IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
. Plaintiff, v.
CACTUS-LANCASTER, LLC, Defendant.

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Civil Action No. 04-CV-4584

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FIRST AMENDED COMPLAINT

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JURY TRIAL DEMAND

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NATURE OF ACTION

The United States Equal Employment OpportunityCommission (the "Commission'), brings

this action under Title VII ofthe Civil Rights Act of 1964 and Title I ofthe Civil Rights Act ofl991

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

appropriate relief to Brenda Zankl, a class ofsimilarly situated female employees, and Bonita Axe,

who were adversely affected by such unlawful employment practices while employed byDefendant,

Cactus-Lancaster, LLC. As alleged with greater particularity in paragraphs 7 and 8 below, the

Commission alleges that Brenda Zankl, and a class of similarly situated female employees, were

sexually harassed by the then General Manager, Neal Mease. The Commission also alleges that the

sexually harassing environment was so intolerable that some class members were forced to resign

their position. The Commission further alleges that Bonita Axe complained about the sexual

harassment and that Defendant retaliated against her by reducing her hours, tenninating her

employment, and sending her a letter via certified mail threatening her that a summons would be

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issued charging her with trespass if she entered the facility. As a result of Defendant's discriminatory conduct, Brenda Zankl, a class of similarly situated female employees, and Bonita Axe have suffered damages, including lost wages and emotional distress.
JURISDICTION AND VENUE I. Jurisdiction ofthis Court is invoked pursuant to 28 U.s.c. §§ 451, 1331, 1337, 1343
and 1345. This action is authorized and instituted pursuant to § 706(f)(1) and (3) ofTitle vn ofthe
Civil Rights Act of1964, as amended, 42 U.S.C. § 2000e-5(f)(I) and (3) ("Title VII'" and § 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a.
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Eastern District ofPennsylvania.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, inteIpretation and enforcement ofTitle VII, and is expressly authorized to bring this action by § 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times mentioned herein, Defendant, Cactus-Lancaster, LLC, (the "Employer"), has continuously been doing business in the Commonwealth ofPennsylvania and the City of Lancaster, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of § 701(b), (g) and (h) ofTitle VII, 42 U.S.c. §§ 2000e(b), (g) and (h).
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STATEMENT OF CLAIMS 6. More than thirtydays prior to the institution ofthis lawsuit,'BrendaZankl and Bonita Axe filed charges of discrimination with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution ofthis lawsuit have been fulfilled. 7. Since at least September 2000, Defendant Employer has engaged in unlawful employment practices at its Lancaster, Pennsylvania location in violation of§ 703(a)(l) ofTitle VIT, 42 U.S.C. § 2000e-2(a)(1), by subjecting Brenda Zankl and a class of similarly situated female employees, to a sexually hostile work environment. The unlawful employment practices include, but are not limited to, the following: (a) Brenda Zankl began working for Defendant Employer as a waitstaff employee in October 2001 until she resigned in Apri12003. She resumed working for Defendant Employer from February 15, 2004 through May 5, 2004. (b) Defendant Employer's then General Manager, Neal Mease, repeatedly made unwelcome and sexually suggestive innuendoes, remarks, and comments, including comments about her body parts, made requests for oral sex and innuendoes to her about oral sex, touched her buttocks, rubbed her shoulders and rubbed against her. (c) Despite Ms. Zankl's complaints to her supervisor about Neal Mease's behavior, Defendant Employer did not take remedial action to stop the sexual harassment. (d) Neal Mease also sexually harassed a class of similarly situated female employees, subjecting them to physical touching and inappropriate and sexually suggestive comments, remarks, and sexual requests. Some of the employees who were subjected to unwelcome sexual harassment were teenagers or under the age of 21. Employees complained about the sexual harassment. One
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Supervisor wrote a letter to one ofDefendant Employer's owners, Robert Katz, in about September 2002 to advise him of the harassment. One employee's mother even complained to Defendant Employer's corporate headquarters. However, Defendant Employer did not take appropriate remedial action to stop the sexual harassment.
(e) Some class members were constructively discharged as aresult ofthe unlawful sexual harassment.
8. Since at least January 31, 2003, Defendant Employer has engaged in unlawful employment practices at its Lancaster, Pennsylvania facility in violation of Section 704(a) of Title VII, 42 U.S.C. Section 2000e-2(a)(I), by discriminating against Bonita Axe on the basis of retaliation. The unlawful employment practices include the following:
(a) In March 2001, Ms. Axe was initially hired as a waitstaffemployee and was let go in February 2001. Defendant Employer rehired her as a waitstaff employee on or about October 5, 2002.
(b) During her employment, Ms. Axe observed the then General Manager, Neal Mease, inappropriately touch female employees and make offensive comments and sexual innuendoes to female employees. Employees also told Ms. Axe about, or discussed in her presence, the unwelcome touching and sexual remarks made by Mr. Mease.
(c) On or about January 31, 2003, Ms. Axe went to Mr. Mease's office and told him that she knew that he had made inappropriate sexual remarks and sexual requests to female employees and that she was reporting his behavior as violating Defendant Employer's policy against sexual harassment. By the end of the meeting, Ms. Axe believed that Mr. Mease would stop sexually harassing female employees. Mr. Mease told her that he would place her on the work schedule for
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the following week. (d) February 11, 2003 was the last day Ms. Axe was scheduled to work. For a period of
at least five weeks thereafter, Ms. Axe called Mr. Mease weekly to ask if she would be scheduled to work that week. Mr. Mease claimed that he did not have any available work but advised her to call the following week. Defendant Employer reduced Ms. Axe's hours in retaliation for her complaint about the sexual harassment of female employees at the restaurant.
(e) On March 24, 2003, Defendant Employer telIDinated Ms. Axe's employment in retaliation for engaging in protected activity when she opposed employment practices that she believed to be discriminatory under Title VII. Defendant Employer claimed that Ms. Axe was telIDinated for a purported lack ofwork. However, Defendant Employer hired nwnerous individuals as waitstaff after Ms. Axe's tennination in March 2003 and hired additional employees in other capacities, such as Hostess and in the bakery.
(f) On April 4, 2003, Ms. Axe received by certified mail a letter from the General Manager, Neal Mease, advising her that her presence at the restaurant:
...is not desired and is hereby prohibited. Your mere appearance at this location will cause a summons to be issued, charging you with a violation of Section 3505(b)(i)Defiaut Trespass, of Chapter 35 of the Peuusylvauia Crimes Code 1104(3), which provides for punishment ofup to one year imprisonment. Be assured that should you ignore this notice, a summons will be issued. A copy of this letter is being retained for use as evidence at any future legal proceeding.
The letter indicated that a copy had been sent to a local police department. Defendant Employer sent Ms. Axe this letter in retaliation for her complaint about the sexual harassment.
9. The effect of the practices complained of in paragraphs 7(a) through (e) above has
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been to deprive Brenda Zankl and a class of similarly situated female employees of equal employment opportunities and otherwise affect adversely their status as employees because oftheir sex.
to. The effect of the practices complained of in paragraphs 8(a) through (f) above has
been to deprive Bonita Axe of equal employment opportunities and otherwise affect her status as an employee because she engaged in protected activity under Title VII.
11. The unlawful employment practices complained of in paragraphs 7(a) through (e) and 8(a) through (1) above were intentional.
12. The unlawful employment practices complained ofin paragraphs 7(a) through (e) and 8(a) through (f) above were done with malice or with reckless indifference to the federally protected rights of Brenda Zankl, a class of similarly situated female employees, and Bonita Axe.
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PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant apennanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in sexual harassment, from retaliating against an employee byredueing an employee's hours, from retaliating against an employee by terminating her employment, and any other employment practice which discriminates on the bases of sex and/or retaliation. B. Order DefendantEmployerto institute and carryout policies, practices, and programs which provide equal employment opportunities for women which eradicate the effects ofits past and present unla\Vfu1 employment practices. C. Order Defendant Employer to make whole Bonita Axe, and class members who were constructively discharged, by providing appropriate back paywith prejudgment interest, in amounts to be determined at trial, reinstatement or front pay in lieu thereof, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices. D. Order Defendant Employer to make whole Brenda Zankl, a class ofsimilarly situated female employees, and Bonita Axe by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 7(a) through (e) and 8(a) through (f) above, in amounts to be determined at trial. E. Order Defendant Employer to make whole BrendaZankl, a class ofsimilarly situated female employees, and Bonita Axe by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained ofin paragraphs 7(a) through (e) and 8(a) through (f) above, including emotional pain, suffering, depression, anxiety, inconvenience, loss of
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enjoyment oflife and humiliation, in amounts to be detennined at trial. F. Order Defendant Employer to pay Brenda Zankl, a class ofsimilarly situated female
employees, and Bonita Axe punitive damages for its malicious and reckless conduct described in paragraphs 7(a) through (e) and 8(a) through (I) above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary proper in the public interest. H. Award the Commission its costs of this action.
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JURY TRIAL DEMAND
The Commission requests ajury trial on all questions of fact raised by its complaint.
Respectfully submitted,
ERIC S. DREIBAND General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington DC 20507
JACQ "'Regional Attorney
J:Q~RN~")
Acting Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Philadelphia District Office 21 South 5th Street, Suite 400 Philadelphia, PA 19106 (215) 440-2686 (direct dial) (215) 440-2848 (FAX)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
v.
CACTUS-LANCASTER, LLC

