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Case 2:05-cv-01978-FCD-PAN Document 1-1 Filed 09/29/2005 Page 1 of 4

1

WILLIAM R. TAMAYO - #084965 (CA)

JONATHAN T. PECK- #12303 (VA)

2

MARCIA L. MITCHELL- #18122 (WA)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

3

San Francisco District Office

350 The Embarcadero, Suite 500

4

San Francisco, CA 94105

Telephone No. (415) 625-565 1

5 Fax No. (415) 625-5657

6
Attorneys for Plaintiff 7
UNITED STATES DISTRICT COURT 8
EASTERN DISTRICT OF CALIFORNIA 9

10

l EQUAL EMPLOYMENT OPPORTUNITY

II COMMISSION,

l CIVIL ACTION NO.

12
Plaintiff, 13
v. 14

)

)

) COMPLAINT

) Civil Rights

)

- Employment Discrimination

)

15 16

CARL KARCHER ENTERPRISES, dba CARL'S JR. RESTAURANT
Defendant.

) ) ) )

JURY TRIAL DEMAND

17

18

19

NATURE OF THE ACTION

20

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

21 Rights Act of 1991 to correct unlawful employment practices on the basis of race and to

22 provide appropriate relief to Michal Galloway (nee Harris) and other similarly siruated

23 African-American and non-White employees who were adversely affected by such practices. 24 As alleged below, defendant, Carl Karcher Enterprises, Inc. ("CKE, Inc") subjected Ms. 25 Galloway and other simi larl y situated employees to a racially hostile work environment 26 because of their race, non-White. In addition, CKE retaliated against Ms. Galloway by 27 discharging her from her employment because she complained about the harassment. 28

COMPLAINT

Case 2:05-cv-01978-FCD-PAN Document 1-1 Filed 09/29/2005 Page 2 of 4

I

JURISDICTION AND VENUE

2

l. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§45 1, 133 1, 1337,

3

1343, and 1345. This action is authorized and instituted pursuant to sections 706(t)(1) of Title

4

VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U .S.C. §§2000e-5(t)(l), and

5 Section 102 of the Civil Rights Act of 1991,42 U.S.C. § l 98la.

6

2. The employment practices alleged to be unlawful were and are now being

7

committed within Sacramento County which is within the jurisdiction of the United States

8 District Court for the Eastern District ofCalifornia.

9

INTRADISTRICT ASSIGNMENT

10

3. This case is appropriate for assignment to Sacramento because the unlawful

I I employment practices alleged were and are being committed within Sacramento County.

12

PARTIES

13

4. Plaintiff, the Equal Employment Opportunity Commission ("EEOC"), is the

14 agency of the United States of America charged w ith the administration, interpretation, and

15 enforcement of Title VII and is expressly authorized to bring this action by sections 706(t)(l)

16 and (3) ofTitle VII, 42 U.S.C. §§2000e-5(t)(l) and (3).

17

5. At all relevant times, Defendant, Carl Karcher Enterprises, Inc. dba Carl's Jr.

18 Restaurants ("CKE" or "Defendant Employer"), has continuously been doing business in the

19 State of California and the City ofSacramento and has continuously had at least fifteen

20 employees.

21

6. At all relevant times, Defendant Employer has continuously been an employer

22 engaged in an industry affecting commerce within the meaning of section 701(b), (g), and (h)

23 of Title VII, 42 U.S.C. §2000e-(b), (g), and (h).

24

STATEMENT OF CLAIMS

25

7. More than thirty days prior to the institution of this lawsuit, Michal Harris filed

26 a charge ofdiscrimination with the EEOC alleging violations ofTitle VII by Defendant

27 Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.

28

8. Since at least July 2001, Defendant Employer has engaged in unlawful practices

COMPLAINT
2

Case 2:05-cv-01978-FCD-PAN Document 1-1 Filed 09/29/2005 Page 3 of 4

its Sacramento, Califomiajob site in violation of section 703(a)(l) and Section 704(a) of Title

2

VII, 42 U.S.C. §§2000e-2(a) and 2000e-3(a). These practices include subjecting Ms. Harris

3

and other similarly situated non-¥lhite employees to racial harassment and to an offensive,

4

abusive, intimidating and hostile work environment based on their race, non-White. The

5

practices also include discharging Ms. Harris for complaining about the harassment.

6

9. The effect of the practices complained of above has been to deprive Ms. Harris

7

and other similarly situated employees ofequal employment opportunities and otherwise to

8

adversely affect their status as employees because of their race, non-Wl1ite.

9

10. The w1Jawful employment practices complained of above were and are

10 intentional.

II

I I. The unlawful employment practices complained of above were and are done

12 with malice and/or reckless disregard for the federally protected rights of Ms. Harris and other

13 similarly situated employees.

14

PRAYER FOR RELIEF

15

WHEREFORE, tile Commission respectfully requests that this Court:

16

A. Grant a permanent injunction enjoining Defendant Employer, its officers,

17 successors, assigns, and all persons in active concert or participation witll it, from engaging in

18 racial harassment, race discrimination, retaliation and any other employment practice which

19 discriminates on the basis of race.

20

B. Order Defendant Employer to institute and carry out policies, practices, and

21 programs which provide equal employment opportunities for non-White employees and which

22 eradicate the effects of its past and present unlawful employment practices.

23

C. Order Defendant Employer to make whole Ms. Harris and other similarly

24 situated employees by providing compensation for past and future pecuniary losses resulting

25 from the unlawful employment practices described above, including medical expenses, with
26 interest, in amounts to be determined at trial.

27

D. Order Defendant Employer to make whole Ms. Harris and other similarly

28 situated employees by providing compensation for past and future non-pecuniary losses caused

COMPLAINT 3

Case 2:05-cv-01978-FCD-PAN Document 1-1 Filed 09/29/2005 Page 4 of 4

I

by the above unlawful conduct, including pain and suffering, emotional distress, indignity, loss

2

ofenjoyment of life, loss ofself-esteem, and humiliation, in amounts to be determined at trial.

3

E. Order Defendant Employer to pay Ms. Harris and other similarly siruated

4

employees punitive damages for its malicious and reckless conduct described above, in

5

amounts to be determined at trial.

6

F. Grant such further relief as the Court deems proper.

7

G. Award the Commission its costs in this action.

8

JURY TRIAL DEMAND

9

The Commission requests a jury trial on all questions of fact raised by its complaint.

10

Respectfully submitted,

11

ERIC DRIEBAND

12

General Counsel

13

14

15 Dated: J/vt/r!J
16

17 18 Dated:

-I

19

20 Dated: cJBll(o\

21

I

22

EQUAL EMPLOYMENT

23

OPPORTUNITY COMMISSION

San Francisco District Office

24

350 The Embarcadero, Suite 500

San Francisco, CA 94105

25

Telephone: (415) 625-5651

26

27

28

COMPLAINT
4

 
 Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 1 of 26

WILLIAM R. TAMAYO, SBN 084965 (CA) JONATHAN T. PECK, SBN 12303 (VA) · 2 MARCIAL. MITCHELL, SBN 18122 (WA) U.S. EEOC 3 San Francisco District Office 350 The Embarcadero, Suite 500 4 San Francisco, CA 94105 Telephone No. (415) 625-5651 5 Fax No. (415) 625-5657 Marcia.Mitchell@eeoc.gov
6
Attorneys for Plaintiff
7
ROBERT L. WENZEL- SBN 97956 8 ATKINSON, ANDELSON, LOYA, RUUD & ROMO
A Professional Corporation 9 17871 Park Plaza Drive, Suite 200
Cerritos, California 90703-8597 10 Telephone: (562) 653-3200- (714) 826-5480
Facsimile: (562) 653-3333 11 RWenzel@aalrr.com

12 Attorney for Defendant

13

14
UNITED STATES DISTRICT COURT FOR
15
THE EASTERN DISTRICT OF CALIFORNIA
16

17 U.S. EQUAL EMPLOYMENT 18 OPPORTUNITY COMMISSION,
Plaintiff,
19
vs.
20
CARL KARCHER ENTERPRISES, dba 21 CARL'S JR. RESTAURANT,

22

Defendant

23

) Case No.: 2:05-CV-01978 FCD PAN
lCONSENT DECREE
~
)
~
)

24

25
26
1.
27
28

I.

INTRODUCTION

Plaintiff, US Equal Employment Opportunity Commission ("Commission" or "EEOC"

brought this lawsuit under Title VII of the Civil Rights Act of 1964 and Title I of th

-)

·I , Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 2 of 26

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3 4
5 6 7 8
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5.
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Civil Rights Act of 1991, to correct alleged unlawful employment practices on the basi of racial harassment and retaliation and to make whole Ms. Michal Galloway (nee Harris ("Galloway") and other similarly situated employees of the defendant, Carl Karche Enterprises dba Carl's Jr. Restaurants (hereinafter "CKE" or the "Company"), alleged} aggrieved by the unlawful practices. The Commission alleges that an employee of CKE James Teteak ("Teteak"), unlawfully subjected Galloway and others to a racially hostil work environment at one of CKE's restaurants. The Commission further alleges tha CKE retaliated against Galloway after she complained of such harassment. CKE denies these allegations and asserts that no unlawful harassment, discrimination, o retaliation took place at CKE. In the interest of resolving this matter and continuing and strengthening CKE' commitment to equal employment opportunity, and as a result of having engaged i comprehensive settlement negotiations, the Commission and CKE (hereinafter referred t as "the Parties") have agreed that this action should be finally resolved by entry of thi Consent Decree.
II. GENERAL PROVISIONS This Court has jurisdiction over the subject matter and the parties to this action. Thi Court will retain jurisdiction over this Decree for all purposes until the expiration of th term ofthis Consent Decree. The entry of this Consent Decree will further the objectives ofTitle VII and will be in th best interest of the Parties, those for whom the EEOC seeks relief and the public. The Court has reviewed the terms of this Consent Decree in light of the pleadings, th record herein and the applicable law and now approves the Consent Decree in its entirety. This Consent Decree is final and binding upon the Parties, their successors and assigns. This Consent Decree shall not constitute an adjudication and/or finding on the merits o the case. The existence of this Consent Decree shall not in any way constitute a

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Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 3 of 26

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3 4 5 6 7 8 9 10 11
7.
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22 23 24 25 26
9.
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admission by CKE that it has violated Title VII, Title I or any other applicable laws. The parties agree that this Consent Decree resolves all claims arising out of EEO Charge No. 376-2003-00073 and the complaint filed in this action, and constitutes complete resolution of all claims against CKE of racial harassment by James Tetea and/or retaliation for complaining about the alleged harassment by Teteak that were mad or could have been made by the Commission, Galloway and/or any other Eligibl Claimants who take under this Consent Decree. This Consent Decree does not, however resolve any future charges or charges that may be pending with the EEOC other than th charges specifically referenced in this paragraph and those that may be released b Galloway, the EEOC and/or Eligible Claimants pursuant to this Consent Decree. This Consent Decree in no way affects EEOC's right to process, in accordance with th EEOC's standard procedures, charges filed by individuals against CKE allegin violations of federal employment discrimination statutes, other than charges filed b Galloway and Eligible Claimants relating to claims against CKE of racial harassment b James Teteak arising during the period February 23, 2001 to October 10, 2002 andlo retaliation for complaining about the alleged harassment by James Teteak. Charge include those pending as of the effective date of this Consent Decree and filed in th future. Processing of charges includes the administrative investigation and conciliatio and commencement of civil actions on the basis of such charges. This Consent Decree comprises the full and exclusive agreement of the parties WI respect to the matters discussed herein. No waiver, modification or amendment of an provision of this Consent Decree shall be effective unless made in writing and approve by all the Parties to this Decree, except that any substantive change, modification o amendment of any provision of this Consent Decree shall require approval by the Court. The Parties shall bear their own attorneys fees and costs.

