Case 5:05-cv-03615-HRL Document 1 Filed 09/08/2009". L, eage 1 of 6

1 WILLIAM R. TAMAYO - #084965 (CA) JONATHAN T. PECK -- #12303 (VA)
2 EVANGELINA FIERRO HERNANDEZ --
EQUAL EMPLOYMENT OPPORTUNITY 3 COMMISSION
San Francisco District Office
4 350 The Embarcadero, Suite 500
San Francisco, California 94105
5 Telephone: (415) 625-5622 Facsimile: (415) 625-5657
6
Attorneys for Plaintiff Equal Employment Opportunity Commission
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

11 COMMISSIoN,EQUAL EMPLOYMENT OPPORTUNI~
12 Plaintiff,
13
14 HARMAN - CHIU, INC., d/b/a/
15 KFC / TACO BELL,
16 Defendant.
17

COMPLAINT Civil Rights - Employment Discrimination
DEMAND FOR JURY TRIAL

18

NATURE OF THE ACTION

19

This action is brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title

20 VII") and Title I of the Civil Rights Act of 1991 to correct unlawful employment

2~ practices on the basis of sex and retaliation and to provide appropriate relief to

22 Charging Party Sandra Vargas ("Charging Party Vargas") and other similarly situated

23 female employees who were adversely affected by such practices. Defendant Harman -

24 Chiu, Inc., d/b/a KFC/Taco Bell ("Harman - Chiu’) subjected the Charging Party and

25 similarly situated female employees to unlawful harassment based on their sex, created

26 a hostile work environment based on their sex, and subjected them to retaliation for

27 engaging in protected activity under Title VII, which caused the constructive discharge

28 of many of these females.

COMPLAINT FOR DISCRIMINATION

Page 1

Case 5:05-cv-03615-HRL Document 1 Filed 09/08/2005 Page 2 of 6

1

JURISDICTION AND VENUE

2

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §8451, 1331,

3 1337, 1343 and 1345. This action is authorized and instituted pursuant to §706(f)(1) and

4 (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(1) and

5 (3) ("Title VII") and §102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a.

6

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

7 committed within the jurisdiction of the United States District Court for the Northern

8 District of California, San Jose division.

9

INTRADISTRICT ASSIGNMENT

10

3. This action is appropriate for assignment to San Jose because the unlawful

11 employment practices alleged were and are being committed within Santa Clara

12 County, the employment record relevant to the unlawful practices are located in Santa

13 Clara County, and because Defendant’s principal place of business is in Santa Clara

14 County.

15

PARTIES

16

4. Plaintiff, the Equal Employment Opportunity Commission

17 ("Commission") is the agency of the United States of America charged with the

18 administration, interpretation and enforcement of Title VII, and is expressly authorized

19 to bring tlxis action by §706(f)(1) and (3) of TitIe VII, §2000-e(f)(1) and (3).

20

5. Defendant Harman - Chiu is a California company, doing business in the

21 State of California, in the County of San Joaquin, and has continuously had at least 15

22 employees.

23

6. At all relevant times, Defendant Harman - Chiu has continuously been an

24 employer engaged in an industry affecting commerce, within the meaning of Section

25 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000-e(b), (g) and (h)..

26

7. At all relevant times, Defendant Harman - Chiu was the sole empIoyer of

27 Charging Party and similarly situated female employees for purposes of Title VII 28
liability.

COMPLAINT FOR DISCRIMINATION

Page 2

Case 5:05-cv-03615-HRL Document 1 Filed 09/08/2005 Page 3 of 6
,~,~

1

STATEMENT OF CLAIMS

CLAIM FOR RELIEF 2

3 VioIation of Title VII of Civil Rights Act : Sex Discrimination, Sexual Harassment

4

8. More than thirty days prior to the institution of this lawsuit, Charging

5 Party filed her charge with Plaintiff Commission alleging violations of Title VII by

6 Defendant. All conditions precedent to the institution of this lawsuit have been

7 fulfilled.

8

9. Since at least August 2002, Defendant has engaged in unlawful practices

9 of sex discrimination in violation §703(a) of Title VII, 42 U.S.C. §2000e-2(a) by subjecting

10 the Charging Party and similarly situated female employees to a sexually hostile,

11 abusive, intimidating and offensive work environment which culminated in tangible

12 employment actions.

13

10. The effect of the actions complained of in Paragraph 9 above has been to

14 deprive the Charging Party and similarly situated female employees of equal

15 employment opportunities and otherwise adversely affect their status as employees

16 because of their sex.

17

11. The unlawful employment practices complained of in Paragraph 9 above

18 were intentional.

19

12. The unlawful employment practices complained of in Paragraph 9 above

20 were done with malice or with reckless indifference to the federally protected rights of

21 the Charging Party and similarly situated female employees.

22

Violation of Title VII of Civil Rights Act : Retaliation

23

13. More than thirty days prior to the institution of this lawsuit, Charging

24 Party filed her charge with Plaintiff Commission, alleging violations of Title VII by

25 Defendant. All conditions precedent to the institution of this lawsuit have been

26 fulfilled.

27

14. Since at least September, 2002 Defendant has engaged in unlawful

28 practices of retaliation, in violation §704(a) of Title VII, 42 U.S.C. §2000e-3(a), by

subjecting Charging Party and similarly situated female employees to adverse actions

COMPLAINT FOR DISCRIMINATION

Page 3

Case 5:05-cv-03615-HRL Document 1 Filed 09/08/2005 Page 4 of 6

1 for engaging in protected activity, including reducing their work hours and ultimately

2 wrongfully discharging them.

3

15. The effect of the actions complained of in Paragraph 14 above has been to

4 deprive the Charging Party and similarly situated female employees of equal

5 employment opportunities and has otherwise adversely affected their status as

6 employees because of their protected activity.

7

16. The unlawful employment practices complained of in Paragraph 14 above

8 were intentional.

9

17. The unlawful employment practices complained of in Paragraph 14 above

10 were done with malice or with reckless indifference to the federally protected rights of

11 the Charging Party and similarly situated female employees.

12

PRAYER FOR RELIEF

13

Wherefore, the Commission respectfully requests that this Court:

14

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

15 assigns, and all persons acting in concert or participation with Defendant, from

16 engaging in discrimination against its employees including harassment based on sex

17 and retaliation.

18

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

19 programs which prohibit harassment based on sex and retaliation and which eradicate

20 the effects of its unlawful employment practices.

21

C. Order Defendant to make whole Charging Party and similarly situated

22 female employees by providing appropriate back pay and benefits with prejudgment

23 interest, and other affirmative relief necessary to eradicate the effects of its unlawful

24 employment practices, including but not limited to reinstatement and/or front pay and

25 other appropriate relief to be determined at trial.

26

D. Order Defendant to make whole Charging Party and similarly situated

27 female employees harmed by providing compensation for past and future pecuniary

28 losses resulting from the unlawful employment practices complained of above,

COMPLAINT FOR DISCRIMINATION

Page 4

Case 5:05-cv-03615-HRL Document 1 Filed 09/08/2005 Page 5 of 6

1 including but not limited to such out-of-pocket expenses as medical care necessitated by

2 Defendant’s unlawful conduct, in amounts to be determined at trial.

3

E. Order Defendant to make whole Charging Party and similarly situated

4 female employees harmed by providing compensation for past and future

5 nonpecuniary losses resulting from the unlawful practices complained of above

6 including, but not limited to emotional pain and suffering, inconvenience, loss of

7 enjoyment of li£e and humiliation, in amounts to be determined at trial.

8

F. Order Defendant to pay Charging Party and similarly situated female

9 employees harmed by providing punitive damages for the malicious and reckless

10 conduct described above, in amounts to be determined at trial.

11

G. Grant such further relief as the Court may deem just and proper in the

12 public interest.

13

H. Award the Commission its costs of this action.

14

DEMAND FOR JURY TRIAL

15

Pursuant to the provisions of Federal Rule of Civil Procedure 38(b), Plaintiff

16 hereby demands a jury trial.

17

James L. Lee

Deputy General Counsel

18

Gwendolyn Young Reams

19

Associate General Counsel

20

Equal Employment Opportunity

Commission

21

1801 L Street, N.W.

Washington, DC 20507 /’3

22

23

24

25

26

27 Date: ~¢-~. ~’28

,2005

\ JO~qATHAN T. PECK xC~@ervisory Trial Attorney

COMPLAINT FOR DISCRIMINATION

Page 5

Case 5:05-cv-03615-HRL Document 1 Filed 09/08/2005 Page 6 of 6

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

,2005

COMPLAINT FOR DISCRIMINATION

Senior Trial Attorney Equal Em~ployment Opportunity Commission San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, California 94105
Page 6

 
 Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 1 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 VIRGINIA VILLEGAS, State Bar #179062

JENNIFER REISCH, State Bar #223671

2 TALAMANTES/VILLEGAS/CARRERA, LLP

1550 Bryant Street, Suite 725

3 San Francisco, CA 94103

Telephone: (415) 861-9600

4

Facsimile: (415) 861-9622

5 Attorneys for Plaintiffs/Intervenors Sandra Vargas, Marivel Hernandez, and Esther
6 Hernandez

7

8

9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

San Jose Division

13 EQUAL EMPLOYMENT
14 OPPORTUNITIES COMMISSION,

Case No.: C 05 3615 JF

15

Plaintiff,

16 SANDRA VARGAS, ESTHER HERNANDEZ, and MARIVEL
17 HERNANDEZ,

18

Plaintiffs/Intervenors,

COMPLAINT IN INTERVENTION FOR UNLAWFUL DISCRIMINATION, HARASSMENT, AND RETALIATION
DEMAND FOR JURY TRIAL

19 v.

20 HARMAN-CHIU, INC., d/b/a/ KFC/TACO BELL, HARMAN
21 MANAGEMENT CORPORATION, JORGE GARCIA, and DOES 1-10,
22 inclusive,

23 Defendants.

24 ///
25 ///
26 ///
27 ///
28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

1

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 2 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1

NATURE OF THE ACTION

2

1. Defendant HARMAN MANAGEMENT CORPORATION, (“Harman

3 Management”) is the oldest and one of the largest KFC/Taco Bell franchises in the United States.

4 Within the Northern District of California alone, Harman Management owns and/or operates well

5 over 100 KFC, Taco Bell, A&W, and Pizza Hut franchise restaurants, one of which is Defendant

6 HARMAN-CHIU, INC., d/b/a/ KFC/TACO BELL, Harman Management Corporation store #203

7 (“Harman-Chiu”), located in Sunnyvale, California.

8

2. This action is brought by current and former Harman-Chiu/Harman Management

9 employees SANDRA VARGAS, ESTHER HERNANDEZ, and MARIVEL HERNANDEZ

10 (collectively “Plaintiffs/Intervenors”) pursuant to Title VII of the Civil Rights Act of 1964, 42

11 U.S.C. §§ 2000e et seq. (“Title VII”), Title I of the Civil Rights Act of 1991, and the California

12 Fair Employment and Housing Act, California Government Code §§ 12940 et seq. (“the FEHA”)

13 against Defendants HARMAN-CHIU, INC., d/b/a/ KFC/TACO BELL, HARMAN

14 MANAGEMENT CORPORATION, JORGE GARCIA, and DOES 1-10, inclusive (collectively

15 “Defendants”). Defendants subjected Plaintiffs/Intervenors to unlawful harassment based on their

16 sex, created a hostile work environment based on their sex, failed to prevent discrimination and

17 harassment against them based on their sex, and subjected them to retaliation for engaging in

18 protected activity under Title VII and for opposing discriminatory practices under the FEHA,

19 which caused the constructive discharge of Plaintiffs/Intervenors. This action seeks to correct

20 Defendants’ unlawful employment practices and to provide appropriate monetary relief, including

21 punitive damages, to Plaintiffs/Intervenors, who have been affected by these practices.

22

JURISDICTION AND VENUE

23

3. Plaintiffs/Intervenors’ claims arise under Title VII of the Civil Rights Act of 1964,

24 42 U.S.C. §§ 2000(e), et seq. This Court has jurisdiction over this matter pursuant to 28 U.S.C.

25 §§ 1331, 1337, and 1343(a)(4). This Court has supplemental jurisdiction over

26 Plaintiffs/Intervenors’ claims brought under the FEHA pursuant to 28 U.S.C. § 1367. Injunctive

27 and declaratory relief, damages and other appropriate legal and equitable relief are sought

28 pursuant to 42 U.S.C. § 2000e(f) and (g), as amended, and applicable provisions of the FEHA.

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

2

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 3 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 Jurisdiction is proper because the employment practices that Plaintiffs/Intervenors allege to be

2 unlawful were and now being committed in California, within the jurisdiction of the United States

3 District Court for the Northern District of California, San Jose Division.

4

4. Venue is proper in this district pursuant to 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §

5 1391(b) & (c). Plaintiffs/Intervenors’ claims all arose in California. Many of the acts alleged in

6 this Complaint occurred in this District and gave rise to the claims alleged.

7

INTRADISTRICT ASSIGNMENT

8

5. This action is appropriate for assignment to San Jose because the unlawful

9 employment practices alleged herein were and are being committed within Santa Clara County,

10 the employment records relevant to the unlawful practices alleged herein are located in Santa

11 Clara County, and because Defendant Harman-Chiu’s and Defendant Harman Management’s

12 principal places of business are both located in Santa Clara County.