: : : : : :
O R D E R

CIVIL ACTION NO. 04-4584

AND NOW, TO WIT: This 24th day of June, 2005, it having been reported that the issues between the parties in the above action have been settled and upon Order of the Court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court , it is
ORDERED that the above action is DISMISSED with prejudice, pursuant to agreement of counsel without costs.

BY THE COURT:

Juan R. Sánchez, J.

Civ 2 (8/2000) 41(b).frm

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

* * * ** Civil Action No.: 04-CV-4584-JS

v.

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CACTUS-LANCASTER, LLC,

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Defendant.

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CONSENT DECREE

Introduction

A. This action was instituted by the U.S. Equal Employment Opportunity

Commission ("the EEOC" or "the Commission") on September 29,2004, against Cactus Willies

to enforce provisions of Title VII of the Civil Rights of 1964, as amended, 42 U.S.c. § 2000e et

seq. ("Title VII"). On November 16,2004, the Commission filed an Amended Complaint to

change the name of the Defendant to Cactus-Lancaster, LLC. The Commission alleged that

Cactus-Lancaster, LLC terminated Bonita Axe in retaliation for her opposition to the then

General Manager's sexual harassment of female employees. The Commission further alleged

that the then General Manager subjected Brenda Zankl and a class of similarly situated female

employees to sexual harassment and that some of those women were constructively discharged.

Cactus-Lancaster, LLC denies all of these allegations.

B. This Consent Decree is entered into by and shall be final and binding between the

EEOC and Cactus-Lancaster, LLC, its directors, officers, agents, successors and assigns.