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Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 4 of 26

2
3 1.
4 5 6 7 8 9 10
II
12 13 14
15 1.
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Ill.
SCOPE OF CONSENT DECREE The duration of the Consent Decree shall be two (2) years from the date of the entry o the Decree, provided that CKE has complied substantially with the terms of this Consen Decree. CKE will be deemed to have complied substantially if the Court has not mad any findings or orders during the term of the Consent Decree that CKE has failed t comply with any term of this Consent Decree. During the two-year term of this Consen Decree, this Court shall retain jurisdiction overthis matter and the Parties for the purpos of enforcing compliance with the Consent Decree, including issuing such orders as my b required to effectuate its purposes.
IV. GENERAL INJUNCTIVE PROVISIONS Discriminatory Harassment. Consistent with Section 703 of Title VII, 42 U.S.C. §2000e 2, CKE and its officers, managers (including supervisory employees), successors an assigns, and all those in active concert or participation with them, hereby agree not to (a) discriminate against persons on the basis of race in the terms and conditions o employment; (b) engage in or be a party to any action, policy or practice that is intende to or is known to them to have the effect of harassing or intimidating any employee o the basis of race; or (c) create, facilitate or permit the existence of a work environmen hostile to African-American or other non-White employees. Notwithstanding the above the Parties agree that the mere fact that a charge of racial discrimination and/or racia harassment has been filed with the EEOC during the term of this Consent Decree doe not standing alone prove that CKE has failed to comply with the provisions of thi section and/or of the Consent Decree nor does it have any effect on this Consent Decree. The EEOC bears the burden of proving that CKE failed to take all reasonable step within its power to insure compliance with this Consent Decree in order to establish tha

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2 2.
3 4 5 6 7 8 9 10
11 12 13
14 15 16 17 18 19 20 21 22 23 24 1. 25 26 27 28

CKE is liable of civil contempt for violating the terms ofthe decree. Non-Retaliation. CKE and its officers, managers (including supervisory employees) successors or assigns, and all those in active concert or participation with them, agree no to engage in, implement or permit any action, policy or practice with the purpose o retaliating against any current or former employee of CKE because he or she has in th past, or during the term of this Consent Decree: (a) opposed any practice of harassment o other discriminatory acts on the basis of race or color made unlawful under Title VII; (b filed a Charge of Discrimination alleging any such practice; (c) testified or participated i any manner in any investigation (including, without limitation, any internal investigatio undt?rtaken by CKE), proceeding or hearing in connection ·with this case; (d) wa identified as a possible witness in this action; (e) asserted any rights under this Consen Decree; or (f) sought and/or received any monetary or non-monetary relief in accordanc with this Consent Decree. Notwithstanding the above, the Parties agree that the mere fac that a charge of retaliation has been filed with the EEOC against CKE for retaliatio during the term of this Consent Decree, does not standing alone prove that CKE ha failed to comply with the provisions of this section and/or of the Consent Decree. Th EEOC bears the burden of proving that CKE failed to take all reasonable steps within it power to insure compliance with this Consent Decree in order to establish that CKE i liable of civil contempt for violating the terms of the decree.
v.
MONETARY RELIEF Total Settlement Sum. CKE agrees to pay the total sum of $255,000.00 (Two-Hundre Fifty-Five Thousand and No Cents) (hereinafter referred to as the "Total Settlemen Sum") as damages, to be allocated to Michal Galloway and other Eligible Claimants (a defined below at section V(3)(B), if any, for their claims of alleged racial harassment b James Teteak and/or retaliation. CKE agrees to pay the Total Settlement Sum ·

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Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 6 of 26

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3 4 5 6 7 8
9
10 11 12 13 14 15 16 17 18
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20 21 22 23 24 25 26 27 28

accordance with the terms set forth below at sections V(2) and (3). Michal Galloway. A. Michal Galloway shall be paid a satisfactory sum representing damages for los
wages and damages for physical injuries and/or physical illness and/or emotiona distress. The Parties agree that Galloway shall be paid a total of $105,000.0 (One Hundred-Five Thousand Dollars and No Cents). The $105,000.00 amount i defined as the Galloway Initial Settlement Sum. The Parties agree that $5000.0 (Five Thousand Dollars and No Cents) of the Galloway Initial Settlement S shall represent payment for lost wages and that payroll taxes shall be withhel from this amount. The Parties also agree that $100,000.00 (One Hundre Thousand Dollars and No Cents) of the Galloway Initial Settlement Sum shall b payment for damages for physical injuries and/or physical illness and/o emotional distress. B. The parties agree that Galloway may be entitled to recover additional money fro the remaining $150,000.00 (one hundred and fifty thousand dollars) (th "Settlement Fund"). The EEOC shall determine the remaining amount, if any, t which Galloway is entitled pursuant to the claims procedures set forth below i section V(3). C. CKE shall pay the Galloway Initial Settlement as follows: 1) Within ten (1 0) days of the entry of this Consent Decree, counsel fo
Michal Galloway, (The Law Offices of Michal D. Nkosi, P.O. Box 2582 Chester VA 23821 (hereafter "Nkosi"), Nkosi shall forward an origina signed copy of the Release Form attached hereto as Exhibit A and th Internal Revenue Service Form W-9 attached hereto as Exhibit 8 t counsel for CKE executed by Nkosi and Galloway. Nkosi shall forwar copies ofthe executed forms to counsel for the EEOC. 2) Within ten (10) days of the receipt of the Release Form and W-9 form

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Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 7 of 26

2 3 4 5 6 7 8 9 10
11
12 13 14 15 16 17 18 19 20 21 22 23 24
25 3.
26 27 28

executed by Nkosi and Galloway, CKE shall issue a check to "The La Offices of Michael D. Nkosi in Trust for Michal Galloway" in the amoun of $5000.00 (Five Thousand Dollars and No Cents) less applicable payrol taxes and another check to "The Law Offices ofMichael D. Nkosi in Trus for Michal Galloway in the amount of $100,000.00 (One Hundre Thousand· Dollars and No Cents). CKE shall make the payments in th form of a business check, cashier's check or certified check. Within te (10) days ofthe receipt ofthe executed Release and W-9 form, CKE shal mail the checks set forth above to Nkosi. Copies of these checks shall b sent to counsel for the EEOC. 3) The Parties agree that Nkosi is responsible for the distribution of th Galloway Initial Settlement Sum to Galloway. The failure of Nkosi t distribute these funds and/or any dispute between Galloway and Nkosi to the amount distributed to Galloway shall have no effect on this Consen Decree. 4) CKE shall report the payment in the amount of $5000.00 (Five Thousan Dollars and No Cents), which represents payment for lost wages, b providing Nkosi with a copy of a W-2 form relating to such payment. CKE shall report the payment in the amount of $100,000.00 (On Hundred Thousand Dollars and No Cents) by issuance of an Intern Revenue Service Form 1099 in accordance with the information provide by Nkosi and Galloway on the Internal Revenue Service W-9 Form Galloway's 1099 form shall be mailed to Nkosi. Identified and Unidentified Claimants A. Settlement Fund Amount. CKE agrees to pay the sum of $150,000.00 (On Hundred Fifty Thousand Dollars and No Cents) in damages ("Settlement Fund" to be distributed to all "Eligible Claimants" (as that term is defined in sectio

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Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 8 of 26

. 1

V(3)(B) below) all in accordance with the provisions of this Consent Decree.

2

B. Eligible Claimants

3

1) Definition. The Settlement Fund shall be used to make payments t

4

persons, including, Michal Galloway, who timely submit Claim Form

5

(such persons are hereinafter referred to as "Claimants") and who th

6

Commission determines to be eligible to receive monetary relief in thi

7
lawsuit (such persons are hereinafter referred to as "Eligible Claimants.").

8
2) Eligibility Criterion. Eligible Claimants shall include only those claiman

9
who satisfy each and all of the following criteria:

10

a. The Claimant is one of the following:

11

1

An African-American individual employed by CKE at i

12

Elk Grove-Florin Road Restaurant in Elk Grove, Californi
13

(Restaurant Number 223) at any time between February 23
14

15

2001 and October 10, 2002; or

16

ii A Non-White individual employed by CKE at its El

17

Grove - Florin Road Restaurant in Elk Grove, Califomi

18

(Restaurant Number 223) from February 23, 2001 t

19

October 10, 2002 and signed a petition alleging that Jame

20

Teteak engaged in racial harassment;

21

b. The Claimant had a work schedule which overlapped at any tim

22

with the schedule ofJames Teteak;

23

c. The Commission timely received a Claim Form from the Claimant

24

in accordance with the procedures set forth in this Consent Deere

25
and in the Notice of Consent Decree ("Notice") and Claim Form
26
A copy of the Claim Form and Notice are attached hereto an
27
incorporated herein by this reference as Exhibits C and D
28
respectively;

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Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 9 of 26

d. The Commission received credible evidence that the Claimant wa

2

subjected to racial harassment by James Teteak or retaliate

3

against for opposing racial harassment by James Teteak during th

4

period of February 23, 2001 to October 10, 2002; and

5

e. The Claimant has not previously signed a release which woul

6

cover the actions complained of by Claimant.

7

3) Factors Considered b the EEOC in Makin

Determinations

8
Acting it its discretion, the EEOC shall exclusively determine

9
eligibility of Claimants for relief under this Consent Decree. I
10
determining such eligibility, the EEOC shall consider the followin
11
factors: (a) severity of any alleged harassment/retaliation; (b) duration o
12

any alleged harassment/retaliation; (c) extent of alleged harm, and (d
13

whether, and, if so, the extent to which the Claimant complained to th
14

15

EEOC and/or cooperated or participated in this litigation or th

16

administrative investigation leading to this litigation prior to the date o

17

entry of this Consent Decree. The EEOC may also consider whateve

18

evidence the EEOC deems appropriate, including, but not limited

19

evidence received by the EEOC in its investigation of the charges o

20

discrimination underlying this action and in connection with the claim

21

process provided by this Consent Decree.

22

4) Decision on Amounts Allocated to Eligible Claimants. Acting in it

23

discretion, the EEOC shall determine the portion of the Settlement Fun

24

that will be allocated to each Eligible Claimant for damages for physica

25
injuries and/or physical illness and/or emotional distress. The amount

26
allocated to each Eligible Claimant shall reflect the factors enumerated i

27
paragraph V(3)(B)(3), above. This Consent Decree contemplates tha
28
there may be significant differences in awards to the Eligible Claimants.

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Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 10 of 26

C. Procedures to Provide Notice

2

I) Consent Decree Administrator. The Parties agree that the firm of Rus

3

Consulting (the ••consent Decree Administrator") shall be responsible fo

4

the administration of sending notices and payments from the Settlemen

5

Fund.

6

. 2) Notice to Potential Claimants.

7
a. Notice of Consent Decree by Consent Decree Administrator
8
Notice shall be provided to all individuals who satisfy th
9
criteria set forth above at sections V(3)(B)(2)(a) and (b
10
(the "Potential Claimants").
11
11 No later than thirty (30) days after the entry of this Consen
12
Decree, CKE shall provide the Consent Deere
13
Administrator with a list of individuals who meet th
14

15

criteria of a Potential Claimant (the "Claimant List"). Th

16

Claimant List shall state the name, social security numbe

17

and last known home address for each individual on th

18

Claimant List. A copy of the Claimant List shall also b

19

forwarded to the EEOC. The EEOC agrees that it wil

20

utilize the Claimant List only in conjunction with th

21

administration of this Consent Decree and that it wil

22

disclose the information on the Claimant List only

23

persons who need the information for the purposes o

24

administering this Consent Decree.

25
lll The Consent Decree Administrator shall follow th
26
following steps to ensure that notice is provided to al
27
Potential Claimants:
28
(a) Within ten (10) days of the receipt by the Consen

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Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 11 of 26

Decree Administrator of the Claimant List from CKE, th

2

Consent Decree Administrator· shall perform a ·nation

3

change of address search using the National Change o

4

Address Data Base for each Potential Claimant.

5

(b) Within seven (7) days of performing the nationa

6

change of address . search, the Consent

7
Administrator shall mail the Notice and Claim Fo

8
(Exhibits C and D) by first class United States mail postag
9
prepaid to each address which it obtains as a result of th
10
national change of address search.
11
c) If, after sending the Notice and Claim Form
12
address(es) found as a result of the national change o
13
address search, a Notice and Claim Form is returned a
14

15

undeliverable, the Consent Decree Administrator shal

16

perform a search through the Lexis/Nexis Social Securit

17

Credit Card Header Records Data Base to determin

18

alternative and/or additional addresses for any Potentia

19

Claimant whose Claim Fonn was returned as undeliverabl

20

and send a copy of the Notice and Claim Fonn to any an

21

all addresses of the Potential Claimant obtained through th

22

Lexis/Nexis search not previously identified and used fo

23

mailing. The Lexis/Nexis search shall be conducted wi ·

24

seven (7) days of notice that the Notice and Claim Fo

25
were returned as undeliverable;

26
d) As to any Potential Claimant to whom the Consen
27
Decree Administrator has not been able to deliver a Notic
28
and Claim Form after conducting the Lexis/Nexis searc

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Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 12 of 26

and sending the Notice and Claim Form to all altemativ

2

and/or additional . addresses obtained through

3

Lexis/Nexis search, the Consent Decree Administrator shal

4

send a Notice and Claim Form to the Potential Claimant a

5

any and all previous addresses obtained for the Potenti

6

Claimant either from CKE's records, the national change o

7
address search and/or the Lexis/Nexis search not previous!
8
identified and used for mailing.
9
(e) If, after performing the steps outlined in paragraphs (a
IO
through (d) above, the Consent Decree Administrator ha
I I
not been able to deliver a Notice and Claim Form to an
I2
Potential Claimants, the Consent Decree Administrator wil
I3
provide written notice to the EEOC informing the EEOC o
I4

15

the claimant's name and addresses to which the Consen

16

Decree Administrator has attempted delivery. The notic

17

to the EEOC shall be sent no later than seven (7) days afte

I8

the Consent Decree Administrator has learned that the step

I9

in paragraphs (a) through (d) were unsuccessful.

20

lV No later than twenty-one (21) days after the completion o

21

all of the steps set forth above at section (V)(3)(C)(2)(iii

22

the Consent Decree Administrator shall provide counsel fo

23

CKE and the EEOC with a declaration setting forth al

24

steps that it took to provide notice of this Consent Deere

25
to all potential claimants and attesting to the completion o
26
the notice process (except for any ongoing attempt t
27
obtain valid mailing addresses and resending of an
28
returned Notice and Claim forms) (the "Declaration o

- 12

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 13 of 26

Compliance"). The Declaration of Compliance shall b

2

filed with the court by CKE's counsel within seven (7) day

3

of receipt by CKE's counsel.

