaliated a~inst by the Defendants for complaining about the sexual harassment and. as a

result, Christine Romero was either discharged or constructively discharged by the Dctcndanls in

(----
! Exhibit A

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 6 of 15

violation of Title VII.

2. The Defendants denied all allcg•llions of the Plaimifl'and Plaintiff-in-Intervention

and atlim1atively stated that Ms. Romero was not subjected to a hostile work t:nvironment and

that the Defendants exercised reasonable care to prevent and properly correct any alleged sexual

harassment. Defendants Bell Gas, Inc .. Cortez Gas Company and Black Gold Energy

Corporation also asserted that they were not Ms. Romero's employer and were improper

defendants. The Dcfendams also denied that Ms. Romero was retaliated against lor engaging in

protected conduct.

3. Defendants acknowledge that Title VI! prohibits employers from unlawftllly

discriminating against an employee on the basis of race, color, religion. sex or national origin or

retaliating against an employee who: (a) opposes practices made unlawful by Tille VII or a ~late

equal employment statute, (b) makes a charge of discrimination or assists or pal1icipatcs in'"'

investigation or proceeding under Title VII or a state equal employment statute. or (c) Iiles an

internal comJ!lainl of discrimination.

4. · The parties do nol·object to the jurisdiction of' the Court over this action and

waive their rights to a heming and the entry ofFindings of Fact and Conclusions of Law. 5. This Decree resolves all claims of the Commission against the

Defendants, including compensatory and back pay damages sought on behalf of Ms. Romero,

injunctive relief, auomey's fees and costs arising out of the issues in this lawsuit.

6.

In accordance with this Decree and with her signed Release ami !ndcmni fying

Agreement, Christine Romero shall recci\'c the following payments from the defendants:

A. Sixty thousand dollars (SGO,OOO.OO) to be paid within ten days of the etitry

of this Decree.

(~t,nscm Decret.·: Christine Romero

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 7 of 15

B. Two thousand dollars ($2,000.00) per inonth for sixty (li0) months

heginning on May 1. 2004.

7. The checks provided for in paragraph 6 of this decrt:e shall be mack

payable to Christine Romero and her attorneys Kennedy & Oliver, P.C., and shall be mailed

directly via first class mail to Ms. Romcm c/o Kcnncdy & Oliver,P.C.. I000 Second Street

f\:.W .. Albuquerque, New Mexico 87102.

8. Defendants" obligation for the periodic payments set forth in paragraph 6(8) shall

be secured by a mortgage lien on real property to be identified by the Defendants. The mortgage

will be in a usual and customary fom1 for such JlLII]lOses. It will provide that the amount of the

mortgage lien shall he reduced as the Delcndants make the periodic payments. Once the final

payment is made, the mortgage shall be deemed released, and Romero will execute all

appropriate documents necessary to release the mortgage or any cloud on title to the real

property deriving from the mortgage. Defendants shall identify the property via a letter from

counsel to Kennedy & Oliver within ten ( 10) days of the entry of this decree.

9.

The Defendants shall institute and carry out polices aimed at fostering a wo' rk

environment free from sex discrimination, incluJing sexual harassment of its employees, and that allow employees to raise conccms ,,, complaints without retaliation about matters mad~

unlawful by Title VII, whether alleged, perceived or actual. D~fendants shall distribute copies of

their sexual harassment policies to each of their eutTent full and.part-timc employees. and to

each new employee hired for the duration of this decree.

10. The Defendants slwll provide training on sex disc.riminmion and lwrassmelll

according to the following terms:

I\. The Defendants shall retain and pay fora consultant/lecturer who shall

Cons<IIL Deere<·: Christin< Romero

-3-

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 8 of 15

provide consultation and training for one seminar-training session each year this decree is in

effect for a total of two (2) years. All corporate officers, direc.tors, managers, supervisors and

employees of the Defendants shall attend the first seminar-iraining session. For the second year

session, those employees who work more than lilly (50) miles from the site of the training

session may. in lieu of allendanc.e in person, view a videotape in the same fashion as new

employees as set forth in Paragraph f. Duplicative sessions may be held to accommodate

staffing needs. The Defendants shall be> responsible for any additional costs to provide such

duplicative sessions.

B. The first s..:minar-training scssioil sh;tll be conducted within three months

.. of the entry of this decree.
C. The consultant/lecturer shall be a person(s) acceptable to the Commi~sion.

The Defendants shall submit the name(s)oaddress(es), telephone numher(s) and

rcsume(s) of the proposed consultantllccturer(s) together with the dates of the proposed

seminar-training sessions and the details of the contents oftlie training to the Regional

Allorney of the Albuquerque District Office oft he Equal Employment Opportunity

Commission within thirty (30) days of the entry of this decree. The Commission shall have thirty (30) da~s from the date of receipt of the information described above to

accept or reject the proposed consultant/lecturer and/or the contents of the training. In

the event the Commission does not approve the designated consultant/lecturer, the Commission shall designate the consullantilcctur~r which shall be paid by the Dcfendams

at a cost not to exceedS I,500 per seminar-training session.

D. The seminar-training sessions shall be no less than two hours of

instruction. All personnel. designated in paragraph A shall both register for and allend

Consent Decree; Christine Romero

-.J-

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 9 of 15

the seminar-training sessions. The registry of auendance sh;all be retained hy the

Defendants for the duration of the decree.

E. The !mining shall include the subject of what constitutes sex

discrimination, including sexual harassment, harassment based on gender and retaliation;.

that sex discrimim1tion in the hiring, firing•.compcnsation, assignment or other terms.

conditions or privileges of emplo)11lcnl and retaliation \'iolatcs Title VII: how to prcl'cnt

sex discrimination and retaliation, how to provide a work environment free trom sex

discrimination, sexual harassment and retaliation, and to whom and by what means

employees may complain if they feel they have been subject to sex discrimination, sexual

harassment and rct;~liation in the workplace.

F. New employees shall auend any seminarctraining sessions required by this

decree; employees hired after the seminar-training sessions arc presented shall. within ten

t I0) days of their hire. view a video tape of the training and/or a professional training

tape which covers the topics set forth in paragraph E and shall be given any written

material disseminated at the seminar-training sessions for the duration of this decree.

G. During the first six (6) months of this agreement, all individuals designated by the Defendants to receive, investigate or take any action in response tc•

complaints of sexual harassment and retalimiori, shall attend Commission-approved

training on the processing of sexual harassment complaints. i1icluding, but not limitcd to,.

proper investigation of complaints. lnfonnation concerning the proposed training under··

this paragraph shall be submitted to the Regional Attorney, 505 \1arquette. NW, Suite

900, Albuquerque. New :v!cxico, within thirty (30) days of the entry of this Consent

Decree. The infommtion will include the name, address and qualifications and

Cons•nl Decree; Chrisrinc Rom•ro

-5-

- - - - - - - · .. ·-----------·····-- ·-
Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 10 of 15

experience of the proposed trainer, an outline oftl\e proposed training and the d:ttcs.

times and loc;~tion of the proposed training. Defendants sh;~ll be responsible f(lr Jnoying

for such training sessions at a cost not to exceed $1 ,500.00.

11. The Commission, at its discretion. may designat~ Commission representatives to

attend and participate in the seminar-training sessions described ahove, and the representative

shall have the right to attend and fully participate in tlu: sessions. The Commission will provide

5-day notice to Dctcndants' counsel of its intent to participate or attend the seminar-training

session described above.