C. The EEOC and Cactus-Lancaster, LLC agree to entry of this Consent Decree, which shall fully and finally resolve all claims the EEOC raised in its Complaint in Civil Action No.04-CV-4584-JS. This Consent Decree shall not constitute either an adjudication of or finding on the merits of the complaint and shall not be construed as an admission by CactusLancaster, LLC of any violation of Title Vll.
Findings D. Having carefully examined the terms and provisions of this Consent Decree, and based on the pleadings, record and stipulations of the parties, the Court finds: (1) it has jurisdiction of the parties and subject matter jurisdiction of this action; and (2) the terms of this Decree are fair, reasonable, equitable and just, and adequately protect the rights of the parties, class members and the public interest. NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:
Non-Discrimination and Non-Retaliation 1. This Court has jurisdiction over the parties and subject matter of this action. 2. Cactus-Lancaster, LLC is enjoined from harassment of any employee on the basis of sex in violation of Title VII. 3. Cactus-Lancaster, LLC is enjoined from engaging in any employment practices which retaliate in any manner against any person, including but not limited to Bonita Axe, Brenda Zankl, and any individual identified or named during this litigation and/or during the EEOC's investigation into the charges filed by Ms. Axe and Ms. Zankl as a claimant, potential claimant, or witness, because of that person's opposition to any practice made an unlawful
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employment practice under Title VII or because that person has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under Title VII.
4. Cactus-Lancaster, LLC shall not divulge, directly or indirectly, to any identifiable employer or potential employer of Bonita Axe, Brenda Zankl, and any individual identified or named during the EEOC's investigation into the charges filed by Ms. Axe and Ms. Zankl as a claimant, potential claimant, or witness, any of the facts or circumstances related to the claims of discrimination against Cactus-Lancaster, LLC in this case or any of the events relating to their participation in the EEOC's investigation or in the litigation of this action.
5. Nothing in this Consent Decree, either by inclusion or exclusion, shall be construed to limit the obligations of Cactus-Lancaster, LLC under Title VII or the EEOC's authority to process or litigate any charge of discrimination now pending, if any, or filed in the future against Cactus-Lancaster, LLC.
Monetary Relief 6. Cactus-Lancaster, LLC agrees to pay monetary relief in the amount of Eighteen Thousand Dollars and No Cents ($18,000.00) in compensatory damages to Bonita Axe, in full settlement of the claims raised on her behalf against Cactus-Lancaster, LLC in the EEOC's Complaint. The monetary relief will be paid in the following manner: within 10 business days after receipt of an executed Release in the form of Exhibit 1 and the Court's entry of the Consent Decree, whichever date is later, Cactus-Lancaster, LLC will pay Ms. Axe Nine Thousand Dollars and Zero Cents ($9,000.00); on January 1, 2006, Cactus-Lancaster, LLC will pay Ms. Axe One Thousand Five Hundred Dollars and No Cents ($1,500.00); on February 1, 2006, CactusLancaster, LLC will pay Ms. Axe One Thousand Five Hundred Dollars and No Cents
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($1,500.00); on March 1,2006, Cactus-Lancaster, LLC will pay Ms. Axe One Thousand Five Hundred Dollars and No Cents ($1,500.00); on April 1,2006, Cactus-Lancaster, LLC will pay Ms. Axe One Thousand Five Hundred Dollars and No Cents ($1,500.00); on May 1,2006, Cactus-Lancaster, LLC will pay Ms. Axe One Thousand Five Hundred Dollars and No Cents ($1,500.00); and on June 1,2006, Cactus-Lancaster, LLC will pay Ms. Axe One Thousand Five Hundred Dollars and No Cents ($1,500.00). If Cactus-Lancaster, LLC does not make all payments in the manner set forth in this Paragraph, the Court will enter a judgment for the entire amount remaining due, plus attorneys fees, costs, and interest paid at the legal rate, compounded daily. The checks will be mailed to Ms. Axe at an address to be provided by the EEOC. If there are any changes in address, the EEOC will provide notice by certified mail to counsel for CactusLancaster, LLC. Cactus-Lancaster, LLC will mail a copy of each check, within five business days of mailing it to Ms. Axe, to the attention of Mary M. Tieman, Senior Trial Attorney, EEOC, 21 South Fifth Street, Suite 400, Philadelphia, PA 19106-2515.
7. Cactus-Lancaster, LLC agrees to pay monetary relief in the amount of Eighteen Thousand Dollars and No Cents ($18,000.00) in compensatory damages to Brenda Zankl, in full settlement of the claims raised on her behalf against Cactus-Lancaster, LLC in the EEOC's Complaint. The monetary relief will be paid in the following manner: within 10 business days after receipt of an executed Release in the form of Exhibit 2 and the Court's entry of the Consent Decree, whichever date is later, Cactus-Lancaster, LLC will pay Ms. Zankl Nine Thousand Dollars and Zero Cents ($9,000.00); on January 1, 2006, Cactus-Lancaster, LLC will pay Ms. Zankl One Thousand Five Hundred Dollars and No Cents ($1,500.00); on February 1, 2006, Cactus-Lancaster, LLC will pay Ms. Zankl One Thousand Five Hundred Dollars and No Cents
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($1,500.00); on March 1,2006, Cactus-Lancaster, LLC will pay Ms. Zankl One Thousand Five Hundred Dollars and No Cents ($1,500.00); on April 1, 2006, Cactus-Lancaster, LLC will pay Ms. Zankl One Thousand Five Hundred Dollars and No Cents ($1,500.00); on May 1,2006, Cactus-Lancaster, LLC will pay Ms. Zankl One Thousand Five Hundred Dollars and No Cents ($1,500.00); and on June 1,2006, Cactus-Lancaster, LLC will pay Ms. Zankl One Thousand Five Hundred Dollars and No Cents ($1,500.00). If there are any changes in address, the EEOC will provide notice by certified mail to counsel for Cactus-Lancaster, LLC. If Cactus-Lancaster, LLC does not make all payments in the manner set forth in this Paragraph, the Court will enter a judgment for the entire amount remaining due, plus attorneys fees, costs, and interest paid at the legal rate, compounded daily. The checks will be mailed to Ms. Zankl at an address to be provided by the EEOC. Cactus-Lancaster, LLC will mail a copy of each check, within five business days of mailing it to Ms. Zankl, to the attention of Mary M. Tiernan, Senior Trial Attorney, EEOC, 21 South Fifth Street, Suite 400, Philadelphia, PA 19106-2515.
8. Cactus-Lancaster, LLC agrees to pay monetary relief in the amount of Sixteen Thousand Dollars and No Cents ($16,000.00) in compensatory damages to Tara Fonseca, in full settlement of the claims raised on her behalf against Cactus-Lancaster, LLC in the EEOC's Complaint. The monetary relief will be paid in the following manner: within 10 business days after receipt of an executed Release in the form of Exhibit 3 and the Court's entry of the Consent Decree, whichever date is later, Cactus-Lancaster, LLC will pay Ms. Fonseca Eight Thousand Dollars and Zero Cents ($8,000.00); on January 1, 2006, Cactus-Lancaster, LLC will pay Ms. Fonseca One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on February 1,2006, Cactus-Lancaster, LLC will pay Ms. Fonseca One Thousand Three Hundred