4

b. Notice by CKE. CKE agrees to provide Notice to all Potentia

5

Claimants who are still employed by CKE by including a copy o

6

the Notice and Claim Form (Exhibits C and D) in the paychec

7
which is issued immediately after CKE provides the Claimant Lis
8
to the Consent Decree Administrator.
9
c. Sufficient Notice. The parties agree that compliance with th
10
procedures set forth in this section constitutes sufficient notice t
11
Potential Claimants of this Consent Decree and satisfies th
12
requirements of due process. Nothing else shall be required of th
13
Consent Decree Administrator or CKE. The EEOC reserves th
14

right to take additional steps to locate Potential Claimants after th
15

16

Consent Decree Administrator has exhausted its efforts. An

17

additional steps which the EEOC wishes to take to locate Potenti

18

Claimants must be completed at least thirty (30) days prior to th

19

last day that a Potential Claimant may make a claim under sectio

20

V(3)(D). The Parties agree that the EEOC's additional steps rna

21

not include steps which the Consent Decree Administrator h

22

already taken and further agree that any additional steps to locat

23

Potential Claimants may include only one (1) publication in

24

newspaper.

25

D. Making a Claim. All Potential Claimants who wish to participate in th

26

distribution of the Settlement Fund must complete and return the Claim Form C

27
the form of Exhibit C attached to this Consent Decree) to the EEOC so that it i
28
received by the EEOC or its designated agent(s) or postmarked no later than Jun

- 13

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 14 of 26

16,2006.

2

E. The EEOC's Determination ofEligibility and Computation of Claims.

3

I) Determination of Eligibility. Within sixty (60) days after the deadline fo

4

receipt by the EEOC of returned Claim Forms, the EEOC shall make.i

5

determinations as to claimant eligibility and determinations as to the gros

6

(pre-tax) amount of monetary relief from the Settlement Fund that will b

7
awarded to Eligible Claimants.

8
2) Notification of Eligibility. Within thirty (30) days after the EEOC'
9
determination of eligibility and amounts under section (V)(3)(E)(l) above
10
the EEOC shall mail to each person from. whom it has received a Clai
11
Form the following information: (a) whether he or she has been designate
12
as eligible to be awarded relief; (b) the determination as to the gross (pre
13
tax) amount of the monetary relief to which such person shall be entitled
14

15

and (c) notice of the opportunity to object to the EEOC's determination·

16

accordance with the provisions of the Consent Decree. The letter will als

17

inform each Eligible Claimant that any monetary payments received fro

18

the Settlement Fund may be subject to mandatory federal, state and loca

19

income tax withholding.

20

3) Objection Procedure. Any objections to the EEOC's determination unde

21

section (V)(3)(E)(2) must be done as follows:

22

a. Any Claimant whose Claim Form is timely received by the EEO

23

and who desires to object to an EEOC determination concernin

24

eligibility or amount under section V(3)(E)(2) above, may do sob

25
submitting to the EEOC within thirty (30) days after the date o

26
mailing of the EEOC's determination, a written objection.
27
such written objection must state the basis for the objection and th
28
specific reasons for such objection.

-14

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 15 of 26

b. Within two {2) weeks after receipt of such written objection, th

2

EEOC shall review its determination as to eligibility for th

3

objecting claimant and either deny the objection or modify it

4

determination as to eligibility and/or amount.

5

c. If the EEOC's modification of the eligibility

6

determination results in a change to the eligibility detenninatio

7
and/or amount determined of any other Eligible Claimant, th
8
EEOC shall mail the modified determination to any and al
9
affected Eligible Claimants.
10
d. Any Eligible Claimant who receives a modified determination ha
11
the right to file an objection within thirty (30) days of the receipt o
12
the modified determination. The EEOC then has two (2) week
13
from the date of receipt of the objection
14

15

objection or modify the determination.

16

e. This process shall continue until no objections to the EEOC'

17

determinations of eligibility and amount are received for a perio

18

of twenty-one (21) days. If no objection is received to the EEOC'

19

determinations for a period of twenty-one days after

20

determinations are sent, the determinations shall become

21

EEOC's final determination.

22

F. Notification of Final Distribution Amount. Once the EEOC's determination ha

23

become final, the EEOC shall mail to each Eligible Claimant a letter notifying th

24

Eligible Claimant of the gross (pre-tax) amount of the payment to which sue

25

Eligible Claimant was finally determined to be entitled (hereinafter the "Fina

26
Gross Settlement Amount"). The EEOC shall also mail to each Eligible Claiman
27
a copy of the Release Form attached hereto as Exhibit E and the Internal Revenu
28
Service W-9 Form attached hereto as Exhibit B. When each Eligible Claiman

-15

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 16 of 26

returns the completed and executed Release and W-9 forms to the EEOC, th

2

EEOC shall forward to CKE a copy of the executed Release and W-9 form an

3

information as to the amount of the Final Gross Settlement Amount to be paid t

4

the Eligible Claimant who provided .the Release and the address to which th

5

Eligible Claimant's check may be sent.

6

G. Payment of Final Gross Settlement Amount.

7
receiving the Release and W-9 forms executed by an Eligible Claimant and th
8
information regarding the check to be provided to that Eligible Claimant, C
9
· shall mail a check drawn in the Final Gross Settlement amount to the Eligibl
10
Claimant from whom CKE received the Release and W-9 form at the address o
11
the Eligible Claimant provided by the EEOC.
12
H. Payment of Portion of Settlement Fund to Galloway. In the event that as part o
l3
the claims process the EEOC determines that Galloway is entitled to addition
14

15

compensation, the EEOC shall mail a Release Form and W-9 form, attached

16

Exhibits E and B, to Nkosi for execution and completion by Nkosi and Galloway

17

When the EEOC receives the Release and W-9 forms executed by Nkosi an

18

Galloway, the EEOC shall forward a copy of the executed Release and W-9 t

19

CKE, along with information as to the Final Gross Settlement Amount due t

20

Galloway. Within fourteen (14) days of receipt ofCKE's receipt ofthe Releas

21

and W-9 executed and completed by Nkosi and Galloway, CKE shall mail

22

check drawn in the Final Gross Settlement Amount for Galloway to Nkosi. Th

23

Parties agree that Nkosi is responsible for the distribution of the Final Gros

24

Settlement Amount to Galloway. The failure of Nkosi to distribute these fund

25
and/or any dispute between Nkosi and Galloway as to the amount distributed t
26
Galloway shall have no effect on this Consent Decree.
27
I. Verification of Payment of Final Gross Settlement Amounts. CKE shall send
28
copy of each check mailed pursuant to this section to the EEOC. CKE shall als

-16

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 17 of 26

notify the EEOC in writing of any check for the Final Gross Settlement Amoun

2

that is returned. The Consent Decree Administrator shall take the following step

3

to track those Eligible Claimants who did not receive the check for the Fin

4

Gross Settlement Amount:

5

6

1) The Consent Decree Administrator shall do a national change of address

7

search using the National Change of Address Data Base for each address to which

8
CKE mailed any returned check and shall send the returned check to the address
9
which it obtains from the national change of address search;
10

11

2) If the check is returned as undeliverable again, the Consent Decree

12

Administrator shall perform a search through the Lexis/Nexis Social Security

13

Credit Card Header Records Data Base to determine alternative and/or additional

14
addresses for any Eligible Claimant whose check was returned as undeliverable
15
and attempt to deliver the check to any alternative and/or additional addresses
16

17

obtained through the Lexis/Nexis search.

18
The Parties agree that if the Consent Decree Administrator has been unsuccessful
19

20

in locating an Eligible Claimant to deliver a Final Gross Settlement Amount for a

21

period of six (6) months from the date of issuance of the check, that the amount o

22
the Final Gross Settlement Amount that could not be delivered shall be included

23
in the unallocated amount that shall be distributed as set forth below in section
24

25

V(3)(K).

26
J. Reporting ofPavment of Final Gross Settlement Amounts. CKE shall report eac
27
payment of a Final Gross Settlement Amount to an Eligible Claimant by issuanc
28
of an Internal Revenue Service Form 1099 to the Eligible Claimant in accordanc

-17

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 18 of 26
with the information provided by the Eligible Claimant on the Internal Revenu Service W-9 form. K. Allocation of Any Amounts Not Paid Out of Settlement Fund. If the Final Gros Settlement Amount cannot be delivered to an Eligible Claimant within six month of the Final Determination, any amount not paid to an Eligible Claimant shall b distributed to the following charitable organization: William K. Morg Scholarship Fund. Costs Associated with Claimant Process. All costs associated with the distribution of th Settlement Fund to Eligible Claimants shall be paid as follows: A. CKE shall be responsible for paying the reasonable costs associated with th Consent Decree Administrator and costs associated with the processing of chec to Eligible Claimants and required administrative agency filings (e.g. issuance o pertinent 1099s, etc.). The Parties agree that the maximum amount of the cost CKE will be required to pay above and beyond the Total Settlement Amount i $10,000.00 (Ten Thousand Dollars and No Cents). If the $10,000.00 (te thousand dollar) cap is reached prior to the completion of Consent Deere Administrators obligations under the claims process, the EEOC reserves the righ to complete the process of locating the claimants or to pay the remaining cost fo the administrator to complete the process. B. The EEOC agrees that should it decide under section V(3)(C)(2)(c) to take step to provide notice to Potential Claimants in addition to those steps taken by th Consent Decree Administrator to provide notice to Potential Claimants as se forth in section V(3)(C)(2)(a)(iii), that the EEOC shall be responsible for all cost associated with taking those additional steps. C. The EEOC will be responsible for paying reasonable costs associated with th processing of claim forms pursuant to Section V(3)(B), (E) and (F), above.
-1S

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 19 of 26

2
3 L
4 5 6 7 8
9
10
11
12
13
14 15 16
17 2.
18
19
20 21 22 23 24 25 26 27 28

VI. SPECIFIC INJUNCTIVE RELIEF Zero Tolerance. CKE affirms the following "Statement of Zero-Tolerance Policy an Equality Objectives": CKE is frrnlly committed to maintaining a zero-tolerance policy concerning discriminatory harassment and retaliation against individuals who report harassment in the company's workplace; to swiftly and frrmly responding to any acts of harassment and retaliation of which the company becomes aware; to implementing a disciplinary system that is designed to strongly deter future acts of harassment or retaliation; and to actively monitoring its workplace in order to ensure tolerance, respect and dignity for all people. This paragraph does not create any individual or common law causes of action or othe rights that would not otherwise exist under statute. EEO and Harassment Policies. A. Content of Policy. CKE certifies that its harassment policies, contain all of th following and will continue to contain the following throughout the duration o this Decree: (i) definitions of discriminatory harassment, with specific referenc to harassment based on race and color; (ii) examples to supplement the definition of harassment based on race and color; (iii) appropriate discipline andlo corrective actions for incidents of discriminatory harassment; (iv) strong non retaliation language with examples to supplement the definition of retaliation; (vi language that complaints of harassment and/or retaliation will be accepte irrespective of whether they are made verbally or in writing; (vii) a timetable fo commencing an investigation after a complaint is made or received and fo appropriate remedial action, if necessary, to be taken upon conclusion of

- 19

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 20 of 26
investigation; and (viii) language which indicates that, promptly upon th conclusion of the investigation of a complaint, CKE will communicate to th complaining party the results of the investigation and the remedial actions take or proposed, if any. B. Distribution of Policy. CKE shall effectively disseminate its EEO and harassmen policies and procedures by: 1) Distributing copies of the policies to all current employees within Distric
22 within thirty (30) days of the entry of this Consent Decree; and 2) Giving a copy of the policies to and reviewing the policies with all ne
employees in District 22 upon the employees' hire. District 22 include Units 59, 199,223,251, 264,351,516, 557 and 567. Complaint Procedure. CKE certifies that CKE's policy and procedure relating t complaints of harassment (the "Complaint Policy"), is designed to encourage employee to come forward with complaints about violations of its harassment policies. The Partie further agree that CKE's Complaint Policy provides CKE's employees with convenient confidential and reliable mechanisms for reporting incidents of harassment an retaliation. The Parties also agree that CKE's Complaint Policy notifies employees tha they can lodge a complaint with their immediate supervisor or the Director of Hum Resources and provides the name and telephone number for the Director of Hum Resources. CKE shall ensure that contact information for the Director of Huma Resources is also continuously posted in a prominent place at all of CKE' s busines locations in District 22 during the term of the Consent Decree. Policies Designed To Promote Supervisor Accountability A. Communications of Potential Discipline for Engaging m Harassment. C agrees that it shall impose appropriate discipline up to an including termination suspension without pay or demotion, upon any supervisor or manager who C determines has engaged in racial harassment or permits any such conduct to occ
-20

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 21 of 26

2
3
4 5 6 7 8 9 10
5.
11 12 13 14
15 6.
16 17 18 19 20 21 22 23 24 25 26 27 28

in his or her work area or among employees under his or her supervision, or wh retaliates against any person who complains or participates in any investigation o proceeding concerning such conduct. CKE shall communicate this policy to all o its supervisors or managers in District 22. B. Communication of Duty to Actively Monitor Worksite. CKE agrees that it shal continue to advise its managers and supervisors in District 22 of their duty t actively monitor their work areas and to ensure employees' compliance wi CKE's anti-harassment policy, and to report any incidents and/or complaints o harassment and/or retaliation. Posting Regarding Consent Decree. The Notice of the Consent Decree, attached heret as Exhibit D, shall be, and remain, posted in a clearly visible location frequented b employees at each restaurant in CKE's District 22 during the term of this Consen Decree. Training of Employees. CKE agrees that within ninety (90) days of the entry of thi Consent Decree, under the direction of an outside consultant paid by CKE, CKE shal provide and require all current employees in CKE's Unit No. 223 and all current and ne supervisors and managers working in District 22 to attend anti-harassment training. Th purpose of said training shall be to give participants a thorough understanding o harassment issues, particularly racial harassment, including but not limited to theories o liability under Title VII, sources of legal protection for racial harassment victims and th employer's obligation to take preventative, investigative and remedial action with respec to harassment complaints and to review company policies (including discipline policies and practices related to racial harassment and retaliation. The training shall be designe and conducted with specific reference to the anti-harassment policies of CKE by outside consultant in conjunction with company personnel. CKE agrees to allow th outside consultant to conduct the significant portions of all training programs. Th consultant shall be selected by CKE, subject to the approval by counsel for the EEOC

-21

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 22 of 26

which approval shall not be unreasonably withheld. The consultant shall be a person o

2

entity with established experience in matters of racial discrimination and the applicabl

3

laws and regulations. Any change in consultants during the terms of this Consent Deere

4

can be done only upon the joint approval of counsel for the EEOC and CKE, or, if

5

dispute arises, upon Order of the Court.