13

PARTIES

14

6. Plaintiff/Intervenor Sandra Vargas (“Plaintiff Vargas”) was employed by

15 Defendants until January 2003. Plaintiff Vargas is and at all times relevant herein has been a

16 resident of the State of California, County of Santa Clara. Plaintiff Vargas is and at all times

17 material hereto has been a member of a protected group under California Government Code

18 section 12940(a) based on her sex (female), and Title VII, as amended, 42 U.S.C. §2000e-5 (f) (1)

19 and (3), and section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981(a).

20

7. Plaintiff/Intervenor Esther Hernandez (“Plaintiff E. Hernandez”) is currently

21 employed at one of the franchise restaurants owned and/or operated by Defendant Harman

22 Management in Oakland, California (Harman-Trisler, Harman Management Corporation store

23 #291.) Since November 1996, Plaintiff E. Hernandez has worked at various Harman

24 Management-owned and/or -operated franchise restaurants in Northern California, including the

25 Harman-Chiu franchise, where she worked until approximately May 2003. Plaintiff E.

26 Hernandez is and at all times relevant herein has been a resident of the State of California, County

27 of Santa Clara. Plaintiff E. Hernandez is and at all times material hereto has been a member of a

28 protected group under California Government Code Section 12940(a) based on her sex (female),

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

3

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 4 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 and Title VII, as amended, 42 U.S.C. §2000e-5 (f) (1) and (3), and section 102 of the Civil Rights

2 Act of 1991, 42 U.S.C. §1981(a).

3

8. Plaintiff/Intervenor Marivel Hernandez (“Plaintiff M. Hernandez”) was employed

4 by Defendants to work at the Harman-Chiu franchise until September 2003. Ms. Hernandez is

5 and was at all times relevant herein a resident of the State of California, County of Santa Clara.

6 Ms. Hernandez is and at all times material hereto has been a member of a protected group under

7 California Government Code Section 12940(a) based on her sex (female), and Title VII, as

8 amended, 42 U.S.C. §2000e-5 (f) (1) and (3), and Section 102 of the Civil Rights Act of 1991, 42

9 U.S.C. §1981(a).

10

9. Plaintiffs/Intervenors are informed and believe that Defendant Harman-Chiu, Inc.,

11 d/b/a/ KFC-Taco Bell (“Defendant Harman-Chiu”) is and was at all relevant times a corporation

12 organized and existing under the laws of the State of California, with its principal business

13 operation located at 1695 Hollenbeck Avenue, Sunnyvale, California, in the County of Santa

14 Clara. Defendant Harman-Chiu’s registered business address and agent for service of process are

15 located at 199 First Street, Suite 212, Los Altos, California, in the County of Santa Clara.

16

10. Plaintiffs/Intervenors are informed and believe, and thereon allege, that Defendant

17 Harman-Chiu regularly employs five (5) or more persons, and accordingly is an employer within

18 the meaning of Cal. Gov’t. Code §§ 12926(d) and 12940.

19

11. Plaintiffs/Intervenors are informed and believe, and thereon allege that, at all times

20 relevant hereto, Defendant Harman-Chiu regularly has employed fifteen (15) or more persons for

21 each working day in each of twenty (20) or more calendar weeks in the current and preceding

22 calendar years, and accordingly is an employer engaged in an industry affecting commerce,

23 within the meaning of 42 U.S.C. § 2000e(b), (g), and (h).

24

12. Plaintiffs/Intervenors are informed and believe that Defendant Harman

25 Management Corporation (“Defendant Harman Management”) is a Utah corporation that, at all

26 relevant times, has done and continues to do business within the State of California. On

27 information and belief, Plaintiffs/Intervenors allege that Defendant Harman Management owns

28 and/or operates more than 100 KFC/Taco Bell, A&W, and Pizza Hut franchises located

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

4

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 5 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 throughout Northern and Central California. Defendant Harman Management’s principal place of

2 business in California is located at 199 First Street, Suite 212, Los Altos, California, in Santa

3 Clara County.

4

13. Plaintiffs/Intervenors are informed and believe, and thereon allege, that Defendant

5 Harman Management regularly employs five (5) or more persons, and accordingly is an employer

6 within the meaning of Cal. Gov’t. Code §§ 12926(d) and 12940.

7

14. Plaintiffs/Intervenors are informed and believe, and thereon allege that, at all times

8 relevant hereto, Defendant Harman Management regularly has employed fifteen (15) or more

9 persons for each working day in each of twenty (20) or more calendar weeks in the current and

10 preceding calendar years, and accordingly is an employer engaged in an industry affecting

11 commerce, within the meaning of 42 U.S.C. § 2000e(b), (g), and (h).

12

15. Plaintiff/Intervenors are informed and believe, and thereon allege that, at all times

13 relevant hereto, Defendant Jorge Garcia is resident of the State of California. From on or about

14 August 2002, he worked for Defendants Harman-Chiu, Inc. and Harman Management

15 Corporation as a manager at the Harman-Chiu Restaurant located at 1695 Hollenbeck Avenue,

16 Sunnyvale, California, in the County of Santa Clara.

17

16. Plaintiffs/Intervenors are ignorant of the true names and capacities of Defendants

18 sued herein as Does 1 through 10, inclusive, and therefore sue these defendants by fictitious

19 names. Plaintiffs will amend this complaint to allege their true names and capacities when

20 ascertained. Plaintiffs are informed and believe and thereon allege that each of the named and

21 fictitiously named Defendants is responsible in some manner for the occurrences herein alleged

22 and that Plaintiffs’ damages were proximately caused by said Defendants.

23

17. Plaintiffs/Intervenors are informed and believe that at all times herein mentioned,

24 Defendants, whether or not specifically identified or designated herein as a Doe, and each of

25 them, were the agents, employees, servants, partners, independent contractors, joint venturers,

26 joint employers, alter egos, and/or participants with all other Defendants, and with each other, and

27 in doing the things hereinafter mentioned, were agents, employees, servants, partners, joint

28 venturers, joint employers, and/or alter egos acting with the consent, permission and ratification

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

5

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 6 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 of the co-Defendants, and each of them. At all relevant times, each of the Defendants was acting

2 within the course and scope of his or her agency and employment.

3

EXHAUSTION OF ADMINISTRATIVE REMEDIES

4

18.

On or around September 25, 2003, Plaintiff/Intervenor Vargas filed charges of

5 discrimination with the Equal Employment Opportunity Commission (“EEOC”) against

6

Defendants Harman-Chiu and Harman Management. On or about March 30, 2004, Ms. Vargas

7

submitted her second amended EEOC charge, adding class allegations. Plaintiff/Intervenor E.

8

Hernandez filed her charges of discrimination against Defendants with the California

9

Department of Fair Employment and Housing (“DFEH”) on or about April 12, 2004.

10

Plaintiff/Intervenor M. Hernandez filed her charges of discrimination with the DFEH on or

11

about June 17, 2004. All of the charges filed with the DFEH were simultaneously filed with

12

the EEOC pursuant to the terms of a work sharing agreement between the two agencies. The

13

statute of limitations on Plaintiffs/Intervenors’ claims was tolled during the EEOC’s

14

investigation of these charges. See Downs v. Department of Water and Power, 58 Cal.App.4th

15

1093 (1997). Thus, this complaint is timely filed.

16

19.

On or about November 29, 2004, the EEOC issued a Letter of Determination

finding that Defendants had discriminated against Plaintiff Vargas and a class of female 17

employees by subjecting Plaintiff Vargas and a class of female employees to a hostile work 18

environment because of their sex and retaliating against Ms. Vargas and a class of female 19

employees for engaging in protected activities, in violation of Title VII. In February 2005, the 20

EEOC determined that efforts at reconciliation between the parties had not been successful and 21

transferred the charges to the Regional Attorney, San Francisco District Office, for review to 22
determine whether the EEOC would bring a civil action in federal district court based on the 23
charges. The EEOC filed suit in the instant matter on September 8, 2005.

24

20.

Plaintiffs/Intervenors have timely filed this action. They have complied with all

25 administrative prerequisites and fulfilled all conditions precedent to be able to bring this

26 lawsuit.

27 / / / /

28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

6

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 7 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1

FACTS

2

Plaintiff/Intervenor Sandra Vargas

3

21. Plaintiff/Intervenor Sandra Vargas (“Plaintiff Vargas”) began working for

4 Defendants at the Harman-Chiu restaurant in approximately November 2002. Plaintiff Vargas

5 worked as a cashier and reported directly to Defendants’ managerial employee, Jorge Garcia

6 (hereinafter “GARCIA”).

7

22. GARCIA is and has been employed by Defendants since at least August 2002,

8 and, on information and belief, has held and continues to hold the position of Manager of the

9 Harman-Chiu restaurant.

10

23. Within the first weeks of Plaintiff Vargas’ employment at the Harman-Chiu

11 restaurant, GARCIA commenced a continual course of conduct wherein he sexually harassed

12 Plaintiff Vargas. This harassment was severe and pervasive enough to alter her working

13 conditions and create a hostile work environment. Plaintiff Vargas was repeatedly forced to

14 endure offensive language of a sexual nature, and intimidating and unwelcome sexual overtures.

15 Among other acts, GARCIA grabbed Vargas’ buttocks, blew into her ear, and repeatedly

16 commented about her body shape.

17

24. GARCIA’s sexual harassment of Plaintiff Vargas was pervasive and was designed

18 to compel Plaintiff Vargas to submit to his sexual advances, rendering Plaintiff Vargas’

19 submission to his sexual advances a term or condition of her employment at Harman-Chiu.

20 GARCIA’s sexual harassment of Plaintiff Vargas thus substantially affected the terms and

21 conditions of her employment.

22

25. GARCIA’s sexual harassment of Plaintiff Vargas continued through September

23 2003, even after Plaintiff Vargas repeatedly made clear that his behavior was unwelcome and

24 made her feel uncomfortable, and that she wanted the harassment to stop.

25

26. Upon complaining of GARCIA’s sexual harassment to the agents, employees,

26 and/or servants of Defendants, Plaintiff Vargas was subjected to retaliation in the form of

27 reduction in her work hours, denial of promotion opportunities, verbal harassment by co-workers,

28 who accused her of causing problems for GARCIA, and being ostracized by GARCIA and

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

7

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 8 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 Plaintiff Vargas’ co-workers.

2

27. Despite Plaintiff Vargas’ complaints about GARCIA’s conduct, Defendants

3 Harman-Chiu and Harman Management failed and refused to effectively investigate or terminate

4 the course of repetitively offensive conduct of GARCIA, all of which constituted sexual

5 harassment of Plaintiff Vargas. Defendants’ failure to effectively address, correct, or prevent the

6 sexual harassment, discrimination based on sex, and retaliation faced by Plaintiff Vargas thereby

7 condoned such illegal acts and transformed the acceptance of GARCIA’s sexual advances into a

8 condition of Plaintiff Vargas’ continued employment.

9

28. GARCIA’s harassment of Plaintiff Vargas, combined with the failure of

10 Defendants, their agents, servants and/or employees to stop or correct his harassment, rendered

11 her work environment so hostile that any reasonable person would have found it intolerable.

12 Through GARCIA’s sexual harassment, Defendants’ failure to eradicate or correct it, and the

13 retaliation faced by Plaintiff Vargas for having complained, Defendants, their agents, servants

14 and/or employees recklessly and/or intentionally caused Plaintiff Vargas severe psychological

15 and emotional damage. Through their acts and omissions, which constituted sexual harassment

16 and unlawful discrimination based on sex as well as retaliation against Plaintiff Vargas,

17 Defendants, their agents, servants and/or employees, have caused Plaintiff Vargas to suffer

18 extreme anxiety, severe depression, and other emotional distress. Defendants’ conduct adversely

19 affected Plaintiff Vargas’ ability to work, as well as her overall sense of well-being.

20

29. Defendants, their agents, servants and/or employees committed the acts against

21 Plaintiff Vargas alleged herein maliciously, fraudulently, and oppressively, with the wrongful

22 intention of injuring Plaintiff Vargas and in conscious disregard of, and with reckless indifference

23 to, her rights as an employee.

24

Plaintiff/Intervenor Esther Hernandez

25

30. Plaintiff/Intervenor Esther Hernandez (“Plaintiff E. Hernandez”) has worked for

26 various Harman Management-owned and/or -operated franchises in Northern California since

27 November 1996. She has worked at the Harman-Chiu restaurant during more than one period

28 over the last several years. The most recent period during which she worked at the Harman-Chiu

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

8

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 9 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 restaurant was from approximately July 2002 until approximately May 2003. During her

2 employment at the Harman-Chiu restaurant during this period of time, Plaintiff E. Hernandez

3 worked as a cashier, doing food prep and as a Shift Supervisor. She currently works at one of the

4 restaurants owned and/or operated by Defendant Harman Management in Oakland, California.