12. Each Defendant shall post within 30 days of the entry orthis Consent Decree lor

the duration of this decree in a prominent place frequ~ntcd by its employees, a copy of the

Notice applicable to each Detcnd:mt attached to this dccrce·<ls Exhibit A. This Notice shall be

the same type, style and size as in Exhibit A.

13. The Defendants shall report in writing .to the Region;~! Attorney of the

Commission's Albuquerque Area Olnce at 505 :vlarquctte, NW. Suite 900, Albuquerque, 1\cw Mexico 87102, beginl1ing six ('6) months from the d:ttc ofti1c ~nt·ry of this decree and thcrea!lcr

evcry six (6) months for the duration of the decree the following infonnation:
·-: ... '. A. Any changes, modi tications, revocations or revisions to its policies ;~nd

procedures that concem or affect the subject of sex discrimination.

B. Any c.hangcs, modifications, revocations or revisions to its policies and

procedures thai' concern or affect the subjcct.ofrctuliution. C. The registries of persons attending each of th~ seminar-training sessions·

required in paragraph I0 of this decree and ".list of current employees on the day of the

seminar-training session, along with a statement thai the.!raining scssio11s described in

Consc:nl Dt~ree; Christin{' Romero

-fi-

- - . -------~-------
Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 11 of 15

paragraph 7 of this. decree were completed.

14. This decree shall expire by its own tenns at the end of two (2) years after entry.

without further action by the parties.

15. The parties agree to entry of this decree, subject to final approval by the Court.

16. The Defendant shall expunge from the personnel Iiles of Christine Romero all

references to the charge of the discrimination tiled against the De!i;ndant. In response to any

employment inquiries or reference check concerning Christine Romero, the Dcfendarits will only

provitle the dates ofMs. Romero's employment, position held. job duties and salary.

17. Upon entry of this Consent Decree. this case, as it relates to the claims by

Plaintiff and Phrintiffin Intervention. shall be dismissed wit[l prejudice, with the Court retaining

jurisdiction for the purposes ofcnforc.ement of the terms of this Consetit Decree. Each party will

bear its own attorney's fees and costs.

IT IS THEREFORE, ORDERED. ADJt.:DGED A:'>JD D,ECREED as fullows:

I. The settlement, including the tcnm of this Consent Decree. is herchy approved.

2. . Each party shall bear its own attomey's fees and costs.

3.

All claims asserted by the Plaintiff EEOC and Plaintifl~in-lntervention Christine

Romero against the Defendants arc hereby disn.tissed with prejudice, with the Court retaining
.jurisdiction for the purposes of enforccmcnt.ofthis Consent

liON. wn:_LIAM P. JOH United St<ttes District Judge

CllllSl'lll Dc-t:ree; Christine Romero

-7-

.. ~. ·~

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 12 of 15
....
APPROV~:o AND CONSENTED TO:
VERONICA A. MOl.!I'A. Esq. Trial Attorney I.<Jrttta Medina S~nior Trial Attorney Equal Employment Opportunity Commission 505 Marquette, NW. Suite 900 Albuquc:rque, NM 87102 Auon/C~~:.·P•r Plaimifl
KENNEDY & OLIVER, l'.C.
Telephonically appro\"cd on 04/05/04 hy Shannon L. Oliver SHANNON L OLIVER. Esq. JOSEPH 1'. KENNEDY, Esq. 1000 2nd Street, NW Albuquerque, NM 87102 Auomeysfor PlaintiO"in lllle11'CIItiml
HERRERA. LONG. POUND & KOMER. P.A.
Telephonic:ally approved on 04/02/04 by Mark E. Komer MARK E. KO:\IIER. Esq. NANCY R. LOI\G. Esq. P. 0. Box 509S
· Santa Fe:. N:'v1 87502-5098
.·1flonu.:n· .f(n· Dejl.·mi..Jil '·' ·. Bdl Gas. Cont·z G,l.\' l'1ml A.\' Proplme. Inc.
. Telephonically approved 04/02/04 by Rav Hidalgo RAY HILDAGO, Pro Sc P.O. Box 542 Socorro, NM 87801

CtulScnl Dtcret": Christine: Romero

-S-

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 13 of 15

' •...'.

.... . "·.-:

. .. ~ .. '

·.NOTICE TO ALL EMPLOYEES

OF AX,.. PROPANE. INC.

. '

··- '•• .• J ' ,· •'

It is unlawful und<!r federal law (Title VII of.the'Civil Rights Act) and state
law (New Mexico Human Rights Act) to disc~inii1iute against an employee on the basis ·of.sex in -hiring. firing, compctisatlori or ~tl;er tenns. and conditions or privileges,of ernployment, includi~g·sexual i"lara.ssmcnt.

Jt is also unlawtltl- imdcr fcdc•rallaw (Title Vll of'the Civil Rights Act) and
state hiw (1\L!w Mexico Human Rights Act) to retaliate against an employee or
former employee for 0) opposing discriminatory practices made unlawful by
. fedcnil law; (2) 'fiJirig a charg..: or assistii1g'or participating in the filing of a
,or • charge ofdiscriinination; or (3) assisting participating in an investigation or
proeeedingbrm;g-llt under Title VII. . · ·

-•

J •

A-X Propane Inc: Incorporated will not discriiniriatc on the basis ofsex and will
a not reiilliate. agains't any employee who opposes practice made unlawful under

federal law,lil<!s, assists or participates in the filii1g of<i charge ofdiscrimination

· or pnrticipates in any investigation under Tiile VIi, or who tiles a grievance

_. alleging discrimination.

I

'

..

; If you believe you have been discrimina~ed agahist or retaliated agaihst, ):~u have the right to seek-assistance from and file a charge
of discrimination with the:

. I) li:S. _Equal Emplo~·mcnt Oppo_rttmity Commission (EEOC),

505 Marquette. Suite 900, Albuquerque·, New Mexico 87102,

..
•

·· (505} 248=520 I or 1-800-669-4000: .or .

_.

·'

The New Mexico l>cpartmcntofLahor, Human Rights Division

, ·(:"JMHRD),' 1596 Pacheco St., Sitile 10.3.'Santa fe, New Mexico

87505, (505) 827-6838.

.

.

.

•

-

::~-
. '

.. ;-.

EXHIBIT A

,., ... .

··.·., ·.• ·, .
,

'·

.. '

. .· . ., ~:-.,:·. -;•

.·•.

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 14 of 15
..

NOTICE TO ALL EMPLOYEES OF RELLGAS. INC.

It is unlawful under federal law (Title VII of the Civil Rights Act) and state law (New Mexico Human Rights Act) to discriminate against an employee on the basis of sex in hiring, tiring, compensation o~ other terms, and conditions or privileges of employment, including sexu;tl h<irassment.

It is also unlawful under federal law (Title VII of the Civil Rights Act) and

state law (New Mexico Human Rights Act) to retaliate against an employee or

fonner employee for (I) opposing discriminatory practices made unlawful by

federal law; (2) filing a charge or assisting or participating in the filing nf a

charge of discrimination; or (3) assisting or pal1icipating in an investigation or

proceeding brought under Title VII.

·

Bell Gas Incorporated will not discriminate on the basis of sex and will not retaliate against any employee who opposes a practice made unlawful under
federal law, files, assists or participates in the tiling ofa charge ofdiscrimi1_1ation
or participates in any investigation under Title VII, or who files a gricvanc..: alleging discrimination.

If you believe you have been discriminated against or retaliated against, you have the right to seck assistance from and tile a charge of discrimination with the:

I) U.S. Equal Employment Opportunity Commission (EEOC), 505 Marquette, Suite 900, Albuquerque, New Mexico 87102. (505) 248-520 I or 1-800-669-4000; · or

(2) The New Mexico Department of Labor, Human Rights Division (NMHRD), 1596 Pacheco St., Suite l 03, Santa Fe. New Mexico
87505, (505) 827-6838.