6

A. Training Logistics. The content, method of training and size oftraining classes i

1
subject to the approval by the EEOC which approval shall not be unreasonabl
8
withheld and which shall take into consideration specific operational need
9
identified by CKE at the time its submits its description of the training to th
10
EEOC. CKE agrees to provide a description of each training program to counse
11
for the EEOC no later than thirty (30) days before the training programs ar
12
scheduled to be held. The EEOC must voice any objection to the training withi
13

14

twenty (20) days of the scheduled training.

15

B. Acknowledgement of Training Attendance. All persons attending mandata

16

anti-harassment training pursuant to this Consent Decree shall sign

17

acknowledgement of their attendance at the training, the date thereof, and thei

18

position. with the company. The consultant shall retain the originals of thes

19

acknowledgements and provide CKE with a copy thereof.

20

VII.

21

EXPUNGEMENT OF RECORDS AND DISCLOSURE OF INFORMATION

22

REGARDING GALLOWAY'S AND ELIGIBLE CLAIMANT'S EMPLOYMENT

23 1. 24 25 26 27 28

CKE shall not disclose any information about or make references to any charges o discrimination or this lawsuit in responding to employment reference requests fo information about Michal Galloway or any of the Eligible Claimants. In response to specific inquiry from a potential employer of Galloway or an Eligible Claimant, CK agrees that it shall disclose only the dates of employment, position held and final rate o pay of Galloway and/or the Eligible Claimants. Galloway and the Eligible Claimant

-22

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 23 of 26
shall inform all potential employers seeking employment reference requests to direct thei request to Esther Luna, Carl Karcher Enterprises, Inc. CKE shall expunge from Michal Galloway's personnel file any reference termination and her charge of discrimination against CKE and this lawsuit. CKE shall modify Michal Galloway's personnel file such that the reason separation from employment is. officially reported as a resignation rather than termination. CKE may report any information about Galloway and/or any Eligible Claimant required to state or federal authorities. CKE may disclose information about Galloway and/or any Eligible Claimant if require to do so by a Court order. Within ten (1 0) days from the date of entry of this Consent Decree, CKE shall provid Michal Galloway with a letter which states her dates of employment and positions held The original letter of reference shall be sent to Nkosi.
VIII. REPORTS TO THE COMMISSION Training Report. Within thirty (30) days of completion of the training required b section VI(6) of this Consent Decree, CKE will send the EEOC appropriate verificatio of its completion of harassment training. Racial Harassment Complaint Reports. CKE agrees to file the following reports relatin to complaints of racial harassment made in CKE's District 22. A. Initial Complaint Report. Ninety days after the entry of this Consent Decree CKE will mail to counsel for the EEOC a report containing the followin information and documentation (the "Initial Complaint Report"): 1) A summary of all racial harassment complaints made in CKE's District 2 since the entry of the Consent Decree. This summary shall contain a brie
• 23

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 24 of 26

description of the type of complaint and a statement as to each as to th

2

result of the investigation of such complaint. This report will identify th

3

complaints by number and will not set forth identifying information o

4

CKE employees.

5

2) A copy of all records, documents and other writings relevant to

6

complaints and investigations shall be maintained by CKE during th

7
period of the Consent Decree. Copies of the documents shall be mad

8
available to the Commission within ten (10) days following a writte
9
·request from the Commission to CKE's counsel. The EEOC recognize
10
that documents relating to these complaints may contain identifyin
11
information of CKE employees. The EEOC agrees that it will not use thi
12
identifying information for any purpose other than the administration o
13

this Consent Decree and that it shall not provide this identifyin
14

15

information to any person other than a person who needs this informatio

16

to administer this Consent Decree.

17

B. Subsequent Complaint Reports. On the first day of January and June of each ye

18

during the duration of this Consent Decree, CKE will mail to counsel for th

19

Commission a report containing the above documentation and information.

20

IX.

21

RETENTION OF JURISDICTION AND EXPIRATION OF CONSENT DECREE

22 1.
23 24 25 26 27 28

This Consent Decree shall terminate two years from the date of entry by the Court, unles the EEOC petitions this Court for an extension of the Decree because of noncomplianc by CKE. If the EEOC asserts that CKE has not complied with the Consent Decree, th EEOC shall provide written notification of the alleged breach to CKE and will no petition the Court for enforcement sooner than thirty (30) days after providing writte notification. The thirty-day period following written notice shall be used by the partie
for good faith efforts to resolve the issue. If the EEOC petitions the Court and the Co

-24

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 25 of 26

2
3
4 2.
5
6
7
8
9
10
II
12
Ill
13
Ill
14
15 Ill 16 Ill 17 Ill 18 Ill 19 Ill 20 Ill 21 Ill 22 Ill 23 Ill 24 Ill 25 Ill
26
Ill
27
Ill
28

finds that CKE is not in substantial compliance with the terms of the Decree, the Co may extend this Consent Decree. Any extension of this Consent Decree must be ordere by this Court prior to the expiration of the Consent Decree on its own terms. The parties agree that CKE is in substantial compliance with this Consent Decree as Ion as CKE has complied with the provisions set forth in this Consent Decree. The Partie further agree that the mere fact that an employee has filed a charge with the EEO · alleging racial harassment or retaliation against CKE during the term of this Consen Decree is not proof standing alone that CKE has not complied with the terms of thi Consent Decree. The EEOC bears the burden of proving that CKE failed to. take al reasonable steps within its power to insure compliance with this Consent Decree in orde to establish that CKE is liable of civil contempt for violating the terms of the decree. ·

-25

Case 2:05-cv-01978-FCD-PAN Document 4-1 Filed 12/06/2005 Page 26 of 26

3. This Consent Decree shall expire by its own tenns at the end of the two (2) years withou

2

further action by the Parties. Upon the expiration of the Consent Decree, the EEOC wil

3

dismiss this lawsuit with prejudice. Additionally, upon the expiration of this Consen

4

Decree, the EEOC releases any and all claims against CKE arising out of or relating t

5

this action and the underlying charge and/or claims of harassment by James Tete

6
and/or retaliation for complaining about harassment by Teteak.
7

8

Respectfully submitted.

9

10 11 12
13 14
15 Dated:

;;;/&Jdr

JAMES L LEE Deputy General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L. Street, N.W. Washington DC 20507

16
17 Dated:
18

lY}b/~ J

19 Dated:
20

21 22 23 24
25 Dated:
26
27 28

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, Ca 941 Telephone: (415) 625 651

C

S . SEIGEL, ·

Attorney for Defendant

CKE RESTAURANTS, INC.

6307 Carpinteria Avenue, Suite A

Carpinteria, Ca 93013-2901

-26

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 1 of 16
EXHBIT A
Consent Decree CIV. NO. 2:05-CV-01978 FCD PAN

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 2 of 16

GENERAL RELEASE AND SETTLEMENT AGREEMENT This General Release and Settlement Agreement ("Agreement") is made and entered into by and between Michal Galloway ("Galloway") and Carl Karcher Enterprises, Inc. ("CKE"). (Galloway and CKE are collectively referred to herein as the "Parties").

I. GENERAL RECITALS This General Release and Settlement Agreement is made for the following purposes and with reference to the following facts:

1.1 Purpose The purpose of this Agreement is to settle and compromise all disputes and

controversies existing between the Parties hereto, including, but not limited to any and all

claims that are raised or might have been raised by Galloway against CKE. This

Agreement supplements the Consent Decree entered into by the Equal Employment

Opportunity Commission ("EEOC") and CKE, which is necessary to properly resolve

and settle the complaint for racial harassment and retaliation filed by the Equal ~

Employment

Opportunity

Commission,

Case

NumberZ..·,0~-6.·1·-

DV11~ ~CD which arose

~~ out

1'Cv91U
,

of the charge for racial harassment and retaliation filed by Galloway with the EEOC

(Charge No. 376A300073).

The

consent

decree

entered

into

in

Case

No.Jr .oS-

(

)

) a

O\C copy

f

l

~

ftl).C'JN

of which is attached as Exhibit "1" to ~his Agreement, is referred to as the ''Consent

Decree".

13525.00 140/543733v I

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 3 of 16

n.
SETTLEMENT OBLIGATIONS 2.1 Obligations of CKE
A. · Pavment to Galloway Subject to Galloway's compliance with the terms of this Agreement, CKE will pay to Galloway an Initial Settlement Sum of one hundred and five thousand dollars ($105,000.00) and the amount, if any, that the EEOC determines should be paid to Galloway from the Settlement Fund which is provided for in Sections V(2)(B) and V(3) of the Consent Decree. The payment of the Initial Settlement Sum and the amount, if any, that the EEOC determines should be paid to Galloway from the Settlement Fund under Sections V(2)(B) and V(3) of the Consent Decree is the total amount that CKE will pay to Galloway.
B. Characterization of Payments to Galloway It is expressly understood and
oC> -~ '-(l-dt
agreed that $5;a:::D. of the Initial Settlement Sum of one hundred and five
thousand dollars ($105,000.00) that will be paid to Galloway has been designated by Galloway as the compensation for Galloway's claim for back pay. The Parties specifically agree and acknowledge that the amount allocated as back pay was decided upon by Galloway, and not upon any advise, counsel, or demand by CKE and/or its agents with respect to the allocation herein. Galloway represents that this allocation is fair and reasonable under the facts of this case. Galloway further acknowledges that CKE is relying solely on her representation in this regard, and on the request by her with respect to this allocation, in entering into this Agreement.

003525.00140/543733vl

2

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 4 of 16

C. Time and Form of Payments to Galloway The payments due to Galloway shall be made as follows:

1) Payment of Initial Settlement Sum Within ten (1 0) days of receipt of this

Agreement executed by Galloway and her attorney, Michael Nkosi

("Nkosi"), and an Internal Revenue Service Form W-9 executed by Nkosi

and Galloway, CKE shall forward, via mail to counsel for Galloway,

Nkosi, at The Law Offices of Michael D. Nkosi, P.O. Box 2582, Chester,

Va. 23821, the following checks in the form of a business check, cashier's

check or certified check:

m~rr~

(A)

A

check

in

the

amount

of

$ ~CCO.

«
,

? less

appropriate

payroll

taxes and withholdings, made payable to "The Law Offices of

Michael D. Nkosi in Trust for Michal Galloway". This amount is

the agreed upon amount of back pay owed to Galloway. To the

extent any withholdings are made, FICA and federal and state

withholding taxes shall be deducted from this amount that is

designated as back pay only. CKE shall pay the employer's share

of FUTA and FICA on the back pay amount and shall not deduct it

·from the settlement amount. CKE shall issue a W-2 form in

relation to this payment.

003525.00140/543733v I

3

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 5 of 16

(B)

A

check

in

the

amount

of

$ \OO;CCV•

o::::> made

payable

to

"The

Law

Offices of Michael D. Nkosi in Trust for Michal Galloway". This

amount shall be to compensate Galloway for her physical injuries,

physiCal illness and/or emotional distress, and, as such, no

withholding will be made from the amount designated as

compensatory damages.

2) Payment of Any Additional Sum Due to Galloway Under Section V(2)(B) of the Consent Decree Should the EEOC determine that Galloway is entitled to recover additional money from the Settlement Fund under Sections V(2)(B) and V(3) of the Consent Decree, CKE shall make the payment as provided in Section V(3)(H) of the Consent Decree. Specifically, within fourteen (14) days of CKE's receipt of the Release and W-9 form relating to payment from the Settlement Fund executed by Nkosi and Galloway, CKE shall forward a check drawn in the Final Gross Settlement Amount made payable to The Law Offices of Michael D. Nkosi in Trust for Michal Galloway" to Nkosi.

3) With the exception of the payment for lost wages set forth in section 2.1(C)(l)(A), CKE shall prepare and distribute 1099 tax reporting forms to Galloway and shall make appropriate reports to the Internal Revenue Service and other tax authorities in accordance with the information provided by Nkosi and Galloway on the Internal Revenue Service W-9 forms. Galloway's 1099 form shall be mailed to Nkosi.