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Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on March 1,2006, Cactus-Lancaster, LLC will pay Ms. Fonseca One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on April 1, 2006, Cactus-Lancaster, LLC will pay Ms. Fonseca One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on May 1, 2006, Cactus-Lancaster, LLC will pay Ms. Fonseca One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); and on June 1,2006, Cactus-Lancaster, LLC will pay Ms. Fonseca One Thousand Three Hundred Thirty-Three Dollars and Thirty-five Cents ($1,333.35). If Cactus-Lancaster, LLC does not make all payments in the manner set forth in this Paragraph, the Court will enter a judgment for the entire amount remaining due, plus attorneys fees, costs, and interest paid at the legal rate, compounded daily. The checks will be mailed to Ms. Fonseca at an address to be provided by the EEOC. If there are any changes in address, the EEOC will provide notice by certified mail to counsel for Cactus-Lancaster, LLC. Cactus-Lancaster, LLC will mail a copy of each check, within five business days of mailing it to Ms. Fonseca, to the attention of Mary M. Tiernan, Senior Trial Attorney, EEOC, 21 South Fifth Street, Suite 400, Philadelphia, PA 19106-2515.
9. Cactus-Lancaster, LLC agrees to pay monetary relief in the amount of Sixteen Thousand Dollars and No Cents ($16,000.00) in compensatory damages to Abby Miller, in full settlement of the claims raised on her behalf against Cactus-Lancaster, LLC in the EEOC's Complaint. The monetary relief will be paid in the following manner: within 10 business days after receipt of an executed Release in the form of Exhibit 4 and the Court's entry of the Consent Decree, whichever date is later, Cactus-Lancaster, LLC will pay Ms. Miller Eight Thousand Dollars and Zero Cents ($8,000.00); on January 1,2006, Cactus-Lancaster, LLC will pay Ms.
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Miller One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on February 1,2006, Cactus-Lancaster, LLC will pay Ms. Miller One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on March 1,2006, Cactus-Lancaster, LLC will pay Ms. Miller One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on April 1,2006, Cactus-Lancaster, LLC will pay Ms. Miller One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on May 1,2006, Cactus-Lancaster, LLC will pay Ms. Miller One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); and on June 1,2006, Cactus-Lancaster, LLC will pay Ms. Miller One Thousand Three Hundred Thirty-Three Dollars and Thirty-five Cents ($1,333.35). If Cactus-Lancaster, LLC does not make all payments in the manner set forth in this Paragraph, the Court will enter a judgment for the entire amount remaining due, plus attorneys fees, costs, and interest paid at the legal rate, compounded daily. The checks will be mailed to Ms . Miller at an address to be provided by the EEOC. If there are any changes in address, the EEOC will provide notice by certified mail to counsel for Cactus-Lancaster, LLC. Cactus-Lancaster, LLC will mail a copy of each check, within five business days of mailing it to Ms. Miller, to the attention of Mary M. Tiernan, Senior Trial Attorney, EEOC, 21 South Fifth Street, Suite 400, Philadelphia, PA 19106-2515.
10. Cactus-Lancaster, LLC agrees to pay monetary relief in the amount of Sixteen Thousand Dollars and No Cents ($16,000.00) in compensatory damages to Susan Perugini, in full settlement of the claims raised on her behalf against Cactus-Lancaster, LLC in the EEOC's Complaint. The monetary relief will be paid in the following manner: within 10 business days after receipt of an executed Release in the form of Exhibit 5 and the Court's entry of the Consent
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Decree, whichever date is later, Cactus-Lancaster, LLC will pay Ms. Perugini Eight Thousand Dollars and Zero Cents ($8,000.00); on January 1, 2006, Cactus-Lancaster, LLC will pay Ms. Perugini One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on February 1, 2006, Cactus-Lancaster, LLC will pay Ms. Perugini One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on March 1, 2006, CactusLancaster, LLC will pay Ms. Perugini One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on April 1,2006, Cactus-Lancaster, LLC will pay Ms. Perugini One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on May 1,2006, Cactus-Lancaster, LLC will pay Ms. Perugini One Thousand Three Hundred ThirtyThree Dollars and Thirty-three Cents ($1,333.33); and on June 1,2006, Cactus-Lancaster, LLC will pay Ms. Perugini One Thousand Three Hundred Thirty-Three Dollars and Thirty-five Cents ($1,333.35). If Cactus-Lancaster, LLC does not make all payments in the manner set forth in this Paragraph, the Court will enter a judgment for the entire amount remaining due, plus attorneys fees, costs, and interest paid at the legal rate, compounded daily. The checks will be mailed to Ms. Perugini at an address to be provided by the EEOC. If there are any changes in address, the EEOC will provide notice by certified mail to counsel for Cactus-Lancaster, LLC. CactusLancaster, LLC will mail a copy of each check, within five business days of mailing it to Ms. Perugini, to the attention of Mary M. Tieman, Senior Trial Attorney, EEOC, 21 South Fifth Street, Suite 400, Philadelphia, PA 19106-2515.
11. Cactus-Lancaster, LLC agrees to pay monetary relief in the amount of Sixteen Thousand Dollars and No Cents ($16,000.00) in compensatory damages to Kim Unger, in full settlement of the claims raised on her behalf against Cactus-Lancaster, LLC in the EEOC's
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Complaint. The monetary relief will be paid in the following manner: within 10 business days after receipt of an executed Release in the form of Exhibit 6 and the Court's entry of the Consent Decree, whichever date is later, Cactus-Lancaster, LLC will pay Ms. Unger Eight Thousand Dollars and Zero Cents ($8,000.00); on January 1,2006, Cactus-Lancaster, LLC will pay Ms. Unger One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on February 1,2006, Cactus-Lancaster, LLC will pay Ms. Unger One Thousand Three Hundred Thirty- Three Dollars and Thirty-three Cents ($1,333.33); on March 1,2006, Cactus-Lancaster, LLC will pay Ms. Unger One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on April 1,2006, Cactus-Lancaster, LLC will pay Ms. Unger One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); on May 1,2006, Cactus-Lancaster, LLC will pay Ms. Unger One Thousand Three Hundred Thirty-Three Dollars and Thirty-three Cents ($1,333.33); and on June 1,2006, Cactus-Lancaster, LLC will pay Ms. Unger One Thousand Three Hundred Thirty-Three Dollars and Thirty-five Cents ($1,333.35). If Cactus-Lancaster, LLC does not make all payments in the manner set forth in this Paragraph, the Court will enter a judgment for the entire amount remaining due, plus attorneys fees, costs, and interest paid at the legal rate, compounded daily. The checks will be mailed to Ms. Unger at an address to be provided by the EEOC. If there are any changes in address, the EEOC will provide notice by certified mail to counsel for Cactus-Lancaster, LLC. Cactus-Lancaster, LLC will mail a copy of each check, within five business days of mailing it to Ms. Unger, to the attention of Mary M. Tieman, Senior Trial Attorney, EEOC, 21 South Fifth Street, Suite 400, Philadelphia, PA 19106-2515.
