IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

FILED
SEP 27 1999

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
JOHN MORRELL & CO., Defendant.

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COMPLAINT AND JURY TRIAL DEMAND

NATURE OF THE ACTION This action arises under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of national origin and to provide appropriate reliefto Jose Haro ("Haro"), who was adversely affected by such practices. As alleged with greater particularity below, the Commission alleges that Jose 1. Haro("Haro"), a Mexican American, was subjected to an ethnically hostile work environment because of his nationality and that John Morrell and Co. ("Defendant" or "Employer") failed to take appropriate remedial correetive actions.
JURISDICTION AND VENUE I. lurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337, 1343

and 1345. This action is authorized and instituted pursuant to Section 70G(f)(I) am! (3), ofTit!t: VII oftbe Civil Rights Act of1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A.
2. The employment practices alleged herein to be unlawful were committed within the jurisdiction of the United States District Court for the District of South Dakota.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the ag,au;y uf the United States of America charged with the administratIOn, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) ofTitie VII, 42 U.S.C. § 2000e-5(f)(I) and (3). 4. At all relevant times, Defendant bas continuously been a Delaware corporation authorized to do business in the State of South Dakota and hus continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry ailecting commerce within the meaning of Sections 70 1(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF FACTS 6. More than thirty days prior to the institution of this lawsuit, Haro filed charges of discrimination with the ConlJlli~siulI tlllegiug viulatiuns of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least August uf 1994, Defendant has engaged in unlawful employment practices at it Sioux Falls, South Dakota facility, in violation of Section 703(a) of Title VII, 42
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u.s.c. §
2000e-2(a), and Section 704(a) ofTitle VII, 42 U.S.C. § 2000e-3(a). 8. Haro began working for Defendant on or about May 16, 1994. Initially, Haro worked
on the second floor of the meat processing plant. 9. Beginning in or about August of 1994, Haro was transferred to the first floor of the
meat processing plant where he was subjected to a racially and ethnically hostile work environment. Specifically, Haro contends that non-Hispanic coworkers began making derogatory remarks to him,
illduuillg <.:alling him U"fu<.:king Mt:xi<.:ulI" UIIU U "uirly Mt:xiI.OW1." In uuuiliuu Hwu ullt:gt:u lhul
non-Hispanic coworkers threw pieces of meat at him. 10. Haro complained to Defendant's managers on at least three occasions, and the
Employer failed to take any corrective actions. 11. On or about May 11, 1995, Allen lohnson("lohnson"), a non-Hispanic, threw three
pieces ofmeat at Haro, striking him in the back. According to Haro, one piece of meat was the size of a basebalL In addition to throwing meat at him, Haro contends that Johnson called him derogatory names such as "dirty Mexican."
12. Haro became frustrated and punched Johnson in the face. 13, On May 26,1995, both Johnson and Haro were terminated for the altercation. They were terminated for violation of Company work rule Number 20, for provoking a fight or fighting on company premises. 14. On July 12, 1995, Johnson was reinstated to employment.
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STATEMENT OF CLAIM 15. The effect of the practices complained of in paragraphs 8-15 above, has been to deprive Haro of equal terms and conditions of employment and otherwise adversely ailect Haro's status as an employee because of his national origin, in violation of Section 703(a) of Title VII, 42. U.S.C. § 2000e-2(a). 16. The unlawful employment practices complained of in paragraphs 8-15 were intentional. 17. The unlawful employment practices complained of in paragraphs 8-15 were done with malice or with reckless indifference to the federally protected rights ofHaro.
PRAYER FOR RELIEF Wherefore, the Commission respeetfully requests that this Court:
A. Grant a permanent injunction enjoining Defendant, its officers, successors,
assigns, and all persons in active concert or participation with it, from engaging in national origin
or etlmic harassment, and any otller discriminatory employment practice. B. Institute and carry out policies, practices, and programs that proscribe workplace
racial and etlmic harassment, that provide equal employment opportunities for Mexican Americans, and that eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant to institute and carry out policies, practices, and programs iliat proscrib", retaliation against thost; who complain about discriminatory tallploymcnt practices, and that eradicate the effects of its past and present unlawful employment practices.
D. Order Defendant to make Haro whole, by providing compensation for past and future pecuniary and non-pecuniary losses resulting from the unlawful employment practices
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described herein, in amounts to be determined at trial.
E. Order Defendant to provide Haro compensation for past and future non-pecuniary
losses resulting from the unlawful practices complained of above, including physical and emotional pain and suffering, inconvenience, loss of enjoyment of life, and medical expenses, in amounts to be determined at trial.
F. Order Defendant to pay Haro punitive damages for its malicious and reckless
conduct described in paragraphs 8-15 above, in amounts to be determined at trial. G. Grant such further relief as the Court deems necessary and proper in the public
interest. H. Award the Commission its costs of this action. JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by this complaint.

DateJ this 23'" Jay uf St:plt:mbt