EXHIBIT A

Case 1:02-cv-01213-BB-LAM Document 51 Filed 09/22/04 Page 15 of 15

, -~ ''· ';

- . ·.

NOTICE TO ALL EMPLOYEES

. OF CORTEZ GAS COMPANY

.. .

.. ·--~

It is unlawful under ti:dcmllaw (Title Vll ofthe.Civil Rights Act) and state

law (1\:ew Mexico Hunwn Rights Acl) to discririiinatc against an employee on

the basis ofs.ex i_n-hiring. tiring, compensatioit or othct'"terms, and conditions

· or pri\·ilcges of cmployt~lent. including sexual harassment.

'.

·• ·' ..

. It is ulso· unla\vful under federal Ia,,; {Title VIL~( the Civil Rights Act) and

state law (New Mexico Human Rights Act) to retaliate against an employee or

. former employee for (I) opposing discriininatory practices made unlawful by

fcdcrallaw;'(2) filing a charge or assisting br partiCipating in the tiling of a

. charge ·ofdiscrimirintion; or (3) assisting or.lxirticipating in an investigation or

. proceeding brought under Title VII: ..

Corte:! Gas·Company Incorporated will not discriminate on the basis orse.\ and

· will not retaliat~.against any employee \vh6 ii]'ipos.:!s a practice nwdc unlawful

under tederul Ia.\\;, tiles, assists or participates in·. the tiling of a charge of discriminaiion or participates in any inves~igmion ~itder Title VII. or who lih:s

.:. a grievance alleging discrimination.

. ·.··

!

.

• ~ I .l"~'

'

If you believe you have been discrin,_Iinated against or retaliated

against, you hne the l'ight to seek assista·nce from and file a charge

. of discrimination with the:

· ··

I) U.S. Equal EmploymcntOpportuliiW Commission (EEOC),
.·so;; Miu·quette, Suite 900, Albuquerque, New Mexico 87102.
(505.) 248-5201 or 1-800-669"4000: or.
·. '

. (2) _The i\ew :\1exico DepartmentofLah.or,.J-Iuman Rights Division

'

(NMHRD). I596 Pacheco St., Suite 103, Santa Fe, New Mexico

87505, (505) 827-6838.

O,

. . ~ .• .
EXIIIJHT A

. .

:.- ..

;

" .

... . . ~ '

; .··

I .·

 
 .-' ,- i.

·{

Case 1:02i-cv-i01212-BB-LAM Document 141 Filed 09/22/04 Page 1 of 15

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

04SEP22 AHI1:43

Plaintiff,

vs.

No. CV-02-1212 BB/LAM

BELL GAS INC., CORTEZ GAS COMPANY, and ABC PROPANE, INC., d/b/a AWC PROPANE,

Defendants.

CONSENT DECREE

This matter came before the Court upon the agreement of all parties to enter into a consent decree for the purposes of settling all claims asserted against the defendants in this lawsuit. The Court finds that the parties have agreed as follows:
I. The United States Equal Employment Opportunity Commission (the "Commission" or "EEOC") filed this action against Bell Gas. Inc.. Cortez Gas Company, and ABC Propane, Inc., d/b/a AWC Propane ("AWC" or "Defendants"), to enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. *2000e et seq. ('Title VII"). In the Complaint the Commission alleged that Evelyn Silva was retaliated against by the Defendants for opposing unlawful employment practices and/or because she made a charge and participated in proceedings protected by Title VII. The Complaint also alleged that Defendants failed to make and preserve employment records as required by Section 709(c) of Title VII.
2. The Defendants denied all allegations of the Plaintiff and affirmatively stated that Ms. Silva was not subjected to retaliation and that the Defendants did not fail to make and

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 2 of 15
preserve Ms. Silva's employment records. Defendants Bell Gas, Inc. and Cortez Gas. Inc. also asserted that they were not Ms. Romero's employer and were improper defendants.
3. Defendants acknowledge that Title VII prohibits employers from unlawfully discriminating against an employee on the basis of race, color. religion, sex or national origin or retaliating against an employee who: (a) opposes practices made unlawful by Title VII or a state equal employment statute, (b) makes a charge of discrimination or assists or participates in an investigation or proceeding under Title VII or a state equal employment statute. or (c) files an internal complaint of discrimination.
4. The parties do not object 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.
5. This Decree resolves all claims of the Commission against the Defendants, including compensatory and back pay damages sought on behalf of Ms. Silva. injunctive rclicC attorney's fees and costs arising out of the issues in this lawsuit.
6. In accordance with this Decree, Evelyn Silva shall receive Thirty-Six Thousand Dollars ($36,000.00) to be paid by the Defendants as follows: One Thousand Five Hundred Dollars ($1.500.00) per month for twenty-four (24) months beginning on October I. 2004.
7. The checks provided for in para&>Taph 6 ofthis decree shall be made payable to Evelyn Silva and shall be mailed to the address provided by EEOC.
8. Within ten (I 0) days of issuance of the checks required by paragraph 6 above. Defendant shall submit a copy of the checks and related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, Albuquerque District Office, 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102,2189.
Consell/ Decree (C/V-02-1:! 12 BBILAMI

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 3 of 15
9. If defendants fail to make a monthly payment under paragraph 6 within 15 days of its due date, then defendants shall pay a late fcc of Seventy-Five Dollars (575.00) in addition to the monthly payment. The accrual oflate fees shall not be a bar to the Commission seeking Court enforcement of the Decree.
I0. Defendant, Bell Gas, Inc., is already the subject of a Consent Decree entered in the matter of Equal Employment Opportwzi~1· Commission, Plaintiff. Christine Romero. 1'/aint(O: in-Intervention v. Bell Gas, Inc.. eta/. Defendams. CIV-02-1090 WP.J/ACT, filed in the United States District Court for the District of New Mexico on April 6, 2004. A copy of that Consent Decree is attached hereto as Exhibit A. II is understood and agreed that as consideration for the settlement herein, Bell Gas, Inc. is obligated to undertake the policies and training provided in paragraphs 9 through 14 of the Consent Decree attached as Exhibit A. In addition, Defendants Cortez Gas Company and ABC Propane, Inc., d/b/a AWC Propane, shall also participate in the policies and training set forth in paragraphs 9 through 14 of the Consent Decree attached hereto as Exhibit A.
II. The parties agree to entry of this decree, subject to final approval by the Court. 12. In response to any employment inquiries or reference checks concerning Ms. Silva, defendants shall only provide only Ms. Silva's dates of employment, position held, job duties and salary. 13. Upon entry of this Consent Decree, this case, as it relates to the claims by Plaintiff, shall be dismissed with prejudice, with the Court retaining jurisdiction for the purposes of enforcement ofthe terms of this Consent Decree. Each party will bear its own atlomcy's fees and costs.
Conse111 Decree (C/V-02-1212 BBILAM)

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 4 of 15
IT IS THEREFORE ORDERED, ADJUSTED AND DECREED as follows: A. The settlement, including the terms of this Consent Decree, is hereby approved. B. Each party shall bear its own attorney's fees and costs. C. All claims asserted by the Plaintiff against the Defendants arc hereby dismissed with prejudice, with the Court retaining jurisdiction for the purposes of enforcement of this Consent Decree during its two (2) year term.

United States Distn

APPROVED AND CONSENTED TO:

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Allomeysfor Plaintiff
(~7J/Qa~Q /

VERONICA A. MOLINA, Esq.