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Posting of Notice 12. Within 20 business days after entry of this Decree, Cactus-Lancaster, LLC shall post at its facility in Lancaster, Pennsylvania, on all bulletin boards used by Cactus-Lancaster, LLC for communicating with employees, same-sized copies of the Notice attached as Exhibit 7 to this Decree. The Notice shall remain posted for three years from the date of entry of this Decree. A copy of the Notice will be posted in English and Spanish. Cactus-Lancaster, LLC shall provide to the attention of Mary M. Tiernan, Senior Trial Attorney, EEOC, 21 South Fifth Street Suite 400, Philadelphia, PA 19106-2515, a list of the location and date of posting at its Lancaster, Pennsylvania facility within 40 days after entry of this Decree. If the posting becomes defaced, removed, marred or otherwise illegible, Cactus-Lancaster, LLC agrees to post a readable copy in the same manner as heretofore specified.
Non-Discrimination and Anti-Harassment Policies and Complaint Procedures 13. Cactus-Lancaster, LLC's policy or policies against discrimination, harassment and retaliation and complaint procedures shall be drafted in plain and simple language, and be available in English and Spanish. Cactus-Lancaster, LLC shall ensure that its policy or policies against discrimination, harassment and retaliation and related complaint procedures meet the following minimum criteria:
(a) state that Cactus-Lancaster, LLC: (I) prohibits discrimination against employees on the basis of sex, race, national origin, religion and color, and prohibits retaliation in violation of Title Vll; (ii) prohibits retaliation against employees for opposing employment practices they reasonably believe are discriminatory or for participating in an investigation by the EEOC or a state or local governmental agency of a
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charge of discrimination under Title VII; (iii) prohibits any act, policy or practice that has the effect of harassing or intimidating any employee on the basis of sex, race, national origin, religion or color in violation of Title VII; and (iv) prohibits any act, policy or practice that has the effect of creating, facilitating or permitting the existence of a work environment that is hostile to employees through acts such as physical/verbal abuse and derogatory comments based on sex, race, national origin, religion or color in violation of Title VII;
(b) include a complaint procedure designed to encourage employees to come forward with complaints regarding violations of its policy or policies against discrimination, harassment and retaliation, which shall meet the following minimum criteria: (i) provide effective mechanism(s) for reporting incidents of discrimination, harassment and retaliation; (ii) provide that the complaints of discrimination, harassment and/or retaliation can be made either in writing or verbally; (iii) identify employees to whom an employee can make a complaint; (iv) provide a toll free number that will be available for employees to call to make a complaint of discrimination, harassment or retaliation during work hours or to leave a message after work hours; (v) provide that, upon an employee's request, Cactus-Lancaster, LLC will offer translating assistance for filing a written complaint in English or otherwise communicating during the investigation of a complaint; (vi) encourage prompt reporting by employees; and (vii) provide assurances that complainants shall not be subjected to retaliation;
(c) provide for prompt investigation of complaints of harassment and/or retaliation;
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Supervisor Accountability 17. Cactus-Lancaster, LLC shall promote supervisor accountability by the following conduct:
(a) providing annual anti-discrimination training to all of its supervisory and managerial personnel as set forth in Paragraph 18;
(b) disciplining, up to and including discharge, any supervisor or manager who violates Cactus-Lancaster, LLC's policy or policies against discrimination, harassment and retaliation;
(c) imposing on all managers and supervisory personnel a duty to administer their work areas to ensure compliance with Cactus-Lancaster, LLC's policy or policies against discrimination, harassment and retaliation; and
(d) requiring all managers and supervisors to report any pattern of behavior and/or complaint of harassment and/or retaliation of which they become aware to the Corporate Office.
Training
18. Cactus-Lancaster, LLC shall provide training on the requirements of Title vn as
follows: (a) Cactus-Lancaster, LLC agrees to provide annual training sessions for all of
its managers and supervisors in Lancaster, Pennsylvania by a trainer or vendor to provide
training on employee rights and employer obligations under both Title vn and relevant
state or local anti-discrimination laws, which training will emphasize what constitutes unlawful harassment and discrimination in the workplace, how to keep the company free
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from such discrimination, what constitutes unlawful retaliation and will summarize how to conduct a prompt and effective investigation into allegations, complaints or charges of discrimination;
(b) each training session will include a presentation or statement by a highranking official of Cactus-Lancaster, LLC, emphasizing its commitment to prevent discrimination and harassment;
(c) Cactus-Lancaster, LLC shall first provide training in accordance with Paragraph 15(a) by no later than 60 calendar days after entry of this Consent Decree and also shall provide such training in calendar years 2006, 2007, and 2008. 19. In addition to the training described in Paragraph 18 within 90 calendar days of the entry of the Consent Decree, Cactus-Lancaster, LLC shall provide training to all employees on Defendant's policy on sexual harassment in the workplace, a discussion of what conduct constitutes sexual harassment and the complaint procedure to follow if sexual harassment occurs. 20. Cactus-Lancaster, LLC shall obtain the EEOC's approval of its proposed trainer prior to the first year's training session. The approval of the trainer will be effective for subsequent training sessions for the duration of the Consent Decree unless the EEOC determines that the prior training did not comport with the terms of this Consent Decree. Within 10 business days of notification by Cactus-Lancaster, LLC of the trainer's name and outline of the training session, EEOC will advise Cactus-Lancaster, LLC whether or not the trainer is approved. If the EEOC denies approval of the trainer within the 10 business day period, the EEOC is required to provide Cactus-Lancaster, LLC with a detailed explanation for the rejection. If the EEOC fails to