003525.00140/543733vl

4

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 6 of 16

D. Non-Admission ·of Liability or Wrongdoing CKE and the Releasees have denied and continue to deny any violation of any law, contract or public policy or any other wrongdoing whatsoever and any liability to Galloway. CKE and the Releasees specif1cally deny and· disclaim any liability to or wrongful acts against Galloway or any other person.. This Agreement shall not in any way be construed as an admission by CKE or ·the Releasees of any liability or wrongdoing, whatsoever, or as an admission by CKE or the Releasees that they have acted wrongfully in any way with respect to Galloway or any other person, or as an admission by CKE or the Releasees that Galloway or any other person has any rights whatsoever against CKE or the Releasees.

E. Employment Reference Reguests CKE agrees not to disclose any information

or make any reference to any charges of harassment or retaliation or Case No.

2.'.06

~c.,\l-'(>\'=\7!:),.....,-.C.D

I'~
in responding

to

employment

reference

requests

about

Galloway.

In

response to a specific inquiry from a potential employer about Galloway, CKE

agrees that it shall disclose only the dates of Galloway's employment, the

positions held by Galloway and Galloway's final rate of pay. Galloway agrees

that she shall inform all potential employers to direct any employment reference

requests to Esther Luna at Carl Karcher Enterprises, Inc.

F. Letter Relating to Galloway's Emplovment CKE agrees that within ten (10)

Z. •. O~y GV ~ Dltf1t>'-DP Y/J.t·..v

days ofentry of the Consent Decree in Case No.

, CKE shall send Nkosi

a letter which sets forth the dates of Galloway's employment with CKE and the

positions held by Galloway.

003525.00140/543733v I

5

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 7 of 16
·,-

G. Galloway's Personnel File CKE agrees that upon being provided with a copy of
this Agreement executed by Galloway and Nkosi, CKE shall remove from
Galloway's personnel file any reference to Galloway's termination, the charge of
Z,tOFJ-CJJ-01 cq t:1 ~6.-:> 1>Al\U
harassment and retaliation filed ·by Galloway and Case No. ___. CKE agrees
that upon receipt of a copy of this Agreement executed by_ Galloway and Nkosi,
CKE shall modify Galloway's personnel file to reflect· that the reason for
Galloway's separation from employment with CKE was resignation.

2.2 Obligations of Galloway

A. Provision of Release and W-9 Forms Within ten (10) days ofthe entry of the

z;.oC:::>- CJJ- D\'f?'b -r::cv vA.M.

Co_nsent Decree in Case No.

, counsel for Galloway, Nkosi, shall

forward a copy of this Agreement and a completed Internal Revenue Service W-9 _

form executed by Nkosi and Galloway to counsel for CKE and the Equal

Employment Opportunity Commission.

B. Dismissal of Claims In addition to the other obligations of Galloway set forth herein, Galloway shall cause any other suit, claim, or matter, which she has pending in her name against CKE and its employees, to be dismissed with prejudice in their entirety.

C. Covenant Not to Sue Galloway agrees that she will not file, nor permit to be filed on her behalf, or assist in the prosecution of, any claim, charge, complaint, lawsuit or legal action or other process of any kind or nature whatsoever, with any court, agency, board, panel, department, organization or other entity concerning any claim which is released pursuant to this Agreement.

003525.001401543733vl

6

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 8 of 16

D. Indemnification - The Parties agree that the payments set forth in section 2.1 of this Agreement constitute a compromise of all claims that Galloway has against CKE and the other Releasees. Galloway acknowledges that she will seek the further advise and counsel of her tax attorneys and/or' accountants, and that the obligation to accurately report and eventually pay all appropriate taxes on all of the settlement amounts is hers alone, notwithstanding the allocation requested by Galloway herein. In the event that some or all of the payment set forth in section 2.l(C)(l)(B) and 2.1(C)(2) are asserted to be classified as taxable income by a federal, state or other taxiing authority, Galloway covenants and agrees that she will be solely liable for any and all taxes, interests and penalties payable on said amount and that Galloway shall indemnify and hold harmless CKE and the ,Releasees from any claims,· demands, actions, causes of action, attorneys fees, costs, penalties, interest and/or expenses arising out of or in any way related to the tax treatment of any or all of the payments set forth in sections 2.l(C)(l)(B) and 2.l(C)(2) of this Agreement.

E. No Reapplication/No Rehire/No Reemployment Galloway acknowledges and agrees that she will not apply for or seek, either directly or indirectly, will not be hired for and will not maintain any position of employment with CKE and/or, as applicable, its parents, subsidiary, former, successor or affiliated entities.

F. Confidentiality Except as specifically authorized by a term ofthis Agreement, Galloway hereby acknowledges that the amount of the settlement should remain confidential. Notwithstanding this provision, Galloway may disclose the amount or terms of this settlement to her attorneys, accountants and/or tax advisors, and to

003525.00140/543733vl

7

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 9 of 16

governmental taxing authorities, as may be necessary for Galloway to comply with applicable law. In addition, this Confidentiality Provision shall not be construed to prohibit Galloway from complying with a lawful court order or process requiring disclosure, written or oral, nor ~hall Galloway be prohibited from revealing or disclosing any fact or circumstance which is a matter of public record and is contained in either the complaint filed by the EEOC; in the Consent Decree entered into by the EEOC and CKE and entered by the court, or in the press release issued by the EEOC announcing the resolution of the case.
G. Non-Disparagement Galloway acknowledges that her claims against CKE have been amicably resolved. Galloway and CKE agree to refrain from disparaging each other.

III. GENERAL RELEASE AND WAIVER OF CLAIMS 3.1 Full and Complete Release by Galloway For and in consideration of the obligations above described, Galloway, for herself, and on behalf of her agents, attorneys, representatives, successors and assigns, forever releases and discharges CKE and, as applicable, its owners, shareholders, partners, respective agents, representatives, successors, assigns, employees, officers, directors, attorneys, parent, subsidiary and affiliated entities ("Releasees'') from any and all claims, demands, debts, ·liabilities, attorneys' fees, accounts, obligations, costs, expenses, liens, actions, causes of action (at law, in equity, or otherwise), rights, rights of action, rights of indemnity (legal or equitable), rights to subrogation, rights to contribution and remedies of any nature

003525.00140/543733v I

8

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 10 of 16

whatsoever, known or unknown (except for those arising as a result of a breach of any provision of this Agreement), including, but not limited to any actions relating to her employment with CKE and/or the conclusion of that employment, termination in violation of public policy, claims under Title VII of the Civil Rights .Act of 1964, the Civil Rights Act of 1991, the California Fair Employment and Housing Act, claims for racial harassment and retaliation, intentional infliction of emotional distress, breach of implied contract, breach of the covenant of good faith and fair dealing, or any federal, state or local law or regulation prohibiting employment discrimination or regulating employment.
3.2 Knowing and Voluntary Waiver of Unknown Claims Galloway understands that the releases provided for in this Agreement extend to all claims whether or not claimed or suspected, up to and including the date of execution hereof, and constitute a waiver of each and all of the provisions of California Civil Code section 1542, which reads as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if lqlown by him or her must have materially affected his or her settlement with the debtor.
Galloway hereby acknowledges that the effect and import of this provision has been fully explained to her and that she is aware of its contents and legal effect. Galloway expressly waives any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle or common

003 525.00140/543733v I

9

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 11 of 16

law, which is similar, comparable, or equivalent to California Civil Code section 1542.

IV. MISCELLANEOUS PROVISIONS 4.1 Waiver of Undue Influence This Agreement is executed voluntarily and without duress or undue influence on the part of or on behalf of either of the Parties, or of any other person, firm, or other entity. Galloway acknowledges and agrees that she has not in any way relied on any silence by CKE or Releasees in entering into this Agreement or the Consent Decree. Each party to this Agreement further acknowledges and agrees that they have all the information they desire before entering into this Agreement, and· that they had the opportunity to consult with an attorney of their choosing prior to entering into this agreement.
4.2 Entire Agreement This Agreement contains the sole and entire agreement and understanding of the Parties with respect to the entire subject matter hereof, and any and all prior discussions, negotiations, commitments and understandings related hereto are hereby merg~d herein. No representations, oral or otherwise, express or implied, other than those contained herein have been made by any party hereto. No other agreement not specifically referred to herein or contained herein oral or otherwise shall be deemed to exist or to bind any of the parties hereto.
4.3 Further Necessary Actions All Parties hereto agree, on the demand of the other party hereto, to execute or deliver any instrument, furnish any information or perform any other

003525.001 40/543733vl

10

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 12 of 16

act reasonably necessary to carry out the provisions of this Agreement without undue delay or expense.
4.4 Severability Should any provision of this Agreement be declared or ~etermined by any court of competent jurisdiction to be illegal, invalid, or unenforceable1 the legality, validity, and enforceability of the remaining parts, terms or provisions shall not be affected thereby and said illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this Agreement In lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid, or unenforceable provision as maybe possible and be legal, valid, and enforceable.
4.5 Successors This Agreement shall bind and inure to the benefit of the Parties hereto and to their respective successors, assigns, legatees, heirs, and personal representatives, separately and collectively.
4.6 Governing Law This Agreement is entered into pursuant to the laws of the State of California and shall be· interpreted pursuant to those laws.
4.7 Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute together one and the same instrument. A legible executed facsimile may be used in lieu of an originaL
4.8 Authority Each party entering into this Agreement warrants that they have the authority to enter into this Agreement.
4.9 Waiver of Costs and Attorneys' Fees It is expressly understood and agreed that each party shall bear its own attorneys' fees and costs.

003525.00140/543733vl

11

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 13 of 16

FR£l1 : law Offices of Michael D Hkosi FAX I-IJ. : 3603312165

Sep. 14 2f?.e5 H:SlfJII P9

4.10 Otnlenbio of Claims Galloway represents and agrees that she has not signed~ assigned, or transferred, ot attempted to assign or ttausfer to any person or entity. any of the claims she is relca!ring in this A.gree:olent.

GALLOWAY ACKNOWLEDGES THAT SHE HAS READ TinS AGREEMENT,
UNDERSTANDS IT AND IS VOLUNfARILY ENIE.RINO INTO IT WITH THE
INTENTION OF RELINQUISHING ALL CLAIMS AND RIGHTS, KNOWN AND UNKNOWN, OllffiR THAN THOSE THAT ARISE AS A RESULT OF TillS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this General Release
and Settlement Agreement. on the dates set forth.

DATED: --------~-

Carl Karcher Enterprises, Inc.

By: Charles A. Seigel
Senior Vice President and General Counsel

APPROVED AS TO FORM AND CONTENT:
DATED: cv~~b

. DATED: )d/Cif05>

By:

~ "'C.u?:<:i:)

MICHAEL NKOSI

ATfORNEYS FOR MICHAL GALLOWAY

ATKINSON. ANDELSON. LOYA. RUUD & ROMO
By: F;AeJ J-~ vv~ ROBERT L. WENZEL ATTORNeYS FOR CKE

oom.Hllll481501l3vl

12

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 14 of 16

· FRCJ:I ~ La.w OH ices of Mi chae I D Nkosi FAX I n : 3'683372165

Sep. 14 20B5 l1:51RH P9

4.10 Opuship of Claims Galloway represmts. and agrees that she has not signed. assigned, or tr.msfened, ot attempred to assip or tnmsfcr to my person or cmity. any of the claims she is releasing in this Agreement.
GALLOWAY ACKNOWI..EDOES TJiAT SHE HAS READ TillS AGREEMENT, UNDERSTANDS IT AND IS VOLUNTAR.lLY EN1'ER.INO INTO IT WITH THE INTENTION OF RELINQUISHING ALL CLAIMS AND RJGHTS, KNOWN AND
UNKNOWN, 01HElt THAN THOSE THAT AAISE AS A RESULT OF nus AGREEMENT.
IN WITNESS WHEREOF'" the parties have executed this General Release and Settlement Agreement_ on the dates set forth.
doS DATED: {?,(
By:

APPROVED AS TO FORM AND CON'FENT:

OAn:D: qj14~

~o.NKoru

·By:

~ 't:.ill<:J:)

MICHAEL . OSI

ATTORNEYS FO.R. MICHAL GALLOWAY

DATED: - - - - -

ATKINSON, ANDBLSON, LOYA, RUUD & ROMO

Br.~~==~~~~~------------
ROBER.T L 'WEN.2':a
ATTORNEYS FOR. CKE

0015n 00140tS07J)vl

12

FRCI't

Case 2:05-cv-01978-FCD-PAN Document 4-2
law Offices of l'li chael D Hkosi fCAX tfi. 3693372165

Filed 12S/e0p6./2104025l1lBS P11a:g4e3'A1t15 oPfl 16

~~m W•9

Req.uest for Taxpayer

(Rw. JiJ1UAI"y 200IS)

Identification Number and Certification

Ot-plJI"''tNNnlot'*'.. l~
iI P I - - s Narnetallll<»i\61\,_~~-,..~ )J\\CjW_,... C.~

c. Busineu - · ;t aift~ ' - ' ~

Give font' to ~ request~. Do no\ send to the IR.S.

» Enter )'00( TIN in lha ~·box. Th~ TIN~ ~'lUSt matCh 1M nsme given on line , IMliiS
ooei<up WithtiOidillO· FOr ~ 1111& iii )'I:IVl IIOCiBt - a . , lWIIber ~ ~. let· a te!liOII>t
a alien. se~~~. pfOPiietOr. 01 ~ ei\Uiy. De !he P1sn I ~ 01\ page. 3. For oll1et elllllies. it is
your emplOyer l(temillcation tWmbet IE!I'4. If )'0" cb riOt ' - - a aumbef, -How "' 9l'f. T'IH Of> page
Note. U the.~ a i n - UIIM Q<llt-., ste 1t1e c:hat:l on Pfl9lll' It fot' ~ 01'1 i!of'IC!.$&· ~
10 enler.