'-'-><---

Trial Attorney Loretta Medina Senior Trial Attorney 505 Marquette NW, Suite 900 Albuquerque, NM 87102

LONG, POUND & KOMER, P.A. Allorneys for Defendants

MARK E. KOMER NANCY R. LONG . 2200 Brothers Road P. 0. Box 5098 Santa Fe, NM 87502-5098

Consent Decree (C/V-02-1:! 12 BBILAM)
·..

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 5 of 15

-· .

LIED IN THE li:"ITED STATES DISTRICT COUR'jr~E

FOR THE DISTRICT OF NI':W Mf:~1\_iJS~ATES DISTRICT COURT

.

Oli ... ROUE. NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY .

.

COMMISSION

APR 6 Z00 4

Plaintiff, CHRISTINE ROI\·IERO.
.PlaintiiT in Intervention

.. .....

;·,

·ClERK

'·
.... ~-...

\'.

CIV-02-1090 WPJ/ACT(ACE)

BELL GAS, INC.; ct al

Defendants.

CONSE:"T llECREE

This matter came before !he Court upon the agreement of all parties to cuter inw ;1

consent decree for the purposes of settling all claims asserted against the defcmlants in this·

lawsuit. The Court finds that the (JU11ics have agreed as to !lows:

J. The United States Equal Employment Opportunity Commission (the "Commission" or ·'EEOC") filed this action against Bell Gas Incorporated. A-X Propane. Inc ..

Cortez Gas Coinpany, Black Gold Energy Corporation. d/b/a A-X Express Mart and Conoco 11155, oiSocorro, New .\1exico t"Defcnlfant"J, !o.cnfc>rcc Tille VII olthe Civil Ri~hts Act or

1964, as amemled, 42 U.S.C. §2000c cl seq. ("Title Vll"). In the Complaint the Commission

ulleg~d that the Defendants subjected Christine Ro1itero to verbal and physical sexual

harassment by her immediate supervisor, Ray.I-iidalgo, which c.rcated a hostile work

'

.

~nviTllnmcnt. The Commission also ulh:ged in the Cmpplaintthat Christine Romero wus

retali<tted against hy the Defendants for complaining about the sexual harassment and. as a

result, Christine Romero was either discharged. or constructively discharged by the Defendants in

Exhibit A

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 6 of 15

violation of Title VII.

2. The Defendants denied all allegations of the Plaintiff mid Plaintiff-in-lnten·ention

and atlirmativel)• stated that Ms. Romero was not subjected to a hostile work .:nvironmcnt and

that the Defendants exercised reasonable care to prevent and properly correct any alleged sexual

harassment. Defendants Bell Gas, Inc .. Cortez Gas Company and Black Gold Energy

Corporation also asserted that they were not Ms. Romero's employer and were improper

defendants. The Dcfendams also denied that Ms. Romero was retaliated against for engaging in

protected conduct. 3. Defendants acknowledge that Title Vll prohibits employers from unlawfully

discriminating against an employee on the basis of race, color, religion, sex or national origin or

retaliating against an employee who: (a) opposes practices made unlawful by Title VII or a state

equal employment statute, (b) makes •• charge of discriminatioii or assists or p<u1icipatcs in an

investigation or proceeding under Title VII or a state equal employment statute. or (c) Jiles an

internal complaint of discrimination.

4. The parties do not object to the jurisdiction of the Court over this action and

waive their rights to a hearing and the entry ofFindings of Fact and Conclusions of Law. 5. This Decree resolves oil claims of the Con1mission against the

Defendants, including compensatory and back pay damages sought on behalf of Ms. Romero.

injunctive relief, auomey's fees and costs arising out of the issues in this lawsuit.

6.

In accordance with this Dccr~e and wiih hcr~igncd Release and Indemnifying

Agreement. Christine Rom~ro shall receive the following paynfents from the defendants:

A. Sixty thousand dollars ($60,000.00) to bc_]Jaid within ten days of the e1itry

of this Decree.

Cunsl!'nt Df!'crec; Christine Romero

'

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 7 of 15

B. Two thousand dollars (S2,000.00) per month for sixty (iiO) months

beginning· on May 1. 2004.

7. The checks provided for in paragraph 6 of this decree shall be made

payable to Christine Romero and her attorneys Kennedy & Oliver. P.C.. and shall he mailed directly via first class mail to Ms. Romero c/o Kennedy & Oliver, P.C.. I()()() Second Street

KW .. Albuquerque, New Mexico 8710:!.

8. Defendants' obligation for the periodic payments set forth in paragraph 6(8) shall

be secured by a mortgage lien on real property to be identified by the Defendants. The mongagc

will be in a usual and customary fom1 lor such purvoscs. It will provide that the amount of the

mortgage lien shall he reduced as the Defendants make the periodic p;ryments. Once' the final

payment is made, the mortgage shall be deemed released, and Romero will execute all appropriate documents necessary to release the ni'origage cir an~· cloud on title to the' rC"al

property deriving from the mortgage. Defendants shall identify the property via a letter from
"'
counsel to Kennedy & Oliver within ten (I 0) days of the entry of this decree.

9. The Defendants shall institute and c:irry out polices aimed at fostering" work

environment free from sex discrimination. including sexual harassment of its employees, and that allow employees to raise concems or complaints without retaliation about matters made
or urrlawlirl by Title VII, whether alleged. perceived actual. Defendants shall distribute copies of

their sexual harassment policies to each of their cuiTent full and part-time employees. and to

each new employee hired for the duration of this decree.

10. The Defendants shall pro\'ide training.on sex discrimination and lwrassment

according to the following lenns:

A. The Defendants shall retain and pay for· a consultant/lecturer who shall

ConS('lll Decrcc: Christin(' Romero

-3-

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 8 of 15

provide consultation and training for one semin;lr-training session each year this decree is in

. ctTect for a t61lil of two (2) years. All corporate"ol1iccrs, direc!ors, managers, supcn·isors anJ

.

.

-· employees of the Defendants shall attend tlie first seminar-training session. For the second year .

session, those employees who work more than filly (50) miles from the site of the training

session m:iy, in.lie!J,ofanenJance in person, view a videotape_ in the s;unc fashion as new

employees as set forth in Paragmph F. Duplicati\'C sessions may be held to accommodate

st;iffingl1eeds: The Defendants shall be" responsible for any" additional costs to provide such
!·.
duplicative sessions,

R .The first s.:minar-trainingscssioil sii;ii'l b.c conducted within three months

'. of the entry of this decree. ";" · : C: The consultant/lecturer shall be a person(s) acceptable to the Commi,;si<>n.
.The D~fend~nts sl~alls.ubmit the name(s),-address(es). telep_honc munher(s) and

rcsume(s) of the proposed consultant/leeturer(s) together \vith the dates ofthe proposed

seminar-training-~e;sions and the details or"the contents ofthe training to the Regional

.·

.

Attorney ofthe' Albuquerque District Office ofthe Equal Employment Opportunity

Commission witliiri thiny (30) days of the entry of this decree. The Commission sh<lil

.

~-.

.

have thirty (30) da~s from the date of receipt ofihe infonnation described above to

accept or reJeci the proposed consultant/l~ctur~r and(or th~ contents of the training. In

the event the Cothmissiiin does not approvc.tlic designated cot1sultant/lccturer, the

'"

Commissio~shall designate the consultantilc~tm·e~.whi,cil sh~ll he paid by the Dcfembnts

at a costn~l to exceed S I,SOO per seminar-trai11·i-ng scssioti..
:,. ·o: •. ~The seminar-training sessions' ~liallb~: no less ;han two h.ours of

instruction: .