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respond within the 10 business day period, Cactus-Lancaster, LLC can proceed with the trainer that it selected.
21. Cactus-Lancaster, LLC agrees at its expense to provide the EEOC with copies of all pamphlets, brochures, outlines or other written materials provided to attendees of training sessions.
22. Cactus-Lancaster, LLC shall certify to the EEOC in writing within 10 business days after the training sessions required by Paragraphs 18 and 19 have occurred that the training has taken place and the personnel who attended. Such certification shall include: (i) the dates,
location and duration of the training session; (ii) a copy 01' the registry of attendance, including
the name and position of each person in attendance; and (iii) a listing of all managers and supervisors at Lancaster, Pennsylvania as of the date of the training.
Background Checks 23. Cactus-Lancaster, LLC will conduct criminal background checks before hiring or promoting any individual to a supervisory or managerial position.
Recordkeeping 24. For a period of three years following entry of this Decree, Cactus-Lancaster, LLC shall document and retain records of each complaint of an incident of discrimination or harassment, based on sex and/or retaliation for filing a complaint of sexual harassment by any employee in Lancaster, Pennsylvania, reflecting the date the complaint was made, who made it, what was alleged and the actions, if any, Cactus-Lancaster, LLC took to resolve the matter, and shall at its expense make such records available for inspection and copying by the EEOC.
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25. Cactus-Lancaster, LLC shall make all documents or records referred to in Paragraph 20 available for inspection and copying within 10 business days after the EEOC so requests. In addition, Cactus-Lancaster, LLC shall make available for interview all persons in its employ whom the EEOC reasonably requests for purposes of verifying compliance with this Decree and shall permit a representative of the EEOC to enter Cactus-Lancaster, LLC's premises for such purposes on five business days' advance notice by the EEOC.
26. Nothing in this Decree shall be construed to limit any obligation CactusLancaster, LLC otherwise may have to maintain records under Title VII or any other law or regulation. After expiration of this Consent Decree, records will be maintained by CactusLancaster, LLC as required by law and Commission regulations.
Reporting 27 Cactus-Lancaster, LLC shall furnish to the EEOC the following written reports semi-annually for a period of two years following entry of this Decree with the first report due six months after entry of the Decree and the final report due 36 months after entry of the Decree. Each such report shall contain:
(a) a summary of the information recorded by Cactus-Lancaster, LLC pursuant to Paragraph 24, if any such complaints were filed, and to include the name of the complainant, the allegation of the complaint and any action taken by CactusLancaster, LLC in response;
(b) a certification by Cactus-Lancaster, LLC that the Notice required to be posted by Paragraph 12 was posted during the six months preceding the report;
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(c) a certification by Cactus-Lancaster, LLC that it has or will distribute the policy or policies against discrimination, harassment and retaliation annually to employees, and that Cactus-Lancaster, LLC has disseminated the policy or policies against discrimination, harassment and retaliation to all new employees hired within the six -month period preceding the report;
(d) a certification that Cactus-Lancaster, LLC has complied with training requirements of this Consent Decree;
(e) a summary of any additional actions Cactus-Lancaster, LLC took to prevent discrimination, harassment and retaliation at its facility at Lancaster, Pennsylvania, during the six-month period preceding the report.
Dispute Resolution 28. In the event either party to this Decree believes the other party has failed to comply with any provision(s) of the Decree, the complaining party shall notify the other party of the alleged non-compliance within 20 days of the alleged non-compliance and afford the alleged non-complying party 20 business days to remedy the non-compliance or satisfy the complaining party that the alleged non-complying party has complied. If the alleged non-complying party has not remedied the alleged non-compliance or satisfied the complaining party that it has complied within 20 business days, the complaining party may apply to the Court for appropriate relief.
Miscellaneous Provisions 29. Each party to this Decree shall bear its own expenses, costs and attorneys' fees. 30. The terms of this Decree are and shall be binding upon the present and future representatives, agents, directors, officers, successors and assigns of Cactus-Lancaster, LLC in
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their capacities as representatives, agents, directors and officers of Cactus-Lancaster, LLC and not in their individual capacities. This paragraph shall not be construed as placing any limit on remedies available to the Court in the event any individual is found in contempt for a violation of this Decree.
31. This Consent Decree shall fully and finally resolve all claims which were raised by the EEOC in its Complaint in Civil Action No. 04-CV-4584-JS.
32. This Consent Decree shall be filed in the United States District Court for the Eastern District of Pennsylvania and shall continue in effect for three years. During this time, this Court shall retain jurisdiction over this matter and the parties for purposes of enforcing compliance with the Decree, including issuing such orders as may be required to effectuate its purposes. Any application by any party to modify or vacate this Consent Decree during such period shall be made by motion to the Court on no less than 30 days' notice to the other party. Should any material disputes under this Decree remain unresolved after this three-year period, the term of the Decree shall be automatically extended (and the Court will retain jurisdiction of this matter to enforce the Consent Decree) until such time as all disputes have been resolved.
33. The Clerk of the District Court is hereby directed to send a file-stamped copy of this Consent Decree to counsel of record.
'/lSf:::.~It:!:!£~LW-,f-!:L~---­
IJ cqu ine H. Me air Regional Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION Philadelphia District Office 21 S. 5th Street, Suite 400 Philadelphia, PA 19106 (215) 440-2828
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~~~A~ht-
Kathleen A. Talty, Esq.
KRUCHKO & FRIES
Suite 400 502 Washington Avenue Baltimore, Maryland 21204 (410) 321-7310 Attorneys for Defendant