5

31. As with Plaintiff Vargas, within the first weeks that Plaintiff E. Hernandez began

6 working with Defendants’ managerial employee Jorge GARCIA, GARCIA commenced a

7 continual course of conduct wherein he sexually harassed Plaintiff E. Hernandez. GARCIA

8 repeatedly forced Plaintiff E. Hernandez to endure offensive language, and intimidating and

9 unwelcome sexual overtures. This harassment was severe and pervasive enough to alter her

10 working conditions and create a hostile work environment. Among other acts that he committed

11 in E. Hernandez’s presence, GARCIA grabbed the area around his genitals and sighed in a sexual

12 manner while he looked at women, made comments to Plaintiff E. HERNANDEZ about her

13 breasts, and continuously pressured E. HERNANDEZ to sleep with him in order to advance

14 within the company.

15

32. GARCIA’s sexual harassment of Plaintiff E. Hernandez was pervasive and was

16 designed to compel Plaintiff E. Hernandez to submit to his sexual advances, rendering Plaintiff E.

17 Hernandez’s submission to his sexual advances a term or condition of her employment at

18 Harman-Chiu. GARCIA’s sexual harassment of Plaintiff E. Hernandez thus substantially

19 affected the terms and conditions of her employment.

20

33. GARCIA’s sexual harassment of E. Hernandez continued through May 2003, even

21 after Plaintiff E. Hernandez repeatedly made clear that his behavior was unwelcome and made her

22 feel uncomfortable, and that she wanted the harassment to stop.

23

34. Upon complaining of GARCIA’s sexual harassment to the agents, employees,

24 and/or servants of Defendants, Plaintiff E. Hernandez was subjected to retaliation in the form of

25 reduction in work hours, denial of promotion opportunities, and criticism of her work as a

26 Supervisor that undermined her authority and ultimately led to her being transferred to a different

27 store, where she was assigned to work fewer hours and received lower pay.

28

35. Despite Plaintiff E. Hernandez’s complaints about GARCIA’s conduct,

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

9

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 10 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 Defendants Harman-Chiu and Harman Management failed and refused to effectively investigate

2 or terminate the course of repetitively offensive conduct of GARCIA, all of which constituted

3 sexual harassment of Plaintiff E. Hernandez. Defendants’ failure to effectively address, correct, or

4 prevent these the sexual harassment, discrimination based on sex, and retaliation faced by

5 Plaintiff E. Hernandez thereby condoned such illegal acts and transforming the acceptance of

6 GARCIA’s sexual advances into a condition of E. Hernandez’s continued employment.

7

36. GARCIA’s sexual harassment of Plaintiff E. Hernandez, combined with the failure

8 of Defendants, their agents, servants and/or employees to stop or correct his harassment, rendered

9 her work environment so hostile that any reasonable person would have found it intolerable.

10 Through GARCIA’s sexual harassment, Defendants’ failure to eradicate or correct it, and the

11 retaliation faced by Plaintiff E. Hernandez for having complained, Defendants, their agents,

12 servants and/or employees, recklessly and/or intentionally caused Plaintiff E. Hernandez to suffer

13 extreme anxiety, severe depression, and other emotional distress. Defendants’ conduct adversely

14 affected Plaintiff E. Hernandez’s ability to work, as well as her overall sense of well-being.

15

37. Defendants, their agents, servants and/or employees committed the acts against

16 Plaintiff E. Hernandez alleged herein maliciously, fraudulently, and oppressively, with the

17 wrongful intention of injuring Plaintiff E. Hernandez, and in conscious disregard of, and with

18 reckless indifference to, her rights as an employee.

19

Plaintiff/Intervenor Marivel Hernandez

20

38. Plaintiff/Intevener Marivel Hernandez (“Plaintiff M. Hernandez”) worked for

21 Defendants at the Harman-Chiu restaurant from 1998 until April 2003 and then again from

22 August 2003 to September 2003. From 1998 to approximately 1999, Plaintiff M. Hernandez

23 worked as a cashier and reported directly to Defendants’ manager. In 1999, Plaintiff M.

24 Hernandez was promoted to a Shift Supervisor position, which she held until April 2003, and

25 again from August 2003 to September 2003. In or about August 2002 GARCIA began working

26 at the Harman-Chiu restaurant and became Plaintiff M. Hernandez’s direct supervisor.

27

39. As with Plaintiffs Vargas and E. Hernandez, within the first weeks that Plaintiff

28 M. Hernandez began working with GARCIA, GARCIA commenced a continual course of

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

10

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 11 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 conduct wherein he sexually harassed Plaintiff M. Hernandez. This harassment was severe and

2 pervasive enough to alter her working conditions and create a hostile work environment.

3 GARCIA repeatedly forced Plaintiff M. Hernandez to endure offensive language and intimidating

4 and unwelcome sexual overtures. Among other acts, GARCIA performed a mock strip tease and

5 rubbed his body in a sexual manner, made graphic comments to Plaintiff M. Hernandez about the

6 size of her breasts, and continuously pressured Plaintiff M. Hernandez to go to a motel with him

7 to have sexual intercourse.

8

40. GARCIA’s sexual harassment was pervasive and was designed to compel M.

9 HERNANDEZ to submit to his sexual advances, rendering Plaintiff M. Hernandez’s submission

10 to his sexual advances a term or condition of her employment at Harman-Chiu. GARCIA’s

11 sexual harassment of Plaintiff M. Hernandez thus substantially affected the terms and conditions

12 of her employment.

13

41. GARCIA’s sexual harassment of Plaintiff M. Hernandez continued through

14 September 2003, even after Plaintiff M. Hernandez repeatedly made clear that his behavior was

15 unwelcome and that she wanted the harassment to stop.

16

42. Upon complaining of GARCIA’s sexual harassment to the agents, employees,

17 and/or servants of Defendants, Plaintiff M. Hernandez was subjected to retaliation in the form of

18 reduction in work hours, denial of promotion opportunities, and ultimately, termination of her

19 employment.

20

43. Despite Plaintiff M. Hernandez’s complaint about GARCIA’s conduct, Defendants

21 Harman-Chiu and Harman Management failed and refused to effectively investigate and

22 terminate the course of repetitively offensive conduct of GARCIA, all of which constituted sexual

23 harassment of Plaintiff M. Hernandez. Defendants’ failure to effectively address, correct, or

24 prevent these adverse the sexual harassment, discrimination based on sex, and retaliation faced by

25 Plaintiff M. Hernandez thereby condoned such illegal acts and transformed the acceptance of

26 GARCIA’s sexual advances into a condition of Plaintiff M. Hernandez’s continued employment.

27

44. GARCIA’s sexual harassment of Plaintiff M. Hernandez, combined with the

28 failure of Defendants, their agents, servants and/or employees to stop or correct his harassment

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

11

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 12 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 rendered her work environment so hostile that any reasonable person would have found it

2 intolerable. Through GARCIA’s sexual harassment, Defendants’ failure to eradicate or correct it,

3 and the retaliation faced by Plaintiff M. Hernandez for having complained, Defendants, their

4 agents, servants and/or employees, have recklessly and/or intentionally caused Plaintiff M.

5 Hernandez severe psychological and emotional damage. Through their acts and omissions, which

6 constituted sexual harassment, unlawful discrimination based on sex, and retaliation against

7 Plaintiff M. Hernandez, Defendants, their agents, servants, and/or employees have caused

8 Plaintiff M. Hernandez to suffer extreme anxiety, severe depression, and other emotional distress.

9 Defendants’ conduct adversely affected Plaintiff M. Hernandez’s ability to work, as well as

10 overall her sense of well-being.

11

45. Defendants, their agents, servants and/or employees committed the acts against

12 Plaintiff M. Hernandez alleged herein maliciously, fraudulently, and oppressively, with the

13 wrongful intention of injuring Plaintiff M. Hernandez, and in conscious disregard of, and with

14 reckless indifference to, her rights as an employee.

15

FIRST CLAIM FOR RELIEF HOSTILE ENVIRONMENT SEXUAL HARASSMENT

16

(TITLE VII, 42 U.S.C. § 2000e-2(a)(1))

17

46. Plaintiffs/Intervenors hereby incorporate by reference each and every allegation

18 contained in paragraphs 1 through 45 of this complaint as though fully set forth herein.

19

47. Defendants violated Plaintiffs’ rights under Title VII by subjecting Plaintiffs to

20 unwelcome sexual comments and acts and permitting and encouraging a work environment in

21 which Plaintiffs were subjected to ridicule, harassment, discrimination and intimidation because

22 of their sex.

23

48. As described above, Defendants’ aforesaid acts of harassment were wanton,

24 willful and intentional, and were committed with malicious and reckless disregard for the rights

25 and sensibilities of Plaintiffs.

26

49. Defendants participated in creating and maintaining a hostile work environment

27 and failed to investigate, stop, or prevent the incidents of sexual harassment even after Plaintiffs

28 gave notice of such incidents.

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

12

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 13 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1

50. As a direct and proximate result of the aforesaid harassment based on sex,

2 Plaintiffs have sustained injury in the form of severe emotional distress, humiliation,

3 embarrassment, physical injury and mental anguish, all to their damage in amounts to be

4 established at trial.

5

WHEREFORE, Plaintiffs/Intervenors request relief as hereinafter provided.

6

SECOND CLAIM FOR RELIEF

7

UNLAWFUL EMPLOYMENT DISCRIMINATION BASED ON SEX

(TITLE VII, 42 U.S.C. § 2000e-2(a)(1))

8

51. Plaintiffs/Intervenors hereby incorporate by reference each and every allegation

9 contained in paragraphs 1 through 50 of this complaint as though fully set forth herein.

10

52. Defendants unlawfully discriminated against Plaintiffs/Intervenors based on their

11 sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16.

12

53. Defendants treated Plaintiffs less favorably than similarly situated male

13 employees, subjecting them to discrimination in pay and raises and in other terms and conditions

14 of their employment in violation of Title VII, including, but not limited to degrading comments,

15 reduction in working hours, denial of promotion opportunities, and criticism of their work.

16 Additionally, Defendants subjected Plaintiffs to unwelcome sexual advances, comments, insults

17 and degrading and humiliating conduct and/or failed to take steps reasonably calculated to end the

18 sexual harassment of and discrimination against Plaintiffs as described above.

19

54. Defendants’ acts of discrimination against Plaintiffs on the basis of sex were

20 wanton, willful and intentional, and were committed with malicious and reckless disregard of the

21 rights and sensibilities of the Plaintiffs.

22

55. As a direct and proximate result of the aforesaid discrimination based on

23 Plaintiffs’ sex, Plaintiffs/Intervenors have sustained a loss of earnings and other benefits. They

24 also have suffered physical injuries and severe emotional distress manifested by feelings of

25 humiliation, embarrassment, anxiety, nervousness and other symptoms of stress.

26

WHEREFORE, Plaintiffs/Intervenors request relief as hereinafter provided.

27 / / /

28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

13

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 14 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1

THIRD CLAIM FOR RELIEF

UNLAWFUL RETALIATION

2

(TITLE VII, 42 U.S.C. § 2000e-3(a))

3

56. Plaintiffs/Intervenors hereby incorporate by reference each and every allegation

4 contained in paragraphs 1 through 55 of this complaint as though fully set forth herein.

5

57. At all times material hereto, Defendants owed Plaintiffs/Intervenors a duty not to

6 discriminate against them in the terms and conditions of their employment on the basis of their

7 opposition to practices prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. '2000e-

8 3(a).

9

58. In violation of the aforesaid duty, Defendants took adverse actions against

10 Plaintiffs/Intervenors because of their protected activity of complaining about the harassment and

11 discrimination against them, as described herein.

12

59. Defendants’ decisions to take the adverse actions against Plaintiffs described

13 herein were wanton, willful and intentional, and were committed with malicious and reckless

14 disregard for the rights and sensibilities of Plaintiffs.

15

60. As a direct and proximate result of the aforesaid discrimination based on protected

16 activity, Plaintiffs sustained harm including severe emotional stress and the loss of compensation,

17 including but not limited to wages and other benefits that they otherwise would have received.

18

61. Defendants, acting individually and/or by and through their managing agents,

19 officers or directors, committed the acts herein alleged maliciously, fraudulently, and

20 oppressively, with the wrongful intention of injuring Plaintiffs, and acted with an improper and

21 evil motive amounting to malice, and in conscious disregard of Plaintiffs’ rights. Accordingly,

22 Plaintiffs/Intervenors are entitled to recover punitive damages from Defendants in an amount

23 according to proof.

24

62. Plaintiffs/Intervenors have been forced to seek the assistance of counsel to

25 vindicate their legal rights and are entitled to recover attorney's fees under 42 U.S.C. § 2000(e), et

26 seq., Title VII of the Civil Rights Act of 1964 or any other law providing for recovery of

27 attorneys’ fees.

28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

14

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 15 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1

WHEREFORE, Plaintiffs/Intervenors request relief as hereinafter provided.

2

FOURTH CLAIM FOR RELIEF

3

UNLAWFUL EMPLOYMENT DISCRIMINATION BASED ON SEX

(CALIFORNIA GOVERNMENT CODE § 12940(a))

4

63. Plaintiffs/Intervenors hereby incorporate by reference each and every allegation

5 contained in paragraphs 1 through 62 of this complaint as though fully set forth herein.

6

64. At all times material hereto, Defendants owed Plaintiff/Intervenors a duty not to

7 discriminate against them in the terms and conditions of their employment on the basis of their

8 sex as mandated by the Fair Employment and Housing Act, Government Code Section 12940(a).