All personneL

. .

.

designated .in.pa.rag·r·a.. ·ph

A .

shall-both .

register

for

and

attend

Consenl Decree; Chri~ti~1c R!lmero

. i

;·
-. . .

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 9 of 15

the seminar-training sessions. The registry of attendance shall be n.:tained hy the

Defendants for the duration of the decree.

E.

The tmining shall include the subj..ec-t of what constitutes sex

discrimination, including sexual harassment, harassment based on gender and retaliation;

that sex discrimination in the hiring, firing, compensation. assignment or other terms.
:·-.
conditions or privileges of employment and retaliation violates Title VII: lww to prc'"ent

sex discrimination and retaliation, how to provide a work _environment free ti"t>m sex discrimination, sexuallmrassmcnt and retaliation, and to whom and by what means employees may complain if they feel they have been subject to s~x discrimination, sexual harassment and rc.t~liation in the workplace.
F. New employees shall allend any seminar-training sessions required by this decree; employees hired after the seminar-training sessions arc_ presented shall. within te:1

( I0) days of th.:ir hire. view a video tape of the training _and/or a professional training

tape which covers the topics set forth in paragraph E and shall be given any wrillcn

material disseminated at the seminar-training sessions for the duration of this decree.
G. During the first six (G) months of this agreement, all individuals
designated by the Dclcndants to receive, investigate or take any action in response to
complaints of sexual harassment ~nd retaliation, shall attend Commission-approved .. ,•.
training on the processing of sexual harassment complai.rlts. i1icluding, but not limited to.

proper investigation of complaints. lnfonnation concerning the proposed training under this paragraph shall be submillcd to the Regional Attome)'. 505 ~arqucllc. NW. Suite
of 900, Albuquerque. New \-1cxico, within thirty (30) days-_ the entry of this Consent

Dcc.rcc. The infom1ation will include the name, address and quali_fications and

Cons~:nl DC't~e; Christine Rom~ro

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 10 of 15

experience of the proposed trainer. an outline of the proposed training and the dates. times and loc:~tion of the proposed training. Defcndants.sh:~ll be responsible l(lr p:~ying

for su,h training sessions at a cost not to exceed $1,500.00. II. The Commission, lit its discretion. m:~y designate Commission representatives to

altend and participate in the seminar-training sessions described above, and the representative

shall have the right to attend and fully panicipatc in the sessions. The Commission will provide

5-day notice to Defendants' counsel of its intent to participate or altend the seminar-training

session described above.

12. Each Defendant shall post within30 days of the ciltry of this Consent Decree lor

the duration of this decree in a prominent place frequented by its employees, a copy of the

Notice applicable to each Dcfcnd;mt attached to this decree as Exhibit A. This Notice slwll be

the same type, style and size as in Exhibit A.

13. The Defendants sh;,ll reporl in writing to the Regional Attomc.>y oft he

Commission's Albuquerque Area Ollice at 505 :'vlarquette, NW. Suite 900, Albu4uerquc. Kcw

Mexico 87102, beginning six {6) months from the date of the entry of this decree and thcrea~icr

every six (6) months for the duration of the decree the following information: A. Any changes, modifications. revocations tir revisions to its policies and

procedures that concem or affec-t the subject of sex discrimination .
. . .;
B. Any changes, modifications, revocations or revisions to its policies and
procedures that concern or affect the subject of rctaliati~n.

C. The registries of persons allending each of tho seminar-training sessions·

required in paragraph 10 of this decree and a listufcurrcill employees on the day of the

'

.-

seminar-training session, along with a statement thai the .training sessions described in

Consc:n1 De"ree; ChristinC' R~1mcrn

-0-

------------~--~--------------~------·-···-------------
Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 11 of 15

paragraph 7 of this-decree were completed.

14. This decree shall expire by its own tenus at the end of two (2) years after entry,

without further action by the parties.

15. The parties agree to entry of this decree, subject to final approval by the Court.

16. ·nte Defendant shall expunge fromtl!e personnel files of Christine Romero ull

references to the charge of the discrimination tiled-againstthe Dcti:ndant. In response to any

employment inquiries or reference check concerning Christine Romero, the Defendants will only

provide the dates of Ms. Romero's employment, position held, job duties and salary.

17. Upon entry of this Consent Decree. this case, as it relates to the claims by

Plaintiff and Pl<tintiffin Intervention. shall be dismissed with prejudice. with the Court retaining

jurisdiction for the purposes of enforcement of the terms of this Consent Decree. Each party will

bear its own attorney's fees and costs.

IT .IS THEREFORE, ORDERED. ADJL:DGED A~D DECREED as follows:

I. The settlement, including the tenus of this Consent Decree. is herchy approved.

2. _Each party shall bear its own attorney's fees and costs.

3.

All claims asserted by the Plaintiff EEOC an~ Pl<tintifl:in-Intervention Chrisrine

Romero against the Defendants arc hereby dismissed with prejudice, with the Court retaining

jurisdiction for the purposes of enforcement of this Consent

HON. WILLIAM P. JOH United St<Lie.s District Judge
'•

C.\msl'nl Dc:crC'e; ChristiltL~ Romero

. /.

·~. ·.: :.

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 12 of 15
....
.vrr::a:::~·o· VERONICA A. MOLINA. Esq. Trial Attorney l.vrctta Medina S··nior Trial Atlomey Equal Employment Opportunity Commission 505 Marquette, NW, Suite 900 Albuquerque, NM 87102 Auonn:1-:v JfJI" Plaintiff
KENNEDY & OLIVER, I'.C.
Telephonically approved on 04/05/04
hy Shannon L. Oliver SHANNON 1.. OLIVER. Esq. JOSEPH P. KENNEDY, Esq. 1000 2nd Strw. NW Albuquerque. NM 87102 .·luorno:p for PlaintiO.in b11e11•cmion
HERRERA, LONG. POUND & KOMER. P.A.
Telephonically approved on 04/02/04 by Mark E. Komer MARK E. KO:'v1ER. Esq.
NANCY R. LOI\G. Esq. P. 0. Box 5098 .· Santa .Fe. N:'v1 87502-5098
..1 flrn'n£:1 :\' .ffn· /J~;ji_·m/,Jnt,\·
. ·. Hdl G:H· C11nc:: G,l.\" (llld A.r Prop,uw. Inc.
. . Telephonically approved 04/02/04 hv Rav Hidalgo RAY HlLDAGO, Pro Sc P.O. Box 542 Socorro, NM 87801

Con.~tcnl DtcrcC': Chrislinc Romero

-8-

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 13 of 15

... '

, ..

. . •' '\, ·: .~

. ~~

,

·'NOTICE TO ALL .E~lPL<)YEES

OF AX,. PROPANE. INC.

. '

• ··- '·• .• J • ,. .·

It is unlawful und.:r federal law (Title VII ofthc'Civil Rights Act) and state

.. law (New Mexico Human Rights Act) to discriniitiatc against an c'mploy.:.: on

the basis·ot'_sex in hiring, firing, compctisatiOri or other temlS, und conditions

or

privile.ges. of ernploymcnt,

includin-g.. ·

sexual .

hat:nssmcnt.

It is also unl:l\vful. under fcdl•ral law (Tit.le· VII ofthe Ci\,il Rights Act) and

statc law (1\ew Mexico Hunum Rights Acr) to retaliate against an employee or

former employee for (I) opposing discriminatory practices made unlawful by

. fedcnil law; (2) 'tilirig a charge or nssisting ·or participating in the filing of a

• charge ofdiscriinination; or (3) assisting pi· participating in an investig<ttion or

proeeeding.brm;g-lnundcr Tille VII.