Under penam&s ol petjuoy, I CQftify that;

Of.,. 1 . The nunlt>Or st1c>w01 on mi& lorm is my COI'fect ~ ~ ~ IOf 1am waiting tor a I'IUil'lllW 10 bt- ~ 10 me). ll'ld

2. I am not ~ ro ~ ~ becatl&1l: ~ lllltl ~ lrDm ~ wWw.llding.

f NINe· nor 1188nflll!ified by !Ill! Internal

Revenue 5eovic::IJ fiRS) that I am S!Aijed: lit l:lecicllp WIUlholcling. as. It I'QSollt of a fejurc lit repott alf lnl.ere.;l 01 dMdenc:b. Or (c1 me IRS has

nolilied me lh8l. I am nc> longer .suDl«110 ~ WiDiholding. ai\Cl

3. IAm:!U.S.~~aV.S.r~~

CettilieBtion ~- You must ~ ous item 2 abowl. it )'01.1 lli:MII. lleeiii'IOtilled by thot·IAS mal yo.s - Qlft8t\llr S\lbjec1tc bactup

withholding becau&e you ~'~ave tailed 10 roport 1111 iftten!lst IBid ~ M ,aloll' We rewm. For reel estate. Vansaclions. item ~ !'IOeS not apply.

For mortgage inte<e&t paid. ~Or a~ of seet.nd pfl)P81ty, ~of debt. eon~ 10.., ~retirement

arrangeme<'\ll~ ....0. genetllly. ~ Oll1er !han inwesl ancf. diYicfen&. l!'fW are not ~ ro Sign tne ~. but. )IOU must

provide yOUt I:Otfecf TIN. (See the

. OAUI0-"'11-_....,r--~

Si9f1 Here

~ot ~, uJO. .-.son .. I'

Purpose of Form

A p9f$01\ wtm_ ~ reQuired to Gle an inlomlfliion return· wttl'l the
I~S, musl obtain yo~.~~ eorreol taxpayer idenbflcatien ~
[TIN) to report, lor example, income paid to you, real estaUt transactions, mortgage interest you paid. acquiSition or abandonment of secvred proper\}'. cance.lation of debt, or contributions you m~ to an IRA.
U.S. ~on. Use Form W-9. only if 'fOIJ are a U.S. person
(lnciUO!tlg a ra5tden1 ai-Min). to provide your correct TIN to the oerson requesting. it (the· req:uQ$ler) and, when applicable, to:
1,. Certify lhat the TIN you are giving· is correct (or yoo are.
wiiul.ng for a number to be ~.
2. Certify that you are not subJ&Cl to backvp withholding,
or
3. Claim e11emption from backup withholding if you are a
U.S. exempt payee.
Note. II a request81 gives you a form ot/ler than Form W-9m
tequesr your TlN, you m!JSI use the requester's form if it is
sub.stantislty similar to this FOI'ITI W-9. For tederatlax. purposes~ are consiclerecle: person if you
are:

(otl'l~ than a tor eign es1a~ or trust. See 100$ &e!;lions 300701-6{8} and 7ta) lor addiUonnt inbmation..
Foreign pet80I'l.. If you are a foreign person, cto not use Form W-9. Instead. use the appropriate Fonn W-8 (see Publieatiot!StS.. Will'lholding of Tax on Notlresioent AJ~ns :snd FOreign Erdities).
N~ aian who become$ a resident al;.n.
G9nQrally. only a nonres!<lent alien indt¥idual may use the
tMns of a !ale \1eaty to reduce Or eliminate U.S. \ax on Certain typet: of ~- However. most tax treaties comaifl a proviSiOn known. aa a •saving clause." Exceptions speeilied in the saving clause may permit an exemption from tax to continue f~ cenain \ypQS of income even af\er the teeipient has otheJwise become 8 U.S. resident aliiJn lor ta.11 purposes
Jr you an~ a U.S. resident alitm who $relying on an exception ~ in the savifl9 clause of a tax traaty to
claim an exempUon from U.S. tax on c:onair> type~ of lncon•e.
you mt.l:llt at1actt a S'latemern to F'orm w.g t11at speentes the
following fNe ilerns:

• An 111dividval who is a Citizen or residem of the Uni\ed States,
• A partnership, .eorpotation. company, or association
created or orgaruz0a !fl tl'lli! Uoi\Qd Slates or under lhe laws
of the Urti!ed States. or

1. The treaty cotmtry. Generally, lhts must be the same treaty under which you claimed exemption from tax as a nonresloen:t alien.
2. The tretlly article acklressmg the ~-
3. The article r:"-'mber (or location) in ths tax trealy lhat
contaJnS the savll"'g clause and its excePtions.

Cat Nn. rona

Film! W..S ~. 1-2005)

Case 2:05-cv-01978-FCD-PAN Document 4-2 Filed 12/06/2005 Page 16 of 16

W•9 Form
(Rev. January 2005)

Request for Taxpayer Identification Number and Certification

Give form to the requester. Do not send to the IRS.

lif!fflll Taxpayer Identification Number (TIN)

Enter your TIN in the appropriate box. The TIN provided must match the name given on Une 1 to avoid ·I Social security number

. t I ± l ± I backup withholding. For individuals. this is your social security number (SSN). However, for a resident
alien. sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is

your employer identification number (EIN). If you do not have a number, see How to get a TIN on page 3.

or

Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose number to enter.

Certification

Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: {a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and
3. I am a U.S. person (including a U.S. resident allen).
Certification instructions. You must c;oss out item 2 above If you have been notified by the IRS that you are currently subject to backup withholding because you have tailed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. for mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than i erest and dividends, you are not required to sign the Certification, but you must provide your correct TIN. (See the instructions on P. e 4.)

Sign Here

Signature of U.S. person ~

Date~

Purpose of Form

A person who is required to file an information return with the IRS, must obtain your correct taxpayer identification number (TIN) to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA
U.S. person. Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN to the person requesting it (the requester) and, when applicable, to:
1. Cert1fy that the TIN you are giving is correct (or you are waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee.
Note. If a requester gives you a form other than Form W-9 to request your TIN, you must use the requester's form if it is
substantially similar to this Form W-9.
For federal tax purposes you are considered a person if you are:
• An individual who is a citizen or resident of the United States,
• A partnership, corporation, company, or association
created or organized in the United States or under the laws
of the United States, or

• Any estate (other than a foreign estate) or trust. See

Regulations sections 301.7701-S(a) and 7(a) for additional information.

Foreign person. If you are a foreign person, do not use

Form W-9. Instead, use the appropriate Form W-8 (see

Publication 515, Withholding of Tax on Nonresident Aliens

and Foreign Entities).

·

Nonresident alien who becomes a resident alien.

Generally, only a nonresident alien individual may use the

terms of a tax treaty to reduce or eliminate U.S. tax on

certain types of income. However; most tax treaties contain a

provision known as a "saving clause." Exceptions specified

in the saving clause may permit an exemption from tax to

continue for certain types of income even after the recipient

has otherwise become a U.S. resident alien for tax purposes.

If you are a U.S. resident alien who is relying on an exception contained in the saving dause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items:
1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.

2. The treaty article addressing the income.

3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.

Cat. No. 10231X

Form W-9 (Rev. 1·2005}

Case 2:05-cv-01978-FCD-PAN Document 4-3 Filed 12/06/2005 Page 1 of 5
EXHIBITB
Consent Decree CIV. NO. 2:05-CV-01978 FCD PAN

Case 2:05-cv-01978-FCD-PAN Document 4-3 Filed 12/06/2005 Page 2 of 5

W-9 Form
(Rev. November 2005)
Department of the Treasury Internal Revenue S""'""'

Request for Taxpayer Identification Number and Certification

Give form to the requester. Do not send to the IRS.

c.i
(!)
Ol
0"'.
c
0

act>.!ol!
l;';;

.. 1.)

--0
..e..

.::::J:
~

a...,

l;:
'(j

(!)
Q.
0

l!l
0

Name {as shown on your income tax return)

Business name, if different from above

0 lndMduaV

Check appropriate box:

Sole proprietor

Address (number, street, and apt. or suite no.)

City, state, and ZIP code

List account number(s) here (optionaQ

0 Corporation

-------------....·I 0 0 Partnership

Other .,.

0 Exempt from backup
withholding

Requester's name and address (optionaQ

[I ......t-'..7 ""' •ut:uLut\.icsuu" Number {TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on Une 1 to avoid backup withholding. For individuals, this is your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is

I I I + I + I Social security number

your employer identification number (EIN). If you do not have a number, see How to get a TIN on page 3.

or

Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose number to enter.

Under penalties of perjury, I certify that

1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and

2. l am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or {c) the IRS has notified me that I am no longer subject to backup withholding, and

3. I am a U.S. person (including a U.S. resident alien).

Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup

withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply.

For mortgage interest pald, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement

arrangement ORA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must

I provide your correct TIN. (See the instructions on page 4.)

Sign Here

Signature of U.S. person ~

Date~

Purpose of Form
A person who is required to file an information return with the IRS, rnust obtain your correct taxpayer identification number (TIN) to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA.
U.S. person. Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN to the person requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee.
In 3 above, if applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners' share of effectively connected income.
Note. If a requester gives you a form other than Form W-9 to request your TIN, you must use the requester's fonn if it is substantially similar to this Form W-9.
For federal tax purposes, you are considered a person if you
are:

• An individual who is a citizen or resident of the United States,
• A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States, or
• Any estate (other than a foreign estate) or trust See Regulations sections 301.7701-6(a) and 7(a) for additional infonnation.
Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax on any foreign partners' share of income from such business. Further, in certain cases where a Form W-9 has not been received, a partnership is required to presume that a partner is a foreign person, and pay the withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid withholding on your share of partnership income.
The person who gives Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States is in the following cases:
• The U.S. owner of a disregarded entity and not the entity,

Cal. No. 10231 X

Form W-9 (Rev. 11-2005)

Case 2:05-cv-01978-FCD-PAN Document 4-3 Filed 12/06/2005 Page 3 of 5

Form W-9 (Rev. 11·2005)
• The U.S. grantor or other owner of a grantor trust and not the trust, and
• The U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.
Foreign person. If you are a foreign person, do not use Form W-9. Instead, use the appropriate Form W-8 (see Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a "saving clause." Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the recipient has otherwise become a U.S. resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items:
1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from tax.
5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocoQ and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.
If you are a nonresident alien or a foreign entity not subject to backup withholding, give the requester the appropriate completed Form W-8.
What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 28% of such payments (after December 31, 2002). This is called "backup withholding." Payments that may be subject to backup withholding include interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments
you receive if you give the requester your correct TIN, make
the proper certifications, and report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the Part II instructions on page 4 for details),

Page 2
3. The IRS tells the requester that you furnished an incorrect TIN,
4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup withholding. See the instructions below and the separate Instructions for the Requester of Form W-9.
Also see Special rules regarding partnerships on page 1.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties.
Specific Instructions
Name
If you are an individual, you must generally enter the name shown on your income tax return. However, if you have changed your last name, for instance, due to marriage without informing the Social Security Administration of the name change, enter your first name, the last name shown on your social security card, and your new last name.
If the account is in joint names, list first, and then circle, the name of the person or entity whose number you entered in Part I of the form.
Sole proprietor. Enter your individual name as shown on
your income tax return on the "Name" line. You may enter your business, trade, or "doing business as (DBA)" name on the "Business name" line.
Limited liability company (LLC). If you are a single-member LLC (including a foreign LLC with a domestic owner} that is disregarded as an entity separate from its owner under Treasury regulations section 301.7701-3, enter the owner's name on the "Name" line. Enter the LLC's name on the "Business name" line. Check the appropriate box for your filing status (sole proprietor, corporation, etc.), then check the box for "Other" and enter "LLC" in the space provided.
Other entities. Enter your business name as shown on required federal tax documents on the "Name" line. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on the "Business name" line.
Note. You are requested to check the appropriate box for your status (individual/sole proprietor, corporation, etc.).
Exempt From Backup Withholding
If you are exempt, enter your name as described above and check the appropriate box for your status, then check the "Exempt from backup withholding" box in the line following
the business name, sign and date the form.

Case 2:05-cv-01978-FCD-PAN Document 4-3 Filed 12/06/2005 Page 4 of 5

Form W-9 (Rev. 11-2005)

Generally, individuals (including sole proprietors) are not exempt from backup wi1hholding. Corporations are exempt from backup withholding for certain payments, such as interest and dividends.
Note. If you are exempt from backup withholding, you should still complete this form to avoid possible erroneous backup withholding.

Exempt payees. Backup withholding is not required on any payments made to the following payees:

1. An organization exempt from tax under section 501 (a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f}(2),
2. The United States or any of its agencies or
instrumentalities,

3. A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities,

4. A foreign government or any of its political subdivisions, agencies, or instrumentalities, or

5. An international organization or any of its agencies or instrumentalities.

Other payees that may be exempt from backup withholding include:
6. A corporation, 7. A foreign central bank of issue,

B. A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States,
9. A futures commission merchant registered with the Commodity Futures Trading Commission,

10. A real estate investment trust,

11. An entity registered at all times during the tax year under the Investment Company Act of 1940,

12. A common trust fund operated by a bank under

section 584(a),

·

13. A financial institution,

14. A middleman known in the investment community as a nominee or custodian, or

15. A trust exempt from tax under section 664 or described in section 4947.

The chart below shows types of payments that may be exempt from backup withholding. The chart applies to the exempt recipients listed above, 1 through 15.