9

65. In violation of the aforesaid duty, Defendants treated Plaintiffs less favorably than

10 similarly situated male employees, subjecting them to discrimination in working conditions,

11 benefits, and in other terms and conditions of their employment including, but not limited to:

12 degrading comments, reduction in working hours, denial of promotion opportunities, and

13 criticism of their work. Additionally, Defendants subjected Plaintiffs to unwelcome sexual

14 advances, comments, insults and degrading and humiliating conduct and/or failed to take steps

15 reasonably calculated to end the sexual harassment of and discrimination against Plaintiffs as

16 described above.

17

66. Defendants’ decisions to take the adverse actions against Plaintiffs including, but

18 not limited to those described in the previous paragraph, were wanton, willful and intentional, and

19 were committed with malicious and reckless disregard for the rights and sensibilities of Plaintiffs.

20

67. As a direct and proximate result of the aforesaid discrimination based on sex,

21 Plaintiffs have sustained harm including severe emotional stress and the loss of compensation,

22 including but not limited to, wages and other benefits that they otherwise would have received.

23

68. Defendants, acting individually and/or by and through their managing agents,

24 officers or directors, committed the acts herein alleged maliciously, fraudulently, and

25 oppressively, with the wrongful intention of injuring Plaintiffs, and acted with an improper and

26 evil motive amounting to malice, and in conscious disregard of Plaintiffs’ rights. Accordingly,

27 Plaintiffs/Intervenors are entitled to recover punitive damages from Defendants in an amount

28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

15

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 16 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 according to proof.

2

69. Plaintiffs/Intervenors have been forced to seek the assistance of counsel to

3 vindicate their legal rights and are entitled to recover attorneys’ fees under Government Code

4 section 12940, et seq. or any other law providing for recovery of attorneys’ fees.

5

WHEREFORE, Plaintiffs/Intervenors request relief as hereinafter provided.

6

7

FIFTH CLAIM FOR RELIEF UNLAWFUL RETALIATION BASED ON PROTECTED ACTIVITY

8

(CALIFORNIA GOVERNMENT CODE § 12940(h))

9

70. Plaintiffs hereby incorporate by reference each and every allegation contained in

10 paragraphs 1 through 69 of this complaint as though fully set forth herein.

11

71. At all times material hereto, Defendants owed Plaintiffs a duty not to discriminate

12 against them in the terms and conditions of their employment on the basis of their opposition to

13 practices prohibited by the Fair Employment and Housing Act, Government Code Section 12900

14 et seq.

15

72. In violation of the aforesaid duty, Defendants took adverse actions against

16 Plaintiffs because of their protected activity of complaining about the harassment and

17 discrimination against them, as described herein.

18

73. Defendants’ decisions to take the adverse actions against Plaintiffs described

19 herein were wanton, willful and intentional, and committed with malicious and reckless disregard

20 for the rights and sensibilities of Plaintiffs.

21

74. As a direct and proximate result of the aforesaid discrimination based on protected

22 activity, Plaintiffs sustained harm including severe emotional stress and the loss of compensation,

23 including but not limited to wages and other benefits that they otherwise would have received.

24

75. Defendants, acting individually and/or by and through their managing agents,

25 officers or directors, committed the acts herein alleged maliciously, fraudulently, and

26 oppressively, with the wrongful intention of injuring Plaintiffs, and acted with an improper and

27 evil motive amounting to malice, and in conscious disregard of Plaintiffs’ rights. Accordingly,

28 Plaintiffs/Intervenors are entitled to recover punitive damages from Defendants in an amount

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

16

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 17 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 according to proof.

2

76. Plaintiffs/Intervenors have been forced to seek the assistance of counsel to

3 vindicate their legal rights and are entitled to recover attorneys’ fees under Government Code

4 section 12940, et seq., or any other law providing for recovery of attorneys’ fees.

5

WHEREFORE, Plaintiffs/Intervenors request relief as hereinafter provided.

6

SIXTH CLAIM FOR RELIEF

7

AIDING AND ABETTING SEXUAL HARASSMENT,

SEX DISCRIMINATION, AND RETALIATION

8

(CALIFORNIA GOVERNMENT CODE § 12940(i))

9

77.

Plaintiffs hereby incorporate by reference each and every allegation contained

10

in paragraphs 1 through 76 of this complaint as though fully set forth herein.

11

78.

In perpetrating the above-described actions and omissions, Defendants

12

Harman-Chiu and Harman Management, as employers, their agents, servants and/or

13

employees, engaged in a pattern and practice of unlawful aiding and abetting of harassment,

14

discrimination, and retaliation, in violation of the California Fair Employment and Housing

15

Act, California Government Code § 12940(i).

16

79.

Defendants, their agents, servants and/or employees, attempted to and did in

17

fact, aid, abet, incite, compel and/or coerce their agents, servants and/or employees to

18

engage in unlawful sexual harassment, sex and/or gender discrimination, and retaliation

19

against the Plaintiffs, as alleged above.

20

80.

As a direct and proximate result of the aforesaid harassment based on sex,

21

Plaintiffs/Intervenors Vargas, M. Hernandez and E. Hernandez have sustained injury in the

22

form of severe emotional distress, humiliation, embarrassment, and mental anguish, all to

23

their damage in amounts to be established at trial.

24

81.

Defendants’ acts were wanton, willful and intentional, and were committed

25

with malicious and reckless disregard for the rights and sensibilities of Plaintiffs.

26

WHEREFORE, Plaintiffs/Intervenors request relief as hereinafter provided.

27

/ / /

28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

17

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 18 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1

SEVENTH CLAIM FOR RELIEF

HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT

2

(CALIFORNIA GOVERNMENT CODE § 12940(j))

3

82. Plaintiffs hereby incorporate by reference each and every allegation contained in

4 paragraphs 1 through 81 of this complaint as though fully set forth herein.

5

83. Plaintiffs/Intervenors are women. Defendants subjected them to unwelcome

6 sexual advances, comments, insults and degrading and humiliating conduct as described above

7 and/or failed to take steps reasonably calculated to end the sexual harassment of Plaintiffs.

8

84. Defendants’ aforesaid unwelcome sexual comments and acts were so severe or

9 pervasive that they created a hostile work environment and adversely affected the terms and

10 conditions of Plaintiffs’ employment based on their sex, in violation of the Fair Employment and

11 Housing Act, Government Code § 12940(j).

12

85. Defendants’ aforesaid acts of harassment were wanton, willful and intentional, and

13 were committed with malicious and reckless disregard for the rights and sensibilities of Plaintiffs.

14

86. As a direct and proximate result of the aforesaid harassment based on sex,

15 Plaintiffs have sustained injuries in the form of severe emotional stress and the loss of

16 compensation, including but not limited to wages and other benefits that they otherwise would

17 have received.

18

87. Defendants, acting individually and/or by and through their managing agents,

19 officers or directors, committed the acts herein alleged maliciously, fraudulently, and

20 oppressively, with the wrongful intention of injuring Plaintiffs, and acted with an improper and

21 evil motive amounting to malice, and in conscious disregard of Plaintiffs’ rights. Accordingly,

22 Plaintiffs are entitled to recover punitive damages from Defendants in an amount according to

23 proof.

24

88. Plaintiffs/Intervenors have been forced to seek the assistance of counsel to

25 vindicate their legal rights and are entitled to recover attorneys’ fees under Government Code

26 section 12940, et seq. or any other law providing for recovery of attorneys’ fees.

27

WHEREFORE, Plaintiffs/Intervenors request relief as hereinafter provided.

28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

18

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 19 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1

EIGHTH CLAIM FOR RELIEF

FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT,

2

(CALIFORNIA GOVERNMENT CODE § 12940(k))

3

89. Plaintiffs hereby incorporate by reference each and every allegation contained in

4 paragraphs 1 through 88 of this complaint as though fully set forth herein.

5

90. Defendants Harman-Chiu, Harman Management, and Does 1 through 10, and/or

6 their agents/employees, failed to take all reasonable steps necessary to prevent the harassment and

7 discrimination in employment described herein from occurring. Defendants knew or should have

8 known of the discrimination against Plaintiffs described above, yet failed to conduct an adequate

9 investigation into the nature and substance of the discrimination and failed to take immediate and

10 appropriate corrective action so as to discipline any of the offenders.

11

91. The response of Defendants, and/or that of their agents and employees, to the

12 discrimination and harassment described herein was so inadequate as to establish a deliberate

13 indifference to, or tacit authorization of, the alleged offensive practices, and an affirmative causal

14 link existed between Defendants’ inaction and the injuries suffered by Plaintiffs.

15

92. By failing to take all reasonable steps necessary to prevent discrimination, and by

16 failing to properly investigate and remedy the discrimination that occurred, Defendants Harman-

17 Chiu, Harman Management, and Does 1 through 10, committed unlawful employment practices

18 as described in and prohibited by California Government Code § 12940(k).

19

93. In engaging in the aforementioned conduct, Defendants, and each of them, aided,

20 abetted, incited, compelled, and/or coerced unlawful employment practices in violation of the

21 announced policy of this State against such practices.

22

94. As a direct and foreseeable result of the aforesaid acts of said Defendants,

23 Plaintiffs have lost and will continue to lose income and benefits in an amount to be proven at the

24 time of trial. Plaintiffs claim such amount as damages together with pre-judgment interest

25 pursuant to Civil Code section 3287 and/or any other provision of law providing for pre-judgment

26 interest.

27

95. As a result of the aforesaid acts of Defendants, Plaintiffs claim general damages

28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

19

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 20 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 for mental and severe emotional distress and aggravation in an amount to be proven at the time of

2 trial.

3

96. Defendants, acting individually and/or by and through their managing agents,

4 officers or directors, committed the acts herein alleged maliciously, fraudulently, and

5 oppressively, with the wrongful intention of injuring Plaintiffs, and acted with an improper and

6 evil motive amounting to malice, and in conscious disregard of Plaintiffs’ rights. Accordingly,

7 Plaintiffs/Intervenors are entitled to recover punitive damages from Defendants in an amount

8 according to proof.

9

97. Plaintiffs/Intervenors have been forced to seek the assistance of counsel to

10 vindicate their legal rights and are entitled to recover attorneys’ fees under California

11 Government Code § 12940, et seq., or any other law providing for recovery of attorneys’ fees.

12

WHEREFORE, Plaintiffs/Intervenors request relief as hereinafter provided.

13

PRAYER FOR RELIEF

14

WHEREFORE, Plaintiffs/Intervenors respectfully pray that this Court grant the following

15 relief:

16

1) All damages which individual Plaintiffs/Intervenors have sustained as a result of

17 Defendants’ conduct, including: back pay, front pay, general and special damages for lost

18 compensation and job benefits that they would have received but for the discriminatory practices

19 of Defendants, damages for emotional distress, and punitive damages, in amounts according to

20 proof;

21

2) Exemplary and punitive damages in an amount commensurate with Defendants’

22 ability to pay and to deter future conduct;

23

3) A preliminary and permanent injunction against Defendants and their directors,

24 officers, owners, agents, successors, employees and representatives, and any and all persons

25 acting in concert with them, requiring them to

26

(a) Desist from engaging in each of the unlawful practices, policies, customs and

27

usages set forth herein;

28

(b) Adopt a lawful policy for preventing and remedying unlawful harassment

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

20

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 21 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1

and discrimination that creates an effective process for the investigation and

2

resolution of harassment and discrimination complaints and forbids unlawful

3

retaliation against complainants; and

4

(c) Create a monitoring and reporting system to ensure that injunctive relief is

5

fully implemented;

6

4) A declaratory judgment that the practices complained of in this complaint are

7 unlawful and violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq.;

8

5) An assignment of Plaintiffs/Intervenors to those jobs they would now be occupying

9 but for Defendants’ discriminatory practices;

10

6) An adjustment of the wage rates and benefits for Plaintiffs/Intervenors to that level

11 which Plaintiffs/Intervenors would be enjoying but for Defendants’ discriminatory practices;

12

7) Costs of litigation incurred by Plaintiffs/Intervenors, including reasonable attorneys’

13 fees, to the extent allowable by law;

14

8) Pre- and post-judgment interest, as provided by law, in amounts according to proof;

15 and

16

9) Such other and further legal and equitable relief as this Court deems necessary, just

17 and proper.