· ·
. ·.,

• .

I '

A-X Propane Inc: Incorporated will not discriiniriatc on the basis ofsex and wi II

not retaliate agains·t any employe..: who opposes a pr~ctice made unlawful umb

federal law. Iiles, assists or participates in the fi\i i1g of<i charge ofdiscrimination

·.or participates in any investigation under Titfe VII. or who tiles ;1 grievance

· alleging discrimimuion.

I

'

: If you belie,'c· you have been discrimina~ed against or retaliated agaiQst, );~u have the right to seek-assistance from and file a charge
of discrimination with the:

. 1) L":s. Equal Employment Oppo.rtimity Commission (EEOC),

"505 Marquette. Suite 900, Albuquerque·, New Mexico 871 02.·

' ~

.or . ;· ·· (5.051 248=520 I or 1-800-669~4009:

; (2) The New Mexico l>cpartmentofLahor, Human Rights l>ivision

'· · -(~I\1IIRD), 1596 Pacheco St., Si1ite I03."Santa fe, New Mexico

87505, (505) 827-6838.

' ' :· ',- ...

·. ·= - ' •.

, ;..

F:XHIIJIT A

..... , .. ·, .
. .,., , ....

"'

..• .·-....
. •' ~.:~-;·.·

.·•.

Case 1:02-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 14 of 15
..
NOTICE TO ALL EMPLOYEES OF BELLGAS. INC.
It is unlawful under federal law (Title VII Of the Civil Rights Act) and stale
law (New Mexico Human Rights Act) to discriminate against an employee on the basis of sex in hiring, firing, compensation or other tcm1s, and conditions or privileges of employment, including sexual harassment.
It is also unlawful under federal law (Title VII of the Civil Rights Act) and state law (New Mexico Human Rights Act) to retuliute against an employee or former employee for (I) opposing discriminatory practices made unlawful by federal law; (2) filing a charge or assisting or participating in the filing of a charge of discrimination; or (3) assisting or pal1icipating in an inwstigation or proceeding brought under Title VII.
Bell Gas Incorporated will not discriminate on the basis of sex and will not
retaliate against any employee who opposes :1 practice made unlawful under fedemlla\v, files, assists or participates in the filing ofa charge ofdiscrimination or participates in any investigation-under Title VII, or who files a gricvanc..: alleging discrimination.
If you believe you have been discriminated against or retaliated against, you have the right to seek assistance from and file a charge _of discrimination with the:
I) U.S~ Equal Employment Opportunity Commission (EEOC), 505 .Marquette, Suire 900, Albuquerque, New Mexico 87102.
(50S) 248-520 I or l-800-669c4000; or
-·,
(2) The New Mexico Department of Labor, Human Rights Division
(Nl\HIRD), 1596 Pacheco St., Suile 103, Santa Fe, New Mexico 87505, (505) 827-6838.
EXHIBIT A

·....
Case 1:0;, 2-cv-01212-BB-LAM Document 141 Filed 09/22/04 Page 15 of 15

..'. "-: ''· ',. ~

. :.._

·-· -

..

NOTICE TO ALL EMPLOYEES

. OF CORTEZ GAS COI\1PANY '· -· .. :- .

·It is unlim;;ful und.:r li::d.:rallaw (TitleV.lfofthe Civil Rights Act) and state

l:tw (1\:ew Mexico Hlllilan Rights Act) to discriri1inate against an employee on

the basis i:Jfsex i.~- hiring, firing, coni.pci1satioi1 o;: othcl'tcrms, and conditions

. ·.or privileges of C:mploymcnt. including sexual hArassment.

.

.

'.
· It

is

iaiso..unla\vful

ui1dcr

federal

law'( -Title VIi

~t· the

Civil

Rights

Act)

and

stat.: law (New; Mexicolluman Rights tieti to rctal.iah: against an employee or
a , former~:niploycc for (I) opposing discriminatory.pr;tctices·made unlawful by fcdcral·law;:(2) filing charge-or assisting or jlariitipating in the tiling of a

. charge of discrimitiation; or (3) assisting or,Jxirticipating in an investigation or

.. ·proceeding brought under Title VIt·· ..

.

.

Cortez .GtlirCoinpany lncOilJOrated will not discriminate on the basis ofsex and

· will.not t'ctaliat_c.~gainst any cmploycc\vh6./il)poscs apractic.: made unlawful

under tederul Ja\\;_ tiles, assists or participates in.. the tiling of a charl!c of
discrin:{imilioil or participates in any inves.tigation ~nde;. Title VII, or wh; Iiles

:. a grievance alleging discrimination.
. ..·: :
!
If you believe· you have been discrilijiiiated against or retaliated

againsf, you ha\'C the right fo seck assistance from and file a charge

. of disc•'imination with the: · · · ·

I) lJ.S. :Equal Employment Opport'l·'iliit~,· Commission (EEOC), ·SO? Marquetie, Suite 900, Albuq~erq.ue, Ne\v Mexico 87102.

(50S)

248-520 I

or

l

-

8

0

0

-

6

6

9

c

4

0

0 .

0;
. .•

·.....o.....r........

·

-.· .· - ·'

;::·'·
',.·'

. (2) ·The i\ew Mexico DepartmentofLabo_r,·Hinnan Rights Division

'

(NMHRD). 1596 Pacheco St., Suit~: I03; S~nta Fe,. New Mexico

. 87505~ (505)827-6838..

. .~:;:.'":. .:.":. "·· .
. - ·.., .
·-· _.: . -~ .
·.-": '

..

. ~ ..·.•.... '"

'

..... :.· .--~. · EXIIJBIT A

.. .

~- ...

. ·- . ,. ~. '. •. .

-·- - • :

: .v •

.. -.:~ ·.
_,- .. ·

" .

,.
·- ; .

.. '· ...

·' ·-

. . . . ·'· ·' .. -"··...

. I :·

.; ....

 
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R/D, TERMED
U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:02-cv-01213-BB-LAM

EEOC v. Bell Gas Incorporate, et al Assigned to: District Judge Bruce D. Black Referred to: Magistrate Judge Lourdes A. Martinez Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/26/2002 Date Terminated: 09/22/2004 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

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 Fax: 248-5217 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Jo O'Neill EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-2504

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V. Defendant Bell Gas Incorporated

(602) 640-5000 Fax: (602) 640-5009 Email: mary.oneill@eeoc.gov 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
represented by Debra J. Moulton Kennedy, Moulton & Wells PC 2201 San Pedro NE Building 2, Suite 105 Albuquerque, NM 87110 505-884-7887 Fax: 505-884-7123 Email: dmoulton@kmwpc.com TERMINATED: 09/16/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Komer Long, Pound & Komer, P.A. 2200 Brothers Road P. O. Box 5098 Santa Fe, NM 87502-5098 505-982-8405 Fax: 505-982-8513 Email: lpk@nm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Ruth Long Long, Pound & Komer, P.A. 2200 Brothers Road P. O. Box 5098 Santa Fe, NM 87502-5098 505-982-8405

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Defendant Ballew Distributing Inc.