IF the payment is for •••

THEN the payment is exempt for •••

Interest and dividend payments

All exempt recipients except for 9

Broker transactions

Exempt recipients 1 through 13.
Also, a person registered under the Investment Advisers Act of
1940 who regularly acts as a
broker

Barter exchange transactions and patronage dividends

Exempt recipients 1 through 5

Payments over $600 required

Generally, exempt recipients

to be reported and direct

1 through 7 •

sales over $5,000 1

.'see Form 1099-MISC, Mrscellaneous Income, and Its instructions•

Howeve<, the following payments made to a corporation Oncluding gross

proceeds paid to an attorney under section 6045(~. even if the attorney is a

corporation) and reportable on Form 1099-MISC are not exempt from

backup withholding: medical and health care payments, attorneys' fees; and

payments for services paid by a federal executive agency.

Page 3
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to 9et an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an !TIN, see How to get a TIN below.
If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. However, the IRS prefers that you use your SSN.
If you are a single-owner LLC that is disregarded as an
enti1y separate from its owner (see Limited liability company (LLC) on page 2), enter your SSN (or EIN, if you have one). If the LLC is a corporation, partnership, etc., enter the enti1y's EIN.
Note. See the chart on page 4 for further clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one
immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local Social Security Administration office or get this form online at www.socialsecurity.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an !TIN, or Form S&-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/businesses and clicking on Employer ID Numbers under Related Topics. You can get Forms W-7 and SS-4 from the IRS by visiting www.irs.gov or by calling 1-800-TAX-FORM (1-800-829-3676).
If you are asked to complete Form W-9 but do not have a TIN, write "Applied For" in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester.
Note. Writing "Applied For" means that you have already applied for a TIN or that you intend to apply for one soon.
Caution: A disregarded domestic entity that has a foreign owner must use the appropriate Form W-8.

Case 2:05-cv-01978-FCD-PAN Document 4-3 Filed 12/06/2005 Page 5 of 5

Form W-9 (Rev. 11-2005)
Part II. Certification
To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if items 1, 4,
and 5 below indicate otherwise.
For a joint account, only the person whose TIN is shown in Part I should sign (when required). Exempt recipients, see Exempt From Backup. Withholding on page 2.
Signature requirements. Complete the certification as
indicated in 1 through 5 below.
1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you
do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the fonn.
3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification.
4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified .that you have previously given an incorrect TIN. "Other payments" include payments made in the course of the requester's trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification.

Page 4

What Name and Number To Give the Requester

For this type of account:
1. Individual
2. Two or more individuals ijoint account)
3. Custodian account of a minor (Uniform Gift to Minors Act)
4. a. The usual revocable savings trust (grantor is also trustee)
b. So-called trust account that is not a legal or valid trust under state law
5. Sole proprietorship or single-owner LLC

Give name and SSN of:
The individual The actual owner of the account or. if combined funds, the first individual on the account 1 The minor 2
The grantor-trustee 1
The actual owner 1
The owner 3

For this type of account:
6. Sole proprietorship or single-owner LLC
7. A valid trust, estate, or pension trust
8. Corporate or LLC electing corporate status on Form 6832
9. Association, club, religious, charitable, educational, or other tax-exempt organization
10. Partnership or multi-member LLC
11. A broker or registered nominee
12. Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district. or prison) that receives agricultural program payments

Give name and EIN of:
Tile owner 3 Legal entity • The corporation
The organization
The partnership The broker or nominee The public entity

'Ust first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person's number must be furnished.
'Circle the minor's name and furnish the minor's SSN.
3
You must show your individual name and you may also enter your business or "DBA" name on the second name line, You may use either your SSN or
EIN (tf you have one). If you are a sole proprietor, IRS encourages you to use your SSN.
' List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the llN of the personal representative or trustee unless the legal entity itse!f is not designated in the account title.) Also see Special rules regarding partnerships on page 1.
Note. If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.

Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons who must file information returns with the IRS to report interest, dividends, and certain other income paid to you, mortgage interest you paid, the acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA, or Archer MSA or HSA. The IRS uses the numbers for identification purposes and to help verify the accuracy of your tax return. The IRS may also provide this information to the Department of Justice for civil and criminal litigation, and to cities, states, the District of Columbia, and U.S. possessions to carry out their tax laws. We may also disclose this information to other countries under a tax treaty, to federal and state agencies to enforce federal nontax criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism.
You must provide your TIN whether or not you are required to file a tax return. Payers must generally withhold 28% of taxable
interest, dividend, and certain other payments to a payee who does not give a TIN to a payer. Certain penalties may also apply.

Case 2:05-cv-01978-FCD-PAN Document 4-4 Filed 12/06/2005 Page 1 of 6
EXHIBITC
Consent Decree
CIV. NO. 2:05-CV-01978 FCD PAN

Case 2:05-cv-01978-FCD-PAN Document 4-4 Filed 12/06/2005 Page 2 of 6

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
U.S. Equal Emplovment Opportunity Commission Plaintiff vs.
Carl Karther Enterprises dba Carl's Jr. Restaurants Defendant
CASE NUMBER 2:05-CV-01978 FCD PAN
CLAIM FORM

MUST BE POSTMARKED NO LATER THAN June 16, 2006

Instructions: Please complete this Claim Form only ifyou want to participate in the settlement

and claim your share of the settlement fund. The deadline for mailing this claim form is June 16,

~~

.

PART I-- PERSONAL INFORMATION Please legibly print the following information:

Name (first, middle and l a s t ) : - - - - - - - - - - ' - - - - - - - - -
Home Street A d d r e s s : - - - - - - - - - - - - - - ' - - - - - - -
City, State, Zip C o d e : - - - - - - : - - - - - - - - - - - - - - -
Home Telephone Number: L_) - - - - - - - - - -
Social Security N u m b e r : - - - - - - - - - - - - Please give us the name, address & telephone number of a relative or friend we can contact if we cannot reach you. (It is your responsibility to keep us informed ofany change of address. If we cannot locate you, you may lose your right to receive money!):

Friend/Relative Name (first, middle and last): - - ' - - - - - - - - - Home Street A d d r e s s : - - - - - - - - - - - - - - - - - - - City, State; iaip C o d e : - - - - - - - - - - - - - - - - - - Home Telephone Number: L_) - - - - - - - - - -

Case 2:05-cv-01978-FCD-PAN Document 4-4 Filed 12/06/2005 Page 3 of 6

PART II-- WORK BACKGROUND

1. Did you EVER work for Carl's Jr. Restaurant under a name other than the name listed above?

0 Yes

ONo

If you answeredyes,what name did you use? (first, middle and last):

2. Do you currently work for Carl's Jr. Restaurants?

0 Yes

ONo

If you answered yes, when did you begin working for Carl's Jr. Restaurant?

3. Have you ever worked at the Carl's Jr. Restaurant located at8401 Elk Grove Florin Road in Elk Grove, California (Restaurant #223)?

0 Yes

ONo.

4. If yes, please list the dates you worked at Carl'sJr. Restaurant located at 8401Elk Grove Florin Road in Elk Grove, California?

5. If you no longer work for Carl's Jr. Restaurants, why did you stop working there?

Case 2:05-cv-01978-FCD-PAN Document 4-4 Filed 12/06/2005 Page 4 of 6

RACIAL HARASSMENT

6. Do you believe you were subjected to racial harassment by James Teteak while working at the Carl's Jr. Restaurant located at 8401 Elk Grove Florin Road in Elk Grove,· California?

DYes

ONo

Please describe all incidents where you were subjected to racial harassment by James Teteak:

RETALIATION

7. Do you believe you suffered retaliation while employed at the Carl's Jr. Restaurant

located at 8401 Elk Grove Florin Road in Elk Grove, California for opposing or

protesting racial harassment by Jaines Teteak, or for assisting someone who complained

of racial harassment by James Teteak? ·

·

0 Yes

ONo

Please describe all incidents where you were subjected to retaliation for complaining about racial harassment by James Teteak.

· Please describe how these incidents ofretaliation affected your employment with Carl's Jr. Restaurant.

Case 2:05-cv-01978-FCD-PAN Document 4-4 Filed 12/06/2005 Page 5 of 6

DAMAGES

" .

. .

8. ~ Please state if the incidents of racial harassment and/or retaliation described above

affected you emotionally, and if so describe how.

9. Please state if the incidents of racial harassment and/or retaliation described above affected you financially, and if so describe how.

10. If you no longer work for Carl's Jr. Restaurants have you worked since that time? If so, please give dates of employment, and wages earned.

11. Did you make any complaints to Carl's Jr. Restaurants or any government agency regarding racial harassment by James Teteak or retaliation for complaining about racial harassment by James Teteak?

DYes

ONo

. If your answer is· yes, please describe, including the names of the people or agency to whom you complained and dates to the extent possible.

Case 2:05-cv-01978-FCD-PAN Document 4-4 Filed 12/06/2005 Page 6 of 6

12; Do you have any documents related to your claim of racial harassment or retaliation?

DYes

ONo

Ifyour answer is yes, please attach copies. You do not need to have documents to have a valid claim.

l, (print name)

' declare under penalty of perjury that the

information I have provided on this form pr any supplemental sheets submitted with this

form are true and correct to the best of my knowledge and if called upon to testify

regarding my statements I would do so as stated herein.

Signature

Date

MAILING INSTRUCTIONS

Please mail this completed Claim Form to the Equal Employment Opportunity .Commission at the address listed below. Your completed and signed claim form must be postmarked on or before June 16. 2006 or else you will forfeit your claim for a portion of the settlement fund.

EEOC v. CKE Claims U.S. Equal Employment Opportunity Commission 350 The Embarcadero, Suite 500 San Francisco, CA 94015 Telephone Number (415) 625-5651

•

Case 2:05-cv-01978-FCD-PAN Document 4-5 Filed 12/06/2005 Page 1 of 2
EXHIBITD
Consent Decree
CIV. NO. 2:05-CV-01978 FCD PAN

Case 2:05-cv-01978-FCD-PAN Document 4-5 Filed 12/06/2005 Page 2 of 2

WHAT IS RACIAL. HARASSMENT?

-- ......

Radial li~assme~t is·a form of dis~nation that ~iolate~.iederall~W,Titl~ Vll of th~ Ci~il ·

Rights Act of i 964. Racial harassment includes, but is not li~ed to, the following conduct: : .

.

. .

·. ·.·

' .

·..

(1) Verbal Conduct: Ethnic·slurs, racial "jokes,~ offensive or derogatory conimen~, · ·

or other verbal or physical conduct based on at.1 individual's r~ce/color.

· ·

(2) Visual conduct: Making raci~lgestures; displaying racially offensive objects,

pictures, cartoons, graffiti or posters.

(3) Physical conduct: Unwanted gesturing or threats based on race;·
(4) Other conduct: offensiveorunwapted racially.offensivetelephope c~lls, E-mails
or voice mail messages, notes or letters.

As settlement of the racial harassment and retaliation charges made against it, Carl.·

Karcher Enterprises dba Carl's Jr. Restaurants has agreed to pay a total of$255,000.00 in

damages. $150,000.00 ofthis amount has been designated to compensate certain employees who

suffered racial harassment by James Teteak orretaliation for complaining about racial

·

harassment by JamesTeteak during employment withCa,rlKarcbe~E,nterprisesbet\vee]l: .. February 23, 2001 and October 10, 2002 for its Carts Jr. Res~au~~nt1o:cat~d.at8401 Elk·

Grove Florin Road in Elk Grove, California. Ifyou believeyous\lf;fe'red racial harassment by

James Teteak wbileworking at Carl's Jr. Restaurant, you shmild fill'out the form enclosed with

this letter, or callone ofthe numbers. below for~ssistance. 'fo b"eeligibl~ for m~ney,your

.

f2o0r0m6!·must

be

received

by

the.·.EEO. C

orits

desigriated"age~t . . ' . . . .. .

rir

pQstiDar~ed . ..

by

Jun.e.

16,

WHAT IS RETALIATION?
Federallaw also prohibits retaliation against employees for having opposed or rejected racial harassment, or for having assisted someone who complained of racial harassment. Retaliation can include harassment and mistreatment, being given less work or being transferred to an undesirable job, disciplinary actions such as warnings or suspensions, and termination. The settlement of the racial harassment and retaliation charges against Carl Karcher Enterprises includes a fund to coropensate . individuals who suffered retaliation based on actions they took to oppose racial harassment by James Teteak. Ifyou believe you suffered retaliation for having opposed or rejected racial harassment by James Teteak, or for assisting a person who complained of racial harassment by James Teteak, you should fill out the form enclosed with this letter, or call one of the numbers below for assistance. To be eligible for money, your form must be received by the EEOC or its designated agent or postmarked by June 16, 2006! Call for the location of the EEOC office or agent nearest you.
FOR MORE INFORMATION, CALL TOLL FREE: l-800-669-4000 .

Case 2:05-cv-01978-FCD-PAN Document 4-6 Filed 12/06/2005 Page 1 of 10
EXHIBITE
Consent Decree
CIV. NO. 2:05-CV-01978 FCD PAN

Case 2:05-cv-01978-FCD-PAN Document 4-6 Filed 12/06/2005 Page 2 of 10

RELEASE AGREEMENT
Tills Release Agreement ("Release Agreement") is made and entered into by and between ("Eligible Claimant") and Carl Karcher Enterprises, Inc.
("CKE"). (Eligible Claimant and CKE are collectively referred to herein as the "Parties").