18

Respectfully submitted,

19 Dated: February 17, 2006
20 21 22 23 24

Virginia Villegas, SBN 179062 Jennifer A. Reisch, SBN 223671 TALAMANTES/VILLEGAS/CARRERA, LLP 1550 Bryant Street, Suite 725 San Francisco, CA 94103 Telephone: (415) 861-9600 Facsimile: (415) 861-9622

25 By: _________________________________

26

Virginia Villegas

27

28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

21

Case 5:05-cv-03615-JF Document 25 Filed 02/17/2006 Page 22 of 22

TALAMANTES/VILLEGAS/CARRERA, LLP
ATTORNEYS AT LAW SAN FRANCISCO

1
JURY DEMAND 2
Plaintiffs/Intervenors hereby demand a jury trial as provided by Rule 38(a) of the Federal 3
Rules of Civil Procedure on all claims where such trial is authorized by law. 4

5 Respectfully submitted,
6

7 Dated: February 17, 2006 8 9 10 11 12 13

Virginia Villegas, SBN 179062 Jennifer A. Reisch, SBN 223671 TALAMANTES/VILLEGAS/CARRERA, LLP 1550 Bryant Street, Suite 725 San Francisco, CA 94103 Telephone: (415) 861-9600 Facsimile: (415) 861-9622
By: _________________________________ Virginia Villegas

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT IN INTERVENTION AND

DEMAND FOR JURY TRIAL

22

 
 Case 5:05-cv-03615-JF Document 26 Filed 02/18/2006 Page 1 of 6

1 WILLIAM R. TAMAYO – #084965 (CA) JONATHAN T. PECK -- #12303 (VA)
2 EVANGELINA FIERRO HERNANDEZ -- #168879 (CA) EQUAL EMPLOYMENT OPPORTUNITY
3 COMMISSION San Francisco District Office
4 350 The Embarcadero, Suite 500 San Francisco, California 94105
5 Telephone: (415) 625-5622 Facsimile: (415) 625-5657
6 Attorneys for Plaintiff Equal Employment Opportunity Commission
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 EQUAL EMPLOYMENT OPPORTUNITY ) Civil Action No. CV-05-3615-JF

COMMISSION,

)

12

)

Plaintiff,

) FIRST AMENDED COMPLAINT

13

)

v.

) Civil Rights - Employment

14

) Discrimination

HARMAN - CHIU, INC., d/b/a/

)

15 KFC / TACO BELL and HARMAN-

)

MANAGEMENT CORPORATION,

) DEMAND FOR JURY TRIAL

16

)

)

17

Defendants.

)

_______________________________________

18

NATURE OF THE ACTION

19

This action is brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title

20

VII”) and Title I of the Civil Rights Act of 1991 to correct unlawful employment

21

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

22

Charging Party Sandra Vargas (“Charging Party Vargas”) and other similarly situated

23

female employees who were adversely affected by such practices. Defendants Harman

24

- Chiu, Inc., d/b/a KFC/Taco Bell (“Harman - Chiu”) and Harman-Management

25

Corporation (collectively “Defendant Employers”) subjected the Charging Party and

26

similarly situated female employees to unlawful harassment based on their sex, created

27

a hostile work environment based on their sex, and subjected them to retaliation for

28

engaging in protected activity under Title VII, which caused the constructive discharge

FIRST AMENDED COMPLAINT FOR DISCRIMINATION

Page 1

Case 5:05-cv-03615-JF Document 26 Filed 02/18/2006 Page 2 of 6

1 of many of these females.

2

JURISDICTION AND VENUE

3

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331,

4 1337, 1343 and 1345. This action is authorized and instituted pursuant to §706(f)(1) and

5 (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(1) and

6 (3) (“Title VII”) and §102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a.

7

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

8 committed within the jurisdiction of the United States District Court for the Northern

9 District of California, San Jose division.

10

INTRADISTRICT ASSIGNMENT

11

3. This action is appropriate for assignment to San Jose because the unlawful

12 employment practices alleged were and are being committed within Santa Clara

13 County, the employment record relevant to the unlawful practices are located in Santa

14 Clara County, and because Defendant’s principal place of business is in Santa Clara

15 County.

16

PARTIES

17

4. Plaintiff, the Equal Employment Opportunity Commission

18 (“Commission”) is the agency of the United States of America charged with the

19 administration, interpretation and enforcement of Title VII, and is expressly authorized

20 to bring this action by §706(f)(1) and (3) of Title VII, §2000-e(f)(1) and (3).

21

5. Defendant Harman - Chiu is a California company, doing business in the

22 State of California, in the County of San Joaquin, and has continuously had at least 15

23 employees.

24

6. At all relevant times, Defendant Harman - Chiu has continuously been an

25 employer engaged in an industry affecting commerce, within the meaning of Section

26 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000-e(b), (g) and (h).

27

7. At all relevant times, Defendant Harman - Chiu was the joint employer of

28 Charging Party and similarly situated female employees for purposes of Title VII

FIRST AMENDED COMPLAINT FOR DISCRIMINATION

Page 2

Case 5:05-cv-03615-JF Document 26 Filed 02/18/2006 Page 3 of 6

1 liability.

2

8. Defendant Harman-Management is a Utah company, doing business in

3 the State of California, in the County of San Joaquin, and has continuously had at least

4 15 employees.

5

9. At all relevant times, Defendant Harman-Management has continuously

6 been an employer engaged in an industry affecting commerce, within the meaning of

7 Section 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000-e(b), (g) and (h).

8

10. At all relevant times, Defendant Harman-Management was the joint

9 employer of Charging Party and similarly situated female employees for purposes of

10 Title VII liability.

11

STATEMENT OF CLAIMS

12

CLAIM FOR RELIEF

13

14 Violation of Title VII of Civil Rights Act : Sex Discrimination, Sexual Harassment

15

11. More than thirty days prior to the institution of this lawsuit, Charging

16 Party filed her charge with Plaintiff Commission alleging violations of Title VII by

17 Defendant Employers. All conditions precedent to the institution of this lawsuit have

18 been fulfilled.

19

12. Since at least August 2002, Defendant Employers have engaged in

20 unlawful practices of sex discrimination in violation §703(a) of Title VII, 42 U.S.C.

21 §2000e-2(a) by subjecting the Charging Party and similarly situated female employees

22 to a sexually hostile, abusive, intimidating and offensive work environment which

23 culminated in tangible employment actions.

24

13. The effect of the actions complained of in Paragraph 12 above has been to

25 deprive the Charging Party and similarly situated female employees of equal

26 employment opportunities and otherwise adversely affect their status as employees

27 because of their sex.

28

14. The unlawful employment practices complained of in Paragraph 12 above

FIRST AMENDED COMPLAINT FOR DISCRIMINATION

Page 3

Case 5:05-cv-03615-JF Document 26 Filed 02/18/2006 Page 4 of 6

1 were intentional.

2

15. The unlawful employment practices complained of in Paragraph 12 above

3 were done with malice or with reckless indifference to the federally protected rights of

4 the Charging Party and similarly situated female employees.

5

Violation of Title VII of Civil Rights Act : Retaliation

6

16. More than thirty days prior to the institution of this lawsuit, Charging

7 Party filed her charge with Plaintiff Commission, alleging violations of Title VII by

8 Defendant. All conditions precedent to the institution of this lawsuit have been

9 fulfilled.

10

17. Since at least September, 2002 Defendant has engaged in unlawful

11 practices of retaliation, in violation §704(a) of Title VII, 42 U.S.C. §2000e-3(a), by

12 subjecting Charging Party and similarly situated female employees to adverse actions

13 for engaging in protected activity, including reducing their work hours and ultimately

14 wrongfully discharging them.

15

18. The effect of the actions complained of in Paragraph 17 above has been to

16 deprive the Charging Party and similarly situated female employees of equal

17 employment opportunities and has otherwise adversely affected their status as

18 employees because of their protected activity.

19

19. The unlawful employment practices complained of in Paragraph 17 above

20 were intentional.

21

20. The unlawful employment practices complained of in Paragraph 17 above

22 were done with malice or with reckless indifference to the federally protected rights of

23 the Charging Party and similarly situated female employees.

24

PRAYER FOR RELIEF

25

Wherefore, the Commission respectfully requests that this Court:

26

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

27 successors, assigns, and all persons acting in concert or participation with Defendant

28 Employers, from engaging in discrimination against its employees including

FIRST AMENDED COMPLAINT FOR DISCRIMINATION

Page 4

Case 5:05-cv-03615-JF Document 26 Filed 02/18/2006 Page 5 of 6

1 harassment based on sex and retaliation.

2

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

3 and programs which prohibit harassment based on sex and retaliation and which

4 eradicate the effects of its unlawful employment practices.

5

C. Order Defendant Employers to make whole Charging Party and similarly

6 situated female employees by providing appropriate back pay and benefits with

7 prejudgment interest, and other affirmative relief necessary to eradicate the effects of its

8 unlawful employment practices, including but not limited to reinstatement and/or

9 front pay and other appropriate relief to be determined at trial.

10

D. Order Defendant Employers to make whole Charging Party and similarly

11 situated female employees harmed by providing compensation for past and future

12 pecuniary losses resulting from the unlawful employment practices complained of

13 above, including but not limited to such out-of-pocket expenses as medical care

14 necessitated by Defendant’s unlawful conduct, in amounts to be determined at trial.

15

E. Order Defendant Employers to make whole Charging Party and similarly

16 situated female employees harmed by providing compensation for past and future

17 nonpecuniary losses resulting from the unlawful practices complained of above

18 including, but not limited to emotional pain and suffering, inconvenience, loss of

19 enjoyment of life and humiliation, in amounts to be determined at trial.

20

F. Order Defendant Employers to pay Charging Party and similarly situated

21 female employees harmed by providing punitive damages for the malicious and

22 reckless conduct described above, in amounts to be determined at trial.

23

G. Grant such further relief as the Court may deem just and proper in the

24 public interest.

25

H. Award the Commission its costs of this action.

26

DEMAND FOR JURY TRIAL

27

Pursuant to the provisions of Federal Rule of Civil Procedure 38(b), Plaintiff

28 hereby demands a jury trial.

FIRST AMENDED COMPLAINT FOR DISCRIMINATION

Page 5

Case 5:05-cv-03615-JF Document 26 Filed 02/18/2006 Page 6 of 6

1 2 3 4 5 6 7 Date: February 18, 2006 8 9 10 11 Date: February 18, 2006 12 13 14 Date: February 18, 2006 15 16 17 18 19 20 21 22 23 24 25 26 27 28

James L. Lee Deputy General Counsel Gwendolyn Young Reams Associate General Counsel Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, DC 20507
__/s/ William R. Tamayo___________ WILLIAM R. TAMAYO Regional Attorney
__/s/ Jonathan T. Peck____________ JONATHAN T. PECK Supervisory Trial Attorney
___/s/ Evangelina Fierro Hernandez_ EVANGELINA FIERRO HERNANDEZ Senior Trial Attorney
Equal Employment Opportunity Commission San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, California 94105

FIRST AMENDED COMPLAINT FOR DISCRIMINATION

Page 6

 
 Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 1 of 17

1 WILLIAM R. TAMAYO - #084965 (CA)

JONATHAN T. PECK -- #12303 (VA)

2 EVANGELINA FIERRO HERNANDEZ -- #168879 (CA)

EQUAL EMPLOYMENT OPPORTUNITY

3 COMMISSION San Francisco District Office

**E-filed 9/26/06**

4 350 The Embarcadero, Suite 500

San Francisco, California 94105

5 Telephone: (415) 625-5622

Facsimile: (415) 625-5657

6

Attorneys for Plaintiff Equal Employment Opportunity Commission

7

VIRGINIA VILLEGAS - #179062

8 JENNIFER REISCH - #223671

TALAMANTESIVILLEGAS/CARRERA, LLP

9 1550 Bryant Street, Suite 725

San Francisco, CA 94103

10 Telephone: (415) 861-9600

Facsimile: (415) 861-9622

11

Attorneys for Plaintiff/Intervenors Sandra Vargas, Marivel Hernandez, and Esther Hernandez

12

13 BRUCE J. BOEHM - #186715
McKAY, BURTON & THURMAN 14 170 South Main Street, Suite 800
Salt Lake City, Utah 84101 15 Telephone: (801) 521-4135
Facsimile: (801) 521-4252 16
Attorneys for Defendants 17 HARMAN-CHill, INC., d/b/a KFC/TACO BELL, HARMAN MANAGEMENT
CORPORATION, INC., AND JORGE GARCIA 18

19

20

UNITED STATES DISTRICT COURT

21

NORTHERN DISTRICT OF CALIFORNIA

22

23 EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

)

24

)

Plaintiff,

)

25

)

SANDRA VARGAS, ESTHER

)

26 HERNANDEZ, and MARIVEL

)

HERNANDEZ

)

27

)

PlaintifflIntervenors, )

28

)

Civil Action No. C-05-3615 JF CONSENT DECREE

CONSENT DECREE CIV. C 05 3615 JF

Page 1

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 2 of 17

1 ~

)

)

2 HARMAN-CHIU, INC., d/b/a!

)

KFC/TACO BELL, HARMAN

)

3 MANAGEMENT CORPORATION,

)

INC., JORGE GARCIA, AND

)

4 DOES 1-10 inclusive,

)

)

5

)

Defendants.

)

6

)

7 PlaintiffU.S. Equal Employment Opportunity Commission ("Commission" or "EEOC")
8
9 brought this lawsuit under Title VII ofthe Civil Rights Act of 1964 and Title I of the Civil Rights

10 Act of 1991, to correct alleged unlawful employment practices on the basis of sex harassment
11 and retaliation and to make whole Ms. Sandra Vargas and other similarly situated female 12
employees aggrieved by the alleged unlawful practices. Plaintiff EEOC alleged that defendants 13
14 HARMAN-CHill, INC., d/b/a KFC/TACO BELL (hereinafter "the Company") and HARMAN
15 MANAGEMENT CORPORATION ("HMC"), unlawfully subjected Ms. Vargas and others to a

16 sexually hostile work environment and retaliation. Plaintiff -Intervenors Sandra Vargas, Esther

17 Hernandez and Marivel Hernandez intervened in the lawsuit alleging both federal and state
18
claims of discrimination. Plaintiff EEOC and the Intervenors are collectively referred to as the
19
20 "Plaintiffs." Defendants denied all the allegations.