Fax: 505-982-8513 Email: lpk@nm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Debra J. Moulton (See above for address) TERMINATED: 09/16/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark E. Komer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Ruth Long (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/26/2002
09/26/2002 10/11/2002 12/11/2002 12/16/2002
12/16/2002
12/17/2002 12/17/2002

#

Docket Text

1 COMPLAINT for employment discrimination w/jury demand (1 Summons(es) issued) (referred to Magistrate Judge Leslie C. Smith) (ed) (Entered: 09/27/2002)

LETTER re: consent to proceed before a US Magistrate Judge (ed) (Entered: 09/27/2002)

2 NOTICE of consent to proceed before a US Magistrate Judge by plaintiff (ed) (Entered: 10/16/2002)

3 WAIVER OF SUMMONS upon defendant Ballew Distributing on 11/7/02 (sl) (Entered: 12/13/2002)

4 MOTION by plaintiff EEOC for entry of default as to Bell Gas Incorporat, Ballew Distributing (sl) Modified on 01/06/2003 (Entered: 12/17/2002)

5 AFFIDAVIT of Veronica A. Molina in support of motion for entry of default as to Bell Gas Incorporat, Ballew Distributing [4-1] (sl) Modified on 01/06/2003 (Entered: 12/17/2002)

6 PRAECIPE: by plaintiff for clerk's entry of default against defts (only 1 summons issued) (sl) (Entered: 12/20/2002)

8 AMENDED CERTIFICATE of service by plaintiff of motion for default to counsel on 12/17/02 (sl) Modified on 12/23/2002 (Entered: 12/23/2002)

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12/20/2002 12/20/2002 12/23/2002 12/23/2002 12/30/2002
01/03/2003 01/03/2003 01/13/2003 01/16/2003 01/21/2003 01/21/2003 01/22/2003 01/27/2003 01/27/2003 01/28/2003
01/30/2003 02/06/2003 02/13/2003

7 CLERK'S ENTRY OF DEFAULT as to defendant Ballew Distributing (cc: all counsel*) (sl) (Entered: 12/23/2002)
9 ENTRY OF APPEARANCE for Bell Gas Incorporate, Ballew Distributing by Debra J. Moulton (sl) (Entered: 12/23/2002)
10 ANSWER by defendants Bell Gas Incorporate and Ballew Distributing [1-1] (sl) (Entered: 12/26/2002)
11 MOTION by Bell Gas Incorporate, Ballew Distributing to set aside default (sl) (Entered: 12/26/2002)
12 MINUTE ORDER: Case reassigned from Magistrate Judge Karen B. Molzen to Chief Judge James A. Parker (cc: all counsel*) (sl) (Entered: 01/02/2003)
13 RESPONSE by plaintiff to defts' motion to set aside default [11-1] (sl) (Entered: 01/08/2003)
14 APPENDIX filed by Veronica Molina in support of response to motion to set aside clerk's entry of default [13-1] (sl) (Entered: 01/08/2003)
15 MOTION by plaintiff to strike deft's answer filed 12/23/02 (sl) (Entered: 01/14/2003)
SUMMONS issued as to defendant Bell Gas Incorporate (ed) (Entered: 01/17/2003)
16 NOTICE by defendants of completion for defts' opposed motion to set aside Clerk's enty of default (sl) (Entered: 01/22/2003)
18 REPLY by defendant Ballew Distributing to pltf's response to motion to set aside default [11-1] (seal) (Entered: 01/23/2003)
17 MOTION by defendant for order to initiate electronic filing (ed) (Entered: 01/23/2003)
20 RESPONSE by defendant Ballew Distributing to pltf's motion to strike deft's answer filed 12/23/02 [15-1] (sl) (Entered: 01/28/2003)
21 EXHIBITS to their reply in support of motion to set aside Clerk's Entry of Default by defendant (sl) (Entered: 01/28/2003)
19 ORDER by Magistrate Judge Leslie C. Smith granting motion for order to initiate electronic filing [17-1] (cc: all counsel*) (sl) (Entered: 01/28/2003)
22 REPLY by defendants to response to motion to set aside default [11-1] (sl) (Entered: 01/30/2003)
23 ANSWER by defendant Bell Gas Incorporate [1-1] (sl) (Entered: 02/07/2003)
24 REPLY by plaintiff to deft's response to motion to strike deft's answer filed 12/23/02 [15-1] (sl) (Entered: 02/13/2003)

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02/13/2003 02/25/2003
03/05/2003 03/13/2003 04/03/2003 04/03/2003
05/20/2003 05/20/2003 05/27/2003 05/28/2003 05/28/2003 06/02/2003 06/06/2003 06/06/2003 06/16/2003 03/30/2004

25 NOTICE by plaintiff of completion of briefing re motion to strike deft's answer (sl) (Entered: 02/13/2003)
26 NOTICE of hearing before Chief Judge James A. Parker on motion all pending motions [15-1] [11-1] [4-1] at 10:30 am on 3/7/03 in Albuquerque, NM (cc: all counsel*) (sl) Modified on 03/04/2003 (Entered: 02/26/2003)
27 STIPULATED NOTICE by plaintiff withdrawal of motion for default filed 12/6/02 and opposed motion to strike defts' answer filed 1/13/03 (sl) (Entered: 03/06/2003)
28 ORDER by Chief Judge James A. Parker granting defts' motion to set aside default [11-1] [7-1] (cc: all counsel) (sl) (Entered: 03/13/2003)
29 MINUTE ORDER: Case referred from Magistrate Judge Leslie C. Smith to Magistrate Judge Lourdes A. Martinez (cc: all counsel*) (sl) (Entered: 04/03/2003)
30 INITIAL SCHEDULING ORDER by Magistrate Judge Leslie C. Smith Rule 16 scheduling conference set for 6/4/03 at 11:30 am; provisional discovery plan and IPTR due on 5/28/03 (cc: all counsel*) (sl) (Entered: 04/03/2003)
31 OPPOSED MOTION by plaintiff to consolidate cases with CIV 02-1212 (sl) (Entered: 05/20/2003)
32 MEMORANDUM by plaintiff in support of motion to consolidate cases with CIV 02-1212 [31-1] (sl) (Entered: 05/20/2003)
33 CERTIFICATE of service by defendants of initial disclosures to counsel on 5/27/03 * (sl) (Entered: 05/27/2003)
34 CERTIFICATE of service by plaintiff of initial disclosues to counsel on 5/28/03 (sl) (Entered: 05/29/2003)
35 PROVISIONAL DISCOVERY PLAN by parties (sl) (Entered: 05/29/2003)
36 RESPONSE by defendants to pltf's motion to consolidate cases with CIV 02-1212 [31-1]* (sl) (Entered: 06/02/2003)
37 REPLY by plaintiff to deft's response to motion to consolidate cases with CIV 02-1212 [31-1] * (sl) (Entered: 06/06/2003)
38 NOTICE by plaintiff of completion of briefing on motion to consolidate * (sl) (Entered: 06/06/2003)
39 ORDER by District Judge Bruce D. Black granting motion to consolidate cases with CIV 02-1212 [31-1] 1:02-cv-1212 with member cases 1:02cv-1213 (cc: all counsel*) (sl) (Entered: 06/16/2003)
41 MOTION by defendant Bell Gas Inc. to extend time to file reply briefs until 4/15/04 * (sl) Modified on 04/01/2004 (Entered: 03/30/2004)

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04/01/2004 04/14/2004 04/16/2004 04/23/2004 04/30/2004 06/24/2004 07/14/2004
07/14/2004 07/20/2004 09/22/2004