~A.C~(
J ith A. O'Boyle Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Philadelphia District Office 21 S. 5th Street, Suite 400 Philadelphia, PA 19106 (215) 440-2828

SO ORDERED:

Attorneys for Plaintiff Equal Employment Opportunity Commission

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A/R, CLOSED, STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:04-cv-04584-JS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. AUSTIN Assigned to: HONORABLE JUAN R. SANCHEZ Cause: 42:2000 Job Discrimination (Sexual Harassment)

Date Filed: 09/29/2004 Date Terminated: 06/27/2005 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

represented by JACQUELINE H. MCNAIR EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 21 S. 5TH ST STE 400 PHILADELPHIA, PA 19106 215-440-2687 LEAD ATTORNEY ATTORNEY TO BE NOTICED

JUDITH A. O'BOYLE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 21 S. 5TH ST STE 400 PHILADELPHIA, PA 19106 215-440-2687 Email: judith.oboyle@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

MARY M. TIERNAN EQUAL EMPLOYMENT OPPORTUNITY COMM PHILA DISTRICT OFFICE THE BOURSE BLDG 21 S. 5TH ST., STE 400 PHILADELPHIA, PA 19106 215-440-2828 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

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United States District Court Eastern District of Pennsylvania - Docket R... https://ecf.paed.uscourts.gov/cgi-bin/DktRpt.pl?782769936943025-L_3...

BRETT R. AUSTIN TERMINATED: 11/16/2004 doing business as CACTUS WILLIE'S STEAK BUFFET TERMINATED: 11/16/2004
Defendant
CACTUS-LANCASTER, LLC

represented by JAY R. FRIES KRUCHKO & FRIES 502 WASHINGTON AVE SUITE 400 BALTIMORE, MD 21204 410-321-7310 Email: jfries@kruchkoandfries.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
JOHN G. KRUCHKO KRUCHKO & FRIES 502 WASHINGTON AVENUE SUITE 400 BALTIMORE, MD 21204 410-321-7310 TERMINATED: 02/07/2005 LEAD ATTORNEY
JONATHAN SPELLS KRAUSE MORGAN, LEWIS & BOCKIUS, LLP 1701 MARKET STREET PHILADELPHIA, PA 19103 215-963-5000 Email: jkrause@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATHLEEN A. TALTY KRUCHKO & FRIES 502 WASHINGTON AVE SUITE 400 BALTIMORE, MD 21204 410-321-7310 Email: ktalty@kruchkoandfries.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/2004

#

Docket Text

1 COMPLAINT against BRETT R. AUSTIN , filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.(tj, ) (Entered: 09/29/2004)

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09/29/2004 09/29/2004 11/16/2004 11/16/2004 12/14/2004 01/13/2005
01/13/2005 01/14/2005 01/19/2005
01/19/2005
01/27/2005
02/04/2005
02/07/2005