21

In the interest of resolving this matter and as a result of having engaged in

22 comprehensive settlement negotiations, the Commission, Intervenors, and Defendants
23 (hereinafter referred to as "the Parties") have agreed that the above-captioned lawsuit (the
24
"Lawsuit") should be finally resolved by entry of this Consent Decree. This Consent Decree 25
26 shall not constitute an adjudication and/or a finding on the merits ofthe Lawsuit.

27

This Consent Decree resolves all claims arising out of EEOC Charge No. 377-2003-

28 00905 and the complaints filed in the Lawsuit, and constitutes a complete resolution of all claims

CONSENT DECREE elV. C 05 3615 JF

Page 2

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 3 of 17

1 of sex discrimination, sexual harassment, and retaliation under Title VII that were made or could 2 have been made by the Commission and Intervenors in this Lawsuit. This consent decree also 3
resolves all claims for attorneys fees and costs that were made or could have been made by the 4 5 Commission and Intervenors, and their respective attorneys, in this Lawsuit. This Consent 6 Decree does not, however, resolve any future charges or charges that may be pending with the
7 EEOC other than the charge and complaints specifically referenced in this paragraph. 8
With the exception of the settlement agreement between Intervenors and Defendants, 9
this Consent Decree comprises the full and exclusive agreement ofthe Parties with respect to the
10 11 matters discussed herein. No waiver, modification or amendment of any provision of this 12 Consent Decree shall be effective unless made in writing and approved by all the Parties to. this 13 Decree, and any substantive change, modification or amendment of any provision of this 14
Consent Decree shall also require approval by the Court.
15
The Court has reviewed this Consent Decree in light of the pleadings, the record herein,
16 17 and now approves this Consent Decree. THEREFORE, IT IS ORDERED, ADJUDGED AND 18 DECREED:
GENERAL PROVISIONS
This Court has jurisdiction over the subject matter and the Parties to this Lawsuit. This
Court will retain jurisdiction over this Decree for all purposes until the expiration of
Defendants' obligations as set forth herein.
Defendant HMC will be dismissed with prejudice from this lawsuit.
This Consent Decree is final and binding upon the Parties, their successors and assigns.
GENERAL INJUNCTIVE RELIEF
Sexual Harassment: Consistent with Section 703 of Title VII, 42 U.S.C. §2000e-2, the

CONSENT DECREE CIY. C 053615 JF

Page 3

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 4 of 17

Company, and its officers, agents, managers (including supervisory employees), successors and assigns, shall be enjoined from: (a) discriminating against persons on the basis of sex in the terms and conditions of employment; (b) engaging in or be a party to any action, policy or practice that is intended to, or is known to them, to have the effect of harassing or intimidating any employee on the basis of sex; or (c) creating, facilitating or permitting, to the extent known to them, the existence of a work environment hostile to female employees. Retaliation: The Company its officers, agents, managers (including supervisory employees), successors or assigns, are enjoined from engaging in, implementing or permitting any action, policy or practice with the purpose of retaliating against any current or former employee ofthe Company because he or she has in the past, or during the term ofthis Consent Decree (a) opposed any practice of harassment or other discriminatory acts on the basis of sex made unlawful under Title VII; (b) filed a Charge of Discrimination alleging any such practice; (c) testified or participated in any manner in any investigation (including, without limitation, any internal investigation undertaken by the Company), proceeding or hearing in connection with this Lawsuit; (d) was identified as a possible witness in this Lawsuit; (e) asserted any rights under this Consent Decree; or (f) sought and/or received any monetary or non-monetary relief in accordance with this Consent Decree. MONETARY RELIEF The Company is to pay the total sum of $349,800.00 (Three hundred and forty nine thousand and eight hundred Dollars and No Cents) (the "Settlement Payment") as damages, to be allocated to Sandra Vargas, Esther Hernandez, Marivel Hernandez, other

CONSENT DECREE CIV. C 05 3615 JF

Poge4

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 5 of 17

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

similarly situated women, and their respective attorneys as determined by the EEOC and

Plaintiff Intervenors as set forth in Paragraph 7.

Sandra Vargas, Esther Hernandez, Marivel Hernandez and other similarly situated

women.

a. $345,000.00 of the Settlement Payment will be paid as damages for physical

injuries and/or physical illness, and emotional distress relating to such physical

injuries and/or physical illness and will be allocated to Sandra Vargas, Esther

Hernandez, Marivel Hernandez, other similarly situated women, and their

respective attorneys, as determined by the EEOC and Plaintiff Intervenors. The

remaining $4,800.00 of the Settlement Payment will be allocated as follows:

$1,600.00 to Sandra Vargas for vocational training, $1,600.00 to Esther

Hernandez for vocational training, and $1,600.00 to Marivel Hernandez for

vocational training

b. The Plaintiffs shall advise the Company ofthe allocation of the Settlement

Payment, and the Company shall report the Settlement Payment by issuance of

IRS Form lO99.

c. The Company shall pay the Settlement Payment as follows:

I.

Within ten (10) days of all of the following having occurred: 1) the entry

of this Consent Decree, 2) dismissal of the Complaint in Intervention with

prejudice, 3) dismissal ofHMC with prejudice, and 4) receipt ofproperiy

completed W-9's, the Company will issue 1) a check for the amount of

$319,800.00 made jointly payable to Sandra Vargas, Esther Hernandez, Marivel

Hernandez, and TalamantesNiliegas/Carrera, LLP, and 2) two separate checks for

CONSENT DECREE
CIV. C 05 3615 JF

PageS

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 6 of 17

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

the identified women made in their respective names and in the amounts (which collectively shall not exceed $30,000.00) provided by the EEOC. The Company shall make payment in the form of a business check, cashier's check, or certified check. The Company will mail the check for Sandra Vargas, Esther Hernandez, and Marivel Hernandez, and TalamantesNiliegas/Carrera, LLP to Virginia Villegas, TalamantesNiliegas/Carrera, LLP, 1550 Bryant Street, Suite 725, San Francisco, CA 94105. The Company will mail the checks for the identified women to Evangelina Fierro Hernandez, Senior Trial Attorney, EEOC 350 The Embarcadero, Suite 500, San Francisco, CA 94105. n. The EEOC will distribute the check to the identified former female employees within ten (10) days of receipt. The Company will forward the checks within ten (10) days of the EEOC forwarding the release to Defendants' counsel. d. Entire Consideration. The Plaintiffs agree that the foregoing amounts shall constitute the entire monetary consideration provided to the Plaintiffs under this Consent Decree and the Settlement Agreement between Intervenors and Defendants, and that Plaintiffs, and their respective attorneys, will not seek any further compensation for any other claimed damage, cost, or attorney's fees in connection with the matters encompassed by this Consent Decree. SPECIFIC INJUNCTIVE RELIEF Zero-Tolerance The Company affirms the following "Statement of Zero-Tolerance Policy and Equality Objectives":

CONSENT DECREE elY. C 05 3615 JF

Page 6

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 7 of 17

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

The Company is finnly 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 finnly respond to any acts of harassment and retaliation of which the company becomes aware; to imposing appropriate discipline designed to strongly deter future acts of harassment or retaliation; and to actively monitor its workplace in order to ensure tolerance, respect and dignity for all employees. This paragraph does not create any individual contractual or common law causes of action or other rights that would not otherwise exist under statute. EEO and Harassment Policies The Company shall revise to the extent necessary EEO & harassment policies, within thirty (30) days of signing the Consent Decree, such that the policies: (i) include definitions of discriminatory harassment, with specific reference to harassment based on sex; (ii) include examples to supplement the definitions of harassment based on sex; (iii) provide for appropriate discipline and/or corrective action for incidents of discriminatory harassment designed to deter future acts of harassment; (iv) include strong non-retaliation language with examples to supplement the definition of retaliation; (v) provide for appropriate discipline for incidents of retaliation designed to deter future acts of retaliation; (vi) provide that complaints of harassment and/or retaliation will be accepted irrespective of whether they are made verbally or in writing; (vii) provide a reasonable timetable for commencing an investigation after a complaint is made or received and for

CONSENT DECREE
CIV. C 05 3615 JF

Page?

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 8 of 17

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

appropriate remedial action, if warranted, to be taken upon conclusion of an

investigation; and (viii) indicate that, promptly upon the conclusion ofthe

investigation of a complaint, the Company will communicate to the complaining

party the results of the investigation and the remedial actions taken or proposed, if

any.

b. The Company shall effectively disseminate its revised policies and

procedures in English and Spanish by:

I.

Distributing copies of the policy to all current employees within 30

days of its adoption;

ll. Giving a copy of the policy to and reviewing the policy with all

new employees upon the employees' hire.

c. The Company will submit a copy of the revised EEO and harassment

policies to EEOC at the same time it submits the report on the completion

of training as described below.

Complaint Procedure.

The Company shall develop a complaint procedure designed to encourage employees to

come forward with complaints about violations of its harassment policy. As part of the

policy, the Company shall provide its employees with convenient, confidential and

reliable mechanisms for reporting incidents ofharassment and retaliation. The

Company's complaint procedure and harassment policy shall notify employees that they

can lodge a complaint with their immediate supervisor, restaurant consultant, or a

Company Corporate Officer, and shall provide the name and telephone numbers for such

individuals. Contact information for the restaurant consultant and Company Corporate

CONSENT DECREE elv. C os 3615 JF

PageB

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 9 of 17

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

Officer shall also be continuously posted in a prominent place at the Company's business location in Sunnyvale, California.
a. The Company will submit a copy of the complaint procedures to the EEOC twenty (20) days before the completion of training as required below.
Posting. The Notice is attached hereto as Exhibit A, outlines the terms ofthe non-monetary aspects of the Consent Decree. It shall remain posted in English and Spanish, in a clearly visible location frequented by employees at the Company's restaurant in Sunnyvale, California during the term of this Consent Decree. The Company shall take all reasonable steps to ensure that the posting is not altered, defaced or covered by any other material. If the notice becomes defaced or illegible, the Company shall replace it. The Company shall certifY to the EEOC in writing within ten (10) business days after entry ofthe Decree that the Notice has been properly posted. Distribution of Anti-Harassment Policy. Within thirty (30) days ofthe entry ofthis Consent Decree, the Company shall issue to all employees, supervisors and managers at its restaurant its anti-harassment policy and procedure statement, in English and Spanish, and each such person shall be asked to sign an acknowledgment that they have received and read the policy. The same acknowledgment shall be required of all newly hired employees at the start oftheir employment. Training of Employees. The Company shall provide and require all current and new employees to attend antiharassment training once every year throughout the duration ofthis Consent Decree. The

CONSENT DECREE elv. C 053615 JF

Poge9

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 10 of 17

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

purpose of said training shall be to give participants an understanding of harassment issues, particularly sexual harassment, including but not limited to what constitutes sexual harassment, sources oflegal protection for sexual harassment victims, the employees' obligation to report sexual harassment, the employer's obligation to take preventive, investigative and remedial action with respect to harassment complaints, and to review company policies (including discipline policies) and practices related to sexual harassment and retaliation with Company employees. The training will be given in both English and Spanish. Training Logistics. The content, method of training and size of training classes is subject to approval by the Commission which approval shall not be unreasonably withheld and which shall take into consideration the Company's operational needs. The Company agrees to provide a description of each training program to counsel for the Commission no later than twenty (20) days before the training programs are scheduled to be held. Acknowledgment of Training Attendance. All persons attending mandatory anti-harassment training pursuant to this Consent Decree shall sign an acknowledgment oftheir attendance at the training, the date thereof, and their position with the company. The Company shall retain the originals ofthese acknowledgments and provide the EEOC with a copy thereof each year. Expungement of Records aud Disclosure oflnformation Regarding Sandra Vargas. Esther Hernandez, Marivel Hernandez and Claimants' Employment
a. The Company shall not disclose any information or make references to any charges of discrimination or this lawsuit in responding to employment reference

CONSENT DECREE CIV. C O~ 3615 JF

Poge 10

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 11 of 17

1

requests for information about Sandra Vargas, Esther Hernandez, Marivel

2

Hernandez, and the identified similarly situated women.

3 b. The Company shall expunge from Sandra Vargas', Esther Hernandez', Marivel
4

5

Hernandez', and the identified similarly situated women's personnel file any

6

references to a charge of discrimination against the Company and this lawsuit.

7

c. The Company shall modify Sandra Vargas', Esther Hernandez', Marivel

8
Hernandez', and the identified similarly situated women's personnel file such that
9 the reason for their separation from employment is officially reported as a
10

11

resignation.

12

d. The Company shall expunge from Sandra Vargas' personnel file all disciplinary

13

notices.

14
e. From the date of entry of this Consent Decree, the Company shall not disclose in
15
response to inquiries from potential employers, any information regarding Sandra
16

17

Vargas, Esther Hernandez, Marivel Hernandez, and the identified similarly

18

situated women's employment with the Company except as follows:

19

1.