42 ORDER by District Judge Bruce D. Black granting deft's motion to extend time to file reply briefs until 4/15/04 [41-1] (cc: all counsel) (sl) (Entered: 04/01/2004)
43 MOTION by defendants to extend time to file reply briefs until 4/23/04 * (sl) (Entered: 04/15/2004)
44 ORDER by District Judge Bruce D. Black granting defts' motion to extend time to file reply briefs until 4/23/04 [43-1] (cc: all counsel) (sl) (Entered: 04/16/2004)
45 MEMORANDUM by plaintiff in support of consolidation of Civ 021212 and 02-1213* (sl) (Entered: 04/26/2004)
46 NOTICE by defendants of completion of briefing on motion for summary judgment * (sl) (Entered: 04/30/2004)
47 PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Lourdes Martinez (cc: all counsel*) (sl) (Entered: 06/24/2004)
48 ORDER by District Judge Bruce D. Black adopting MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION [47-1] and setting this case on the Court's October 2004 trial calendar (cc: all counsel*) (sl) (Entered: 07/14/2004)
49 NOTICE of hearing before Judge Bruce D. Black Jury selection and trial set for 10/4/04 at 9:00 am in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 07/14/2004)
50 MEMORANDUM, OPINION, AND ORDER: by District Judge Bruce D. Black denying motions for summary judgment doc#'s 80,82,83,84,85 in CIV 02-1212 (cc: all counsel*) (sl) (Entered: 07/20/2004)
51 CONSENT DECREE by District Judge William Johnson re settlement dismissing case with prejudice with each party to bear their own attorney fees and costs (cc: all counsel)(sl) Modified on 09/24/2004 (Entered: 09/22/2004)

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 ;1 , .,,I
.~ :
LEI) cOY~1;'f'l IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF NEW MEXICO" ",~?~~!~_r.ES O'S!.~'CT COUR, • "ev:(,;o

EQUAL EMPLOYMENT OPPORTUNITY

.,

COMMISSION,

Plaintiff,

bAt;~~_~

CLERK

~

vs.

,

ii

il

BELL GAS INC., CORTEZ GAS

:;

COMPANY; AND ABC PROPANE,

--"~--- INC:-;-d/b/a-AWE;-PR0PANE;- -- -- ..

No. CV02-1212 BB/LAM and No. CV02-1213 BB/LAM

Defendants.

CONSEI'IT DECREE PERTAINII\G TO CLAIMANT CHERI BRISCO Ol'\LY

This matter came before the Coun upon the agreement of the parties to cnter into a

consent decree for the purposes of settling the claims of Cheri Brisco against the Defendants as

asserted by the Plaintiff. The Court finds that the panics have agreed as follows:

I. The United States Equal Employment Opportunity Commission (th.:

"Commissio~" or "EEOC") filed this action against Bell Gas Incorporated and Ballew

Distributing of Roswell, New Mexico ("Defendants", "Employers", or "Ballew") to enlixcc Title

---'--- -'- -'------. --" - ___·A,;,·~_ ..

--'-~

VII o[the Civil Rights Act of 1964, as amended, 42 U;S.C..§2000e et seq. ("Title VII''). In the

,f 11

Complaint, the Commission alleged that the Defendants discriminated against Cheri Brisco

II

becauil,e other sex, female. Specifically, the Commission alleged the Defendants sexually

harassed' Ms. Brisco by subjecting her to severe and/or pcr.'asive sexual harassmcnt hy her
Managers, which created a hostile work envi~onment. The Commission further alleged that

Defendants did not excrcise reasonable care to prevent and promptly con'ect the sexual

harassment.

rlVent {J

Decree

-1-

:1

- - - - - - - - - - -_._------

--,
2. The Defendants denied all allegations of the Plaintifrand aflinnatively statcd that

Ms. Brisco was not subjected to a hostile work environment and that the Defendants exercised

reasonable ea~e to prevent and promptly correct any sexual harassment. Defendant Bell Gas also

asserted that it is not Ms. Brisco's employer and is an improper defendant. Ballew Distributing

further asserted that it is not subject to Title VII because it lacked the requisite numher of

employees.

__11__________3_ . ___T_ he_p...a....r. _ tie_s d"o_n_ ot_obj_ec't t_o__th~ e _j_ u_ risdiction of the Court over this action and waive their rights to a hearing and the Entry or Findings of Fact and Conclusions of Law with

respect to Cheri Brisco's claim only.

4. The parties have agreed to settle any claims for injury or damages sustained by

Ms. Brisco in connection with her employment with the Defendants. This includes all claims
j" ,
brought by the EEOC for the benefit of Ms. Brisco in this action as well as claims of any kind

that were or could have been asserted by Ms. Brisco, including but not limited to those claims

asserted in Brisco's EEOC charge No. 390 A 11210.

5. .. The amount of the seltlenlent is Twenty Thousand Dollars ($20,000). Within five

1- '-_ .. 1
11
II
,I
:!

(5) days oCthe entry of the Consent Decree, the Defendants will pay the full scltiemcnt amount - via bltsiness·(=:heck: -The check will'bemadc payable to Cheri Brisco and will be mailed directly
via certilied mail to Ms. Brisco at the address provided by the EEOC. Within five days of issuance of the check, the Defendants will submit a copy of the check and related correspondence to the' Regional. Attorney, Equal Employment Opportunity Commission, Albuquerque District

Office, 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102.

6. . Settlement of Ms. Brisco's claims in this action shall not preclude the

Commission from prosecuting the remaining claims in this action against the Derendants.

COllselil Decree

-~-

.. )

:- .'0.--.. : :..-.~-

7. . .Settlement of Ms. Brisco's claims in this action shall not preclude Ms. Brisco

from testifying or otherwise participating in the Commission's prosecution of this action with

..,'

"il

respect to Evelyn Silva's claims against the Defendants.

!t

8. The Defendants will expunge from the pcrsonncllilc of Cheri Brisco all

references to the charge of discrimination lile against Defendants.

9. In response to any employment inquiries or reference check conceming Cheri

---',_ _ _ .-!I.!iscq,.Q1~.!?~.~!.l~S will provide only the dates of Ms. Brisco's employment, position held.

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job duties and salary.

10. Upon entry of this Consent Decree. this case, as it relates to Ms. Brisco's claims,

shall be dislili~sed with prejudice. Further, Ms. Brisco releases and discharges Defendants with
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respect to ariy claims for damages of any kind related to her alleged emplo)~l1ent with

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Defendants. Each party will bear its o\\'n attomeys fees and costs.

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It is therefore, ORDERED, ADJUDGED AND DECREED as follows:

A. The settlement between the parties, including Cheri Brisco, is hereby approved.

B. Each party shall bear its own attorneys fees and costs.

C. All clain,"s"by Plaintiff EEOC on behalf of Cheri Brisco arc hereby dismissed wilh

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·prejuoice."" ,,",'

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ENTERED AND .ORDERED this _ _ _ day of ________~~')003.

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Consem Deerel!

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APPROVED.'ANi> CONSENTED TO:

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HERRERA, LONG, POUND & KOMER, P.A.

A/;~rtley.~ for DJfendan~s

EQUAL EMPLOYME:\T OPPORTI):\ITY COMM.
AI/orneysfor Plain/iff

i,

MARK E. KOMER

h .

2200 Brothers Road

t <-.. P: O. Box S098 :.

Santa Fe, NM 87S02-S098

'"'ti=-jP_---(so~)-98208:l0S---..:..~~.

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MARY JO O'NEILL Regional AI/orney
o C. EMANUEL SMITH Superl'isory TriaIAI/O/"lu:\·
3300 N Central Avenue, Suite 690 Phoenix, AZ 85012
VERONICA MOLINA Trial AI/orney Alhuquerquc District Oniec 505 Marquette NW, Suite 900 Albuquerque, NM S71 02 505-248-5231

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Consent Decree

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