I.
GENERAL RECITALS Tills Release Agreement is made for the following purposes and with reference to the following facts:

1.1 Purpose The purpose of this Release Agreement is to settle and compromise al1 disputes

and controversies existing between the Parties hereto, including, but not limited to any

and all claims that are raised or might have been raised by Eligible Claimant against CKE

relating to racial harassment by James Teteak and/or retaliation for complaining about

such racial harassment. This Release Agreement supplements the Consent Decree

entered into by the Equal Employment Opportunity Commission ("EEOC") and CKE,

which is necessary to properly resolve

and settle the complaint for racial

harassment and retaliation filed by the Equal

Employment

Opportunity

Commission, Case Number 2:05-CV-01978 FCD PAN. Pursuant to sections V(3)(B)

through (F) of the Consent Decree, Eligible Claimant has been determined by the EEOC

to be entitled to payment of _ _ _ _ from the Settlement Fund established pursuant to

the Consent Decree in that Eligible Claimant has asserted that he/she was subjected to

harassment by James Teteak and/or subjected to retaliation for complaining about such

harassment. The consent decree entered into in Case No. 2:05-CV-01978 FCD PAN, a

525.00140/543960vl

Case 2:05-cv-01978-FCD-PAN Document 4-6 Filed 12/06/2005 Page 3 of 10
copy of which is attached as Exhibit "1" to this Release Agreement, is referred to as the "Consent Decree".
II. SETTLEMENT OBLIGATIONS 2.1 Obligations of CKE A. Payment to Eligible Claimant Subject to Eligible Claimant's compliance with the terms of this Release Agreement, CKE will pay to Eligible Claimant the amount determined bythe EEOC under Section V(3)(F) of the Consent Decree to be the Final Gross Settlement Amount due to Eligible Claimant,
$_ _ _ __ This is the total amount that CKE will pay to Eligible Claimant.
1) Time and Form of Payments to Eligible Claimant Within fourteen (14) days of CKE's receipt of the Release Agreement and W-9 form relating to payment from the Settlement Fund executed by Eligible Claimant, CKE shall forward a check drawn in the Final Gross Settlement Amount to Eligible Claimant at the address of the Eligible Claimant provided by the EEOC.
2) CKE shall prepare and distribute I 099 tax reporting forms to Eligible Claimant and shall make appropriate reports to the Internal Revenue Service and other tax authorities in accordance with the information provided by Eligible Claimant on the Internal Revenue Service W-9

·525.00J40/543960vl

2

Case 2:05-cv-01978-FCD-PAN Document 4-6 Filed 12/06/2005 Page 4 of 10

forms. Eligible Claimant's 1099 form shall be mailed to Eligible Claimant.
B. Non-Admission of Liability or Wrongdoing. CKE and the Releasees have denied and continue to deny any violation of any law, contract or public policy or any other wrongdoing whatsoever and any liability to Eligible Claimant. CKE and the Releasees specifically deny and disclaim any liability to or wrongful acts against Eligible Claimant or any other person. This Release Agreement shall not in any way be construed as an admission by CKE or the Releasees of any liability or wrongdoing, whatsoever, or as an admission by CKE or the Releasees that they have acted wrongfully in any way with respect to Eligible Claimant or any other .person, or as an admission by CKE or the Releasees that Eligible Claimant or any other person has any rights whatsoever against CKE or the Releasees.
2.2 Obligations of Eligible Claimant A. Provision of Release and W-9 Forms - Upon receipt of notification from the Equal Employment Opportunity Commission, of the Notification of the Final Gross Settlement Amount, this Release Agreement and the Internal Revenue Service W-9 form pursuant to Section V(3)(F) of the Consent Decree, Eligible Claimant shall forward a copy of this Release Agreement and a completed Internal Revenue Service W-9 form executed by Eligible Claimant to counsel for CKE.
B. Covenant Not to Sue Eligible Claimant agrees that he/she will not file, nor permit to be filed on his/her behalf, or assist in the prosecution of, any claim,

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charge, complaint, lawsuit or legal action or other process of any kind or nature whatsoever, with any court, agency, board, panel, department, organization or other entity concerning any claim which is released pursuant to this Release Agreement.

C. Indemnification - The Parties agree that the payments set forth in section 2.1 of this Agreement constitute a compromise of all claims relating to harassment by James Teteak and/or retaliation for complaining about harassment by Teteak that Eligible Claimant has against CKE and the other Releasees. Eligible Claimant acknowledges that he/she will seek the further advise and counsel of his/her tax attorneys and/or accountants, and that the obligation to accurately report and eventually pay all appropriate taxes on all of the settlement amounts is his/hers alone, notwithstanding the allocation herein. In the event that some or all of the payment set forth in section 2.1 is asserted to be classified as taxable income by a federal, state or other taxing authority, Eligible Claimant covenants and agrees that he/she will be solely liable for any and all taxes, interests and penalties payable on said amount and that Eligible Claimant shall indemnify and hold harmless CKE and the Releasees from any claims, demands, actions, causes of action, attorneys fees, costs penalties, interest and/or expenses arising out of or in any way related to the tax treatment of any or all of the payments set forth in sections 2.1 ofthis Agreement.

D. Confidentiality Except as specifically authorized by a term of this Release
Agreement, Eligible Claimant hereby acknowledges that the amount of the payment under this Release Agreement should remain confidential.

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Notwithstanding this provision, Eligible Claimant may disclose the amount or terms of this settlement to her attorneys, accountants and/or tax advisors, and to governmental taxing authorities, as may be necessary for Eligible Claimant to comply with applicable law. In addition, this Confidentiality Provision shall not be construed to prohibit Eligible Claimant from complying with a lawful court order or process requiring disclosure, written or oral, nor shall Eligible Claimant be prohibited from revealing or disclosing any fact or circumstance which is a matter of public record and is contained in either the complaint filed by the EEOC, in the Consent Decree entered into by the EEOC and CKE and entered by the court, or in the press release issued by the EEOC announcing the resolution of the case.
III. GENERAL RELEASE AND WAIVER OF CLAIMS 3.1 Full and Complete Release by Eligible Claimant For and in consideration of the obligations above described, Eligible Claimant, for him/herself, and on behalf of his/her agents, attorneys, representatives, successors and assigns, forever releases and discharges CKE and, as applicable, its ovvners, shareholders, partners, respective agents, representatives, successors, assigns, employees, officers, directors, attorneys, parent, subsidiary and affiliated entities ("Releasees") from any and all claims, demands, debts, liabilities, attorneys' fees, accounts, obligations, costs, expenses, liens, actions, causes of action (at law, in equity, or otherwise), rights, rights of action, rights of indemnity (legal or equitable), rights to subrogation, rights to contribution and remedies of any nature whatsoever, knovvn or unknovvn (except for those arising as a result of a breach of any

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provision of this Release Agreement), relating to harassment of Eligible Claimant by James Teteak and/or retaliation for complaining about harassment by James Teteak.
3.2 Knowing and Voluntary Waiver of Unknown Claims Eligible Claimant understands that the releases provided for in this Agreement extend to all claims whether or not claimed or suspected, up to and including the date of execution hereof, and constitute a waiver of each and all of the provisions of California Civil Code section 1542, which reads as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
Eligible Claimant hereby acknowledges that the effect and import of this provision has been fully explained to him/her and that he/she is aware of its contents and legal effect. Eligible Claimant expressly waives any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States, or principle or common law, which is similar, comparable, or equivalent to California Civil Code section 1542.

IV. MISCELLANEOUS PROVISIONS
4.1 Waiver of Undue Influence This Agreement is executed voluntarily and without duress
or undue influence on the part of or on behalf of either of the Parties, or of any other

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person, firm, or other entity. Eligible Claimant acknowledges and agrees that he/she has not in any way relied on any silence by CKE or Releasees in entering into this Agreement or the Consent Decree. Each party to this Agreement further acknowledges and agrees that they have all the information they desire before entering into this Agreement, and that they had the opportunity to consult with an attorney of their choosing prior to entering into this agreement.
4.2 Entire Agreement This Agreement contains the sole and entire agreement and understanding of the Parties with respect to the entire subject matter hereof, and any and all prior discussions, negotiations, commitments and understandings related hereto are hereby merged herein. No representations, oral or otherwise, express or implied, other than those contained herein have been made by any party hereto. No other agreement not specifically ·referred to herein or contained herein oral 9r otherwise shall be deemed to exist or to bind any of the parties hereto.
4.3 Further Necessary Actions All Parties hereto agree, on the demand of the other party hereto, to execute or deliver any instrument, furnish any information or perform any other act reasonably necessary to carry out the provisions of this Agreement without undue delay or expense.
4.4 Severability Should any provision ofthis Agreement be declared or determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining parts, terms or provisions shall not be affected thereby and said illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this Agreement. In lieu thereof, there shall be added a provision

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as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
4.5 Successors This Agreement shall bind and inure to the benefit of the Parties hereto and to their respective successors, assigns, legatees, heirs, and personal representatives, separately and collectively.
4.6 Governing Law This Agreement is entered into pursuant to the laws of the State of California and shall be interpreted pursuant to those laws.
4.7 Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute together one and the same instrument. A legible executed facsimile may be used in lieu of an original.
4.8 Authority Each party entering into this Agreement warrants that they have the authority to enter into this Agreement.
4.9 Waiver of Costs and Attorneys' Fees It is expressly understood and agreed that each party shall bear its own attorneys' fees and costs.
4.10 Ownership of Claims Eligible Claimant represents and agrees that he/she has not signed, assigned, or transferred, or attempted to assign or transfer to any person or entity, any of the claims he/she is releasing in this Release Agreement.

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ELIGIBLE CLAIMANT ACKNOWLEDGES THAT HE/SHE HAS READ TinS RELEASE . AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT WITH
THE INTENTION OF RELINQillSHING ALL CLAIMS AND RIGHTS RELEASED BY TinS AGREEMENT, KNOWN AND UNKNOWN, OTHER THAN THOSE THAT ARISE AS A RESULT OF TinS AGREEMENT.

IN WITNESS WHEREOF, the parties have executed this General Release and Settlement Agreement on the dates set forth.

DATED: - - - - - -

Carl Karcher Enterprises, Inc.

DATED: _ _ _ _ __

Charles A. Seigel Senior Vice President and General Counsel
Eligible Claimant

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 Live 2.5 CM/ECF - U.S. District Court for Eastern California - Docket ... https://ecf.caed.uscourts.gov/cgi-bin/DktRpt.pl?971182041342392-L_9...
CIVIL, CLOSED
U.S. District Court Eastern District of California - Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:05-cv-01978-FCD-PAN

Equal Employment Opportunity Commission v. Carl Karcher Enterprises dba Carl's Jr. Restaurant Assigned to: Judge Frank C. Damrell, Jr Referred to: Magistrate Judge Peter A. Nowinski Cause: 28:451 Employment Discrimination

Date Filed: 09/29/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Marcia Lynne Mitchell U.S. Equal Employment Opportunity Commission 350 The Embarcadero, Suite 500 San Francisco, CA 94105 (415) 625-5651 Fax: (415) 625-5657 Email: Marcia.Mitchell@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant Carl Karcher Enterprises dba Carl's Jr. Restaurant

represented by Robert L. Wenzel Atkinson Andelson Loya Ruud & Romo 17871 Park Plaza Drive Suite 200 Cerritos, CA 90703 US 562-653-3200 Email: rwenzel@aalrr.com ATTORNEY TO BE NOTICED

Date Filed 09/29/2005 09/29/2005

#

Docket Text

1 COMPLAINT against Carl Karcher Enterprises dba Carl's Jr. Restaurant, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Mitchell, Marcia) (Entered: 09/29/2005)
2 SUMMONS ISSUED as to *Carl Karcher Enterprises dba Carl's Jr. Restaurant* with answer to complaint due within *20* days. Attorney *Equal Employment Opportunity Commission* *San Francisco District Office* *350 The Embarcaderio, Suite 500* *San Francisco, CA 94105*. (Sherman, T) (Entered: 09/29/2005)

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Live 2.5 CM/ECF - U.S. District Court for Eastern California - Docket ... https://ecf.caed.uscourts.gov/cgi-bin/DktRpt.pl?971182041342392-L_9...

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3 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Forms # 2 VDRP Forms) (Sherman, T) (Entered: 09/29/2005)
4 Consent Decree by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Mitchell, Marcia) Modified on 12/13/2005 (Price, M). (Entered: 12/06/2005)
5 PROPOSED ORDER re 4 Proposed Order by Equal Employment Opportunity Commission. (Mitchell, Marcia) (Entered: 12/13/2005)
6 ORDER signed by Judge Frank C. Damrell Jr. on 12/13/05. re 4 Proposed Order filed by Equal Employment Opportunity Commission - GRANTED. Consent decree as filed on 12/6/05 is ADOPTED. ***Civil Case Terminated. CASE CLOSED (Price, M) (Entered: 12/13/2005)
8 DECLARATION of Paul B. Pressnall in compliance of Consent Decree. (Attachments: # 1 Declaration Signature page to Decl of Compliance)(Wenzel, Robert) (Entered: 03/29/2006)

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