In response to a specific inquiry, the Company may disclose Sandra

20
Vargas', Esther Hernandez', Marivel Hernandez', and identified former
21
female employees' dates of employment, position held and final rate of
22

23

pay;

24

11. The Company may report any information as required by law to state or

25

federal authorities;

26
111. The Company may disclose information under Court order; 27

28

IV. Within ten (10) days from the date of entry of this Consent Decree, the

CONSENT DECREE elY. C 053615 JF

Page 11

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 12 of 17

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

Company shall provide Sandra Vargas, Esther Hernandez, Marivel

Hernandez, and similarly situated women with a letter of reference which

would state her dates of employment and positions held. The original letter

of references shall be sent to Evangelina Fierro Hernandez, Senior Trial

Attorney, EEOC, 350 The Embarcadero, Suite 500, San Francisco, CA

94105.

v. Jorge Garcia shall issue a letter of apology to Sandra Vargas, Esther

Hernandez and Marivel Hernandez.

Reports to the Commission

a. Training Report:

Within thirty (30) days of completion of the training required by this Consent

Decree, the Company will send the EEOC verification of its completion of

harassment training for its employees.

b. Sexual Harassment Complaint Reports: Within ninety (90) days after entry of this

Decree, the Company will mail to counsel for the Commission a report containing

the following information and documentation:

1.

Copies of all sexual harassment complaints, other than the complaints that

are the subject of this Lawsuit, and a statement regarding the result of the

investigation of each complaint. Additionally, the Company will identify

the name, address and telephone number ofthe complainant and identify

the person who received the complaint. A copy of all records, documents

and other writings relevant to such complaints and investigations shall be

maintained by the Company during the period of the Consent Decree and

CONSENT DECREE CIV. C 053615 JF

Page 12

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 13 of 17

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

will be made available to the Commission within ten (10) business days following a written request from the Commission. 11. On the fifth day of January and June of each year during the duration of this Consent Decree, the Company will mail to counsel for the Commission a report containing the above documentation and information. Policies Designed to Promote Supervisor Accountability a. Communication of Potential Discipline for Engaging in Harassment. The Company shall impose appropriate discipline, up to and including termination, suspension without payor demotion, upon any supervisor or manager who engages in sexual harassment or knowingly permits any such conduct to occur in his or her work area or among employees under his or her supervision, or who retaliates against any person who complains or participates in any investigation or proceeding concerning such conduct. The Company shall communicate this policy to all of its supervisors and managers. b. Communication of Duty to Actively Monitor Worksite. The Company shall advise all managers and supervisors of their duty to actively monitor their work areas to ensure employee compliance with the company's antiharassment policy, and to report any incidents and/or complaints of harassment and/or retaliation of which they become aware to the individuals charged with handling such complaints. RETENTION OF JURISDICTION AND EXPIRATION OF CONSENT DECREE a. This Consent Decree shall terminate three (3) years from the date of entry by the Court, unless the Commission petitions this Court for an extension of the Decree

CONSENT DECREE
CIV. C 05 3615 J.'

Page 13

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 14 of 17

1

because of noncompliance by the Company. If the Commission detennines that

2
the Company has not complied with the Consent Decree, the Commission will
3
provide written notification of the alleged breach to the Company and will not
4

5

petition the Court for enforcement sooner than thirty (30) days after providing

6

written notification. The thirty-day period following written notice shall be used

7

by the parties for good faith efforts to resolve the issue. Ifthe Commission

8
petitions the Court and the Court finds the Company to be in substantial violation
9
of the tenns ofthe Decree, the Court may extend this Consent Decree
10

11

b. Except as provided in the preceding paragraph, three (3) years after the entry of

12

this Consent Decree, this lawsuit will be dismissed with prejudice, provided that

13

the Company has complied substantially with the tenns ofthis Consent Decree.

14
The Company will be deemed to have complied substantially if the Court has not
15
made any findings or orders during the tenn of the Decree that the Company has
16

17

failed to comply with any of the tenns of this Decree. This Consent Decree will

18

automatically expire without further Court Order.

19 II
20
II
21
II
22
23 II

24 II

25 II
26
II
27
II
28

CONSENT DECREE
CIV.COS36ISJF

Page 14

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 15 of 17

1 On Behalf of Plaintiff Commission
2
3 Dated: September _ _, 2006
4
5 6 William R Tamayo
Regional Attorney 7
8
9 Jonathan T. Peck
10 Supervisory Trial Attorney 11
12
13 Evangelina Fierro Hernandez 14 Senior Trial Attorney
U.S. EQUAL EMPLOYMENT 15 OPPORTUNITY COMMISSION
16 17
IT IS SO ORDERED:
18 19
20 Dated:_ _9/_ 22/_ 06 _ _ __
21 22 23 24 25
26
27 28
CONSENT DECREE ClY. C 05 3615 JF

On Behalf of Defendants: Dated: September _ _, 2006
Bruce J. Boehm McKAY, BURTON & THURMAN Attorney for Harman-Chiu and Harman Management On Behalf of Plaintiff-Intervenors
Virginia Villegas TALAMANTESNILLEGAS/ CARRERA, LLP Attorney for Intervenors
Jeremy Fogel United States istrict Court Judge
Page 15

Case 5:05-cv-03615-JF Document 48 Filed 09/26/2006 Page 16 of 17

1 On Behalf of Plaintiff Commission
/r:~006 2
3 Dated: September
4
5 6 7 8 9 10 11
12
13 yang a Fi 0 14 Senior Trial Attorney
U.S. EQUAL EMPLOYMENT 15 OPPORTUNITY COMMISSION 16 17
IT IS SO ORDERED:
18 19
20 Dated:_ _ _ _ _ _ __
21
22 23
24
25 26
27 28
CONSENT DECREE CIV. C 05 3615 JF

On Behalf of Defendants: Dated: September _ _, 2006 Bruce J. Boehm McKAY, BURTON & THURMAN Attorney for Harman-Chiu and Harman Management On Behalf of Plaintiff-Intervenors
Jeremy Fogel United States District Court Judge
PagelS

SEP-18-2006 CHOaNse051::0035-cPvH-0M3C6KA1Y5-BJUFRTOND&ocTuHmUReMnAtN48 FFilAeXd N0O9./2860/125020164252Page 17 of 17 P. 02

1 On BehalfofPlaintiffCnmmissiOli 2 3 Dated: Scptcmbc:r ,2006

"
5 6 William R. Tamayo
Regional Attorney 7

8

9 Jonathan T. Peck
10 SupervisoIy Trial Attomcy
11

12

13 Bvangeline Fierro Hemaudcz

14

Semor Trial Attomey U.S. EQUAL EMPLOYMENT

15 OPPORTUNlTY COMMISSION

16

17
IT IS SO ORDBRBD:
18

19 20 Dated:

21

22

23

24

25

26

27

28

C,.,O...N"U"NA" r~ J~ )X~~ C_RR

On BehalfofDemJdants: Dated: September /) , 2006
~(Lt:Jv_
Bruce J. BoebJn McKAY, BURTON &; TIRJRMAN Attorney for HarmaJ1..Chiu 8IId Hannan Management On BehalfofPlaintiff-Intcrvczwrs
Virginia Villegas TALAMANTBS/VILI.BOAS/ CARRERA, u.p Attomey fur lntervcnors
Je:mny Fogel United States District Court Judge
- --

 
 Case: 5:05-cv-03615-JF As of: 02/24/2017 10:47 PM PST 1 of 6
ADRMOP,CLOSED,E−Filing,MEDTERM
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:05−cv−03615−JF

Equal Employment Opportunity Commision v. Hartman−Chiu, Inc. Assigned to: Hon. Jeremy Fogel Referred to: Magistrate Judge Howard R. Lloyd Cause: 28:1331 Fed. Question: Employment Discrimination
Plaintiff

Date Filed: 09/08/2005 Date Terminated: 06/06/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commision

represented by William Robert Tamayo U.S. EEOC 450 Golden Gate Ave POB 36025 San Francisco, CA 94102 415−522−3425 Fax: 415−625−5657 Email: william.tamayo@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Evangelina Fierro Hernandez U.S. Equal Employment Opportunity Commission San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, CA 94105−1260 415−625−5622 Fax: 415−625−5657 Email: Evangelina.Hernandez@eeoc.gov ATTORNEY TO BE NOTICED

Jonathan T. Peck U.S. EEOC 450 Golden Gate Ave POB 36025 San Francisco, CA 94102 415−522−3425 Fax: 415−625−5657 Email: Jonathan.Peck@eeoc.gov ATTORNEY TO BE NOTICED

V.
Intervenor Pla
Sandra Vargas Plaintiff/Intervenor

represented by Jennifer Abby Reisch Equal Rights Advocates 1170 Market Street Suite 700 San Francisco, CA 94102 415−621−0672 x384 Fax: 415−621−6744 Email: jreisch@equalrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Virginia Villegas Talamantes Villegas Carrera, LLP 1550 Bryant St Suite 725

Case: 5:05-cv-03615-JF As of: 02/24/2017 10:47 PM PST 2 of 6

San Francisco, CA 94103 415−861−9600 Fax: 415−861−9622 Email: virginia@e−licenciados.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Pla Ester Hernandez

represented by Jennifer Abby Reisch (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pla Marivel Hernandez

represented by Jennifer Abby Reisch (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Hartman−Chiu, Inc. doing business as KFC/Taco Bell
Defendant HARMAN−MANAGEMENT CORPORATION
Defendant Mr. Jorge Garcia

represented by Bruce J. Boehm McKay, Burton & Thurman 170 South Main Street Suite 800 Salt Lake City, UT 84133−1102 801/521−4135 Fax: 801/521−4252 Email: bruce@mbt−law.com ATTORNEY TO BE NOTICED
David L. Bird McKay Burton & Thurman 170 South Main Street Suite 800 Salt Lake City, UT 84101 801−521−4135 Fax: 801−521−4252 ATTORNEY TO BE NOTICED
represented by Bruce J. Boehm (See above for address) ATTORNEY TO BE NOTICED
David L. Bird (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/08/2005
09/08/2005

# Docket Text
1 COMPLAINT for Civil Rights − Employment Discrimination (Summons Issued); juiry demand; (Fee Waived) against Hartman−Chiu, Inc.. Filed byEqual Employment Opportunity Commision. (bw, COURT STAFF) (Filed on 9/8/2005) Additional attachment(s) added on 9/13/2005 (bw, COURT STAFF). (Entered: 09/09/2005)
2 ADR SCHEDULING ORDER: Case Management Statement due by 1/3/2006. Case Management Conference set for 1/10/2006 01:30 PM. (Attachments: # 1 Standing Order)(bw, COURT STAFF) (Filed on 9/8/2005) (Entered: 09/09/2005)

Case: 5:05-cv-03615-JF As of: 02/24/2017 10:47 PM PST 3 of 6

09/08/2005 09/09/2005 11/21/2005
11/21/2005
11/21/2005 11/23/2005 11/23/2005
11/23/2005 11/23/2005
11/30/2005 12/02/2005
12/20/2005 12/28/2005
12/28/2005 12/29/2005 01/04/2006 01/04/2006

CASE DESIGNATED for Electronic Filing. (bw, COURT STAFF) (Filed on 9/8/2005) (Entered: 09/09/2005)
Summons Issued as to Hartman−Chiu, Inc.. (bw, COURT STAFF) (Filed on 9/9/2005) (Entered: 09/09/2005)
3 *** FILED IN ERROR. PLEASE SEE DOCKET # 4 . *** MOTION to Intervene as Party Plaintiffs filed by Sandra Vargas. Motion Hearing set for 1/3/2006 10:00 AM in Courtroom 2, 5th Floor, San Jose. (Reisch, Jennifer) (Filed on 11/21/2005) Modified on 11/21/2005 (ewn, COURT STAFF). (Entered: 11/21/2005)
4 MOTION to Intervene as Party Plaintiffs filed by Sandra Vargas. Motion Hearing set for 1/3/2006 10:00 AM in Courtroom 2, 5th Floor, San Jose. (Attachments: # 1 Proposed Order Granting Leave to Intervene# 2 Declaration ISO Motion for Leave to Intervene# 3 Exhibit Complaint in Intervention# 4 Notice of Motion and Motion for Leave to Intervene)(Reisch, Jennifer) (Filed on 11/21/2005) (Entered: 11/21/2005)
5 CERTIFICATE OF SERVICE by Sandra Vargas re 4 MOTION to Intervene as Party Plaintiffs (Reisch, Jennifer) (Filed on 11/21/2005) (Entered: 11/21/2005)
6 ANSWER to Complaint byHartman−Chiu, Inc.. (Boehm, Bruce) (Filed on 11/23/2005) (Entered: 11/23/2005)
7 Declination to Proceed Before a U.S. Magistrate Judge by Hartman−Chiu, Inc. Declination to Proceed Before a Magistrate Judge and Request for Reassignment to a United States District Judge. (Boehm, Bruce) (Filed on 11/23/2005) (Entered: 11/23/2005)
8 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (pmc, COURT STAFF) (Filed on 11/23/2005) (Entered: 11/23/2005)
9 ORDER REASSIGNING CASE. Case reassigned to Judge Jeremy Fogel for all further proceedings. Magistrate Judge Howard R. Lloyd remains as the referraljudge. Signed by Executive Committee on November 23, 2005. (bw, COURT STAFF) (Filed on 11/23/2005) (Entered: 11/23/2005)
10 CLERK'S NOTICE Case Management Conference set for 1/13/2006 at 10:30 AM. (dlm, COURT STAFF) (Filed on 11/30/2005) (Entered: 11/30/2005)
11 Renotice motion hearing re 4 MOTION to Intervene as Party Plaintiffs, 3 MOTION to Intervene as Party Plaintiffs filed bySandra Vargas. Motion Hearing set for 2/3/2006 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Affidavit Proof of Service)(Reisch, Jennifer) (Filed on 12/2/2005) (Entered: 12/02/2005)
12 STIPULATION and (Proposed) Order Selecting ADR Process by Equal Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 12/20/2005) (Entered: 12/20/2005)
13 MOTION to Amend/Correct Complaint filed by Equal Employment Opportunity Commision. Motion Hearing set for 2/3/2006 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 (Proposed) Amended Complaint)(Hernandez, Evangelina) (Filed on 12/28/2005) (Entered: 12/28/2005)
14 Proposed Order to Plaintiff EEOC's Motion to Amend Complaint by Equal Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 12/28/2005) (Entered: 12/28/2005)
15 ACKNOWLEDGEMENT OF SERVICE Executed October 21, 2005 Acknowledgement filed by Equal Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 12/29/2005) (Entered: 12/29/2005)
16 JOINT CASE MANAGEMENT STATEMENT and Proposed Order filed by Equal Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 1/4/2006) (Entered: 01/04/2006)
17 ORDER re 12 Stipulation filed by Equal Employment Opportunity Commision,. Signed by Judge Jeremy Fogel on 12/28/05. (jfsec, COURT STAFF) (Filed on 1/4/2006) (Entered: 01/04/2006)