Summons Issued; 1 Mailed to counsel 9/29/04 as to BRETT R. AUSTIN. (tj, ) (Entered: 09/29/2004)
DEMAND for Trial by Jury by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (tj, ) (Entered: 09/29/2004)
2 FIRST AMENDED COMPLAINT AGAINST CACTUS-LANCASTER, LLC FILED BY EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, JURY DEMAND.(ac, ) (Entered: 11/17/2004)
Summons Issued as to CACTUS-LANCASTER, LLC. Forwarded To: Counsel on 11/17/04 (ac, ) (Entered: 11/17/2004)
3 WAIVER OF SERVICE Returned Executed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. CACTUS-LANCASTER, LLC waiver sent on 11/17/2004, answer due 1/18/2005. (wgc, ) (Entered: 12/15/2004)
4 APPLICATION for Pro Hac Vice Admission of Jay R. Fries on behalf of CACTUS-LANCASTER, LLC. (wgc, )Motion, Statement, Certificate of Service Modified on 1/13/2005 (wgc, ). Additional attachment(s) added on 2/4/2005 (bj, ). (Entered: 01/13/2005)
5 APPLICATION for Pro Hac Vice Admission of Kathleen Talty on behalf of CACTUS-LANCASTER, LLC. Motion, Statement, Certificate of Service (wgc, ) Additional attachment(s) added on 2/4/2005 (bj, ). (Entered: 01/13/2005)
6 ANSWER to First Amended Complaint with Affirmative Defenses by CACTUS-LANCASTER, LLC, Cert of Serv.(jmp, ) (Entered: 01/18/2005)
7 ORDER THAT THE APPLICATION OF JAY R. FRIES, ESQ. TO APPEAR PRO HAC VICE ON BEHALF OF DEFENDANT, CACTUS-LANCASTER, LLC IS GRANTED. SIGNED BY JUDGE JUAN R. SANCHEZ ON 1/19/05. 1/19/05 ENTERED AND COPIES MAILED.(fdc) (Entered: 01/19/2005)
8 ORDER THAT THE APPLICATION OF KATHLEEN A. TALTY, ESQ. TO APPEAR PRO HAC VICE ON BEHALF OF DEFENDANT, CACTUS-LANCASTER, LLC IS GRANTED. SIGNED BY JUDGE JUAN R. SANCHEZ ON 1/19/05. 1/19/05 ENTERED AND COPIES MAILED.(fdc) (Entered: 01/19/2005)
9 ORDER THAT A RULE 16 CONFERENCE WILL BE HELD ON 2/7/2005 AT 09:30 AM.. SIGNED BY JUDGE JUAN R. SANCHEZ ON 1/24/05. 1/27/05 ENTERED AND COPIES MAILED AND E-MAILED.(afm, ) (Entered: 01/27/2005)
10 MOTION to Strike Appearance of John Kruchko, Esq. as Local Counsel and Substitute Jonathan Krause, Esq. as Local Counsel for Defendant filed by CACTUS-LANCASTER, LLC.Certificate of Service.(FRIES, JAY) (Entered: 02/04/2005)
11 ORDER THAT THE APPEARANCE OF JOHN G. KRUCHKO, ESQ. AS LOCAL COUNSEL FOR DEFENDANT, CACTUS-LANCASTER, LLC, IS STRICKEN AND THE APPEARANCE OF JONATHAN KRAUSE, ESQ. MORGAN,LEWIS & BOCKIUS LLP IS ENTERED AS LOCAL COUNSEL FOR DEFENDANTS . SIGNED BY JUDGE JUAN R. SANCHEZ ON 02/04/05.

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02/08/2005
02/11/2005 05/13/2005 06/07/2005 06/27/2005 09/13/2005

02/07/05 ENTERED AND COPIES MAILED.(ac, ) (Entered: 02/07/2005)
12 ORDER THAT THE FOLLOWING DEADLINES ARE SET IN THIS CASE: FINAL PRETRIAL CONFERENCE SET FOR 9/7/2005 09:00 AM BEFORE HONORABLE JUAN R. SANCHEZ. DISCOVERY DUE BY 7/7/2005. MOTIONS DUE BY 7/21/2005. PLAINTIFF PRETRIAL MEMO DUE BY 8/4/2005. DEFENDANT PRETRIAL MEMO DUE BY 8/11/2005. TRIAL POOL SET FOR 10/11/2005.. SIGNED BY JUDGE JUAN R. SANCHEZ ON 2/7/05. 2/8/05 ENTERED AND COPIES MAILED AND E-MAILED.(wgc, ) (Entered: 02/08/2005)
13 Minute Entry for proceedings held before Judge JUAN R. SANCHEZ : Pretrial Conference held on 02/07/05. (ac, ) (Entered: 02/11/2005)
14 ORDER THAT A SETTLEMENT CONFERENCE IS SCHEDULED FOR JUNE 1, 2005, AT 11:00 A.M. IN COURTROOM TBA. SIGNED BY JUDGE JUAN R. SANCHEZ ON 05/13/05. 05/13/05 ENTERED AND COPIES MAILED AND E-MAILED.(ac, ) (Entered: 05/13/2005)
15 Minute Entry for proceedings held before Judge JUAN R. SANCHEZ : Settlement Conference held on 06/01/05. (ac, ) (Entered: 06/07/2005)
16 ORDER DISMISSING ACTION WITH PREJUDICE PURSUANT TO LOCAL RULE 41.1(b). SIGNED BY JUDGE JUAN R. SANCHEZ ON 06/24/05. 06/28/05 ENTERED AND COPIES MAILED AND E-MAILED.(ac, ) (Entered: 06/28/2005)
17 CONSENT DECREE WITH COURT APPROVAL THAT SHALL FULLY AND FINALLY RESOLVE ALL CLAIMS WHICH WERE RAISED BY THE EEOC IN ITS COMPLAINT. SIGNED BY JUDGE JUAN R. SANCHEZ ON 09/13/05. 09/14/05 ENTERED AND COPIES MAILED.(ac, ) (Entered: 09/14/2005)

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