Case: 5:05-cv-03615-JF As of: 02/24/2017 10:47 PM PST 4 of 6

01/12/2006 01/12/2006 01/18/2006
01/19/2006 01/20/2006
02/02/2006 02/13/2006 02/17/2006 02/18/2006 02/21/2006
03/06/2006 03/06/2006 04/03/2006 04/04/2006 04/04/2006 04/06/2006 04/06/2006 04/06/2006

18 Statement of Non−Opposition To Plaintiff Intervenors Motion to Intervene filed byHartman−Chiu, Inc.. (Boehm, Bruce) (Filed on 1/12/2006) (Entered: 01/12/2006)
19 Statement of Non−Opposition To Plaintiff's Motion to Amend Complaint filed byHartman−Chiu, Inc.. (Boehm, Bruce) (Filed on 1/12/2006) (Entered: 01/12/2006)
20 Minute Entry: Initial Case Management Conference held on 1/13/2006 before Judge Jeremy Fogel (Date Filed: 1/18/2006). Continued to 5/12/2006 at 10:30 a.m. for further case management conference. (Court Reporter Not reported.) (dlm, COURT STAFF) (Date Filed: 1/18/2006) (Entered: 01/18/2006)
21 ADR Clerk's Notice Appointing Kristen W. Maloney as Mediator dated 1/19/2006. (af, COURT STAFF) (Filed on 1/19/2006) (Entered: 01/19/2006)
22 Letter dated 1/20/2006 from Mediator, Kristen W. Maloney, confirming her appointment and setting pre−session conference call on 2/8/2006 at 9:00 a.m. Counsel to confirm their availability for the conference call. (af, COURT STAFF) (Filed on 1/20/2006) (Entered: 01/23/2006)
23 ORDER by Judge Jeremy Fogel granting 13 Motion to Amend/Correct ; Plaintiff is required to E−FILE the amended document (jfsec, COURT STAFF) (Filed on 2/2/2006) (Entered: 02/02/2006)
24 ORDER GRANTING MOTION FOR LEAVE TO INTERVENE AS PARTY PLAINTIFFS by Judge Jeremy Fogel granting [3, 4] Motion to Intervene (jfsec, COURT STAFF) (Filed on 2/13/2006) (Entered: 02/13/2006)
25 First Intervenor COMPLAINT vs. Harman−Chiu, Inc., et al. Filed bySandra Vargas. (Villegas, Virginia) (Filed on 2/17/2006) (Entered: 02/17/2006)
26 AMENDED COMPLAINT against all defendants. Filed byEqual Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 2/18/2006) (Entered: 02/18/2006)
Set/Reset Hearings: Mediation Hearing set for 3/30/2006 09:30 AM., in the EEOC's office 350 The Embarcadero, Suite 500, San Francisco. Written statements exchanged and delivered to mediator by 3/23/2006. (af, COURT STAFF) (Filed on 2/21/2006) (Entered: 02/21/2006)
27 Harman−Chiu, Inc.'s ANSWER to Intervenor Complaint Answer to Complaint In Intervention byHartman−Chiu, Inc.. (Boehm, Bruce) (Filed on 3/6/2006) (Entered: 03/06/2006)
28 Defendant Harman−Chiu, Inc.'s Answer to the EEOC's First Amended Complaint ANSWER to Amended Complaint byHartman−Chiu, Inc.. (Boehm, Bruce) (Filed on 3/6/2006) (Entered: 03/06/2006)
29 STIPULATION Stipulated Motion and [Proposed] Order to Extend Deadline for Completing Mediation by HARMAN−MANAGEMENT CORPORATION. (Boehm, Bruce) (Filed on 4/3/2006) (Entered: 04/03/2006)
30 Letter to counsel dated 3/15/2006 from Mediator, Kristen W. Maloney, setting the mediation session on 5/3/2006 at 9:30 a.m. (af, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/04/2006)
Set/Reset Hearings: Mediation Hearing set for 5/3/2006 09:30 AM. Please take note this date is beyond the mediation deadline and is subject to approval by the court. See # 29 . (af, COURT STAFF) (Filed on 4/4/2006) (Entered: 04/04/2006)
31 ORDER GRANTING REQUEST TO EXTEND DEADLINE TO COMPLETE MEDIATION. Signed by Judge Jeremy Fogel on 4/4/06. (jfsec, COURT STAFF) (Filed on 4/6/2006) (Entered: 04/06/2006)
32 MOTION for Attorney David L. Bird for leave to appear in Pro Hac Vice (FILING FEE PAID) filed by Hartman−Chiu, Inc., HARMAN−MANAGEMENT CORPORATION. (gm, COURT STAFF) (Filed on 4/6/2006) (Entered: 04/07/2006)
Received Order re 32 MOTION for leave to appear in Pro Hac Vice by Hartman−Chiu, Inc., HARMAN−MANAGEMENT CORPORATION. (gm, COURT STAFF) (Filed on 4/6/2006) (Entered: 04/07/2006)

Case: 5:05-cv-03615-JF As of: 02/24/2017 10:47 PM PST 5 of 6

04/06/2006 04/18/2006 04/20/2006 04/28/2006 05/02/2006 05/03/2006 05/04/2006 05/05/2006 05/12/2006
05/17/2006 05/17/2006 05/25/2006 06/06/2006 08/31/2006 09/07/2006 09/11/2006
09/18/2006
09/26/2006

33 CERTIFICATE OF SERVICE by Hartman−Chiu, Inc., HARMAN−MANAGEMENT CORPORATION re 32 MOTION for leave to appear in Pro Hac Vice, Received Order (gm, COURT STAFF) (Filed on 4/6/2006) (Entered: 04/07/2006)
ADR Remark: Mediation deadline has been extended by 60 days see # 31 . (af, COURT STAFF) (Filed on 4/18/2006) (Entered: 04/18/2006)
Set/Reset Hearings: Mediation Hearing set for 5/3/2006 09:30 AM. Mediation statements due on 4/26/2006. (af, COURT STAFF) (Filed on 4/20/2006) (Entered: 04/20/2006)
34 STIPULATION and Proposed Order by Equal Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 4/28/2006) (Entered: 04/28/2006)
35 CLERK'S NOTICE Case Management Conference RESCHEDULED for 5/12/2006 02:30 PM. (jfsec, COURT STAFF) (Filed on 5/2/2006) (Entered: 05/02/2006)
36 ORDER EXTENDING TIME TO FILE JOINT CASE MANAGEMENT CONFERENCE STATEMENT. Signed by Judge Jeremy Fogel on 5/2/06. (jfsec, COURT STAFF) (Filed on 5/3/2006) (Entered: 05/03/2006)
37 ORDER by Judge Jeremy Fogel granting 32 Motion for Attorney David L. Bird for admission Pro Hac Vice (gm, COURT STAFF) (Filed on 5/4/2006) (Entered: 05/05/2006)
38 JOINT CASE MANAGEMENT STATEMENT filed by Equal Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 5/5/2006) (Entered: 05/05/2006)
41 Minute Entry: Further Case Management Conference held on 5/12/2006 before Judge Jeremy Fogel (Date Filed: 5/12/2006). Continued to 6/23/2006 at 10:30 a.m. for further case management conference. (Court Reporter Not reported.) (dlm, COURT STAFF) (Date Filed: 5/12/2006) (Entered: 05/18/2006)
39 ANSWER TO THIRD PARTY COMPLAINT 25 Intervenor Complaint Answer to Complaint in Intervention byHARMAN−MANAGEMENT CORPORATION. (Boehm, Bruce) (Filed on 5/17/2006) (Entered: 05/17/2006)
40 ANSWER TO THIRD PARTY COMPLAINT 25 Intervenor Complaint Answer to Complaint in Intervention byJorge Garcia. (Boehm, Bruce) (Filed on 5/17/2006) (Entered: 05/17/2006)
42 CERTIFICATION OF MEDIATION Session on 5/3/2006 filed by Mediator, Kristen W. Maloney, dated 5/18/2006. Case fully settled, mediation complete. (af, COURT STAFF) (Filed on 5/25/2006) (Entered: 05/25/2006)
43 ORDER DISMISSING CASE. Signed by Judge Jeremy Fogel on 6/5/06. (dlm, COURT STAFF) (Filed on 6/6/2006) (Entered: 06/06/2006)
44 STATUS REPORT Regarding The Resolution of the Case by Equal Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 8/31/2006) (Entered: 08/31/2006)
45 STIPULATION To File Consent Decree By September 18, 2006 by Equal Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 9/7/2006) (Entered: 09/07/2006)
46 ORDER GRANTING STIPULATED REQUEST TO EXTEND TIME TO FILE THE CONSENT DECREE TO SEPTEMBER 18, 2006 re 45 Stipulation filed by Equal Employment Opportunity Commision,. Signed by Judge Jeremy Fogel on 9/11/06. (jfsec, COURT STAFF) (Filed on 9/11/2006) (Entered: 09/11/2006)
47 SETTLEMENT AGREEMENT Consent Decree by Equal Employment Opportunity Commision, Equal Employment Opportunity Commision. (Attachments: # 1 Exhibit Exhibit A− Notice)(Hernandez, Evangelina) (Filed on 9/18/2006) (Entered: 09/18/2006)
48 CONSENT DECREE re 47 Settlement Agreement filed by Equal Employment Opportunity Commision,. Signed by Judge Jeremy Fogel on 9/22/06. (jfsec, COURT STAFF) (Filed on 9/26/2006) (Entered: 09/26/2006)

Case: 5:05-cv-03615-JF As of: 02/24/2017 10:47 PM PST 6 of 6

10/05/2006 10/13/2006
10/19/2006 10/25/2006 11/13/2007 11/05/2009 11/17/2009

49 STIPULATION of Dismissal and Order for Dismissal with Prejudice by Sandra Vargas, Ester Hernandez, Marivel Hernandez. (Reisch, Jennifer) (Filed on 10/5/2006) (Entered: 10/05/2006)
50 ORDER DISMISSING THE MATTER WITH PREJUDICE re 49 Stipulation of Dismissal filed by Sandra Vargas,, Ester Hernandez,, Marivel Hernandez,. Signed by Judge Jeremy Fogel on 10/13/06. (jfsec, COURT STAFF) (Filed on 10/13/2006) (Entered: 10/13/2006)
51 STIPULATION of Dismissal Stipulation and Order for Dismissal With Prejudice by HARMAN−MANAGEMENT CORPORATION. (Boehm, Bruce) (Filed on 10/19/2006) (Entered: 10/19/2006)
52 ORDER OF DISMISSAL re 51 Stipulation of Dismissal filed by HARMAN−MANAGEMENT CORPORATION,. Signed by Judge Jeremy Fogel on 10/24/06. (jfsec, COURT STAFF) (Filed on 10/25/2006) (Entered: 10/25/2006)
FILE located at Federal Records Center (FRC), San Bruno, CA: Accession No: 021−07−0061, Location No: 735496, Box No: 146. (mpb, COURT STAFF) (Filed on 11/13/2007) (Entered: 11/13/2007)
53 MOTION to Dismiss filed by Equal Employment Opportunity Commision. (Hernandez, Evangelina) (Filed on 11/5/2009) (Entered: 11/05/2009)
54 ORDER by Judge Jeremy Fogel granting 53 Motion to Dismiss (dlm, COURT STAFF) (Filed on 11/17/2009) (Entered: 11/17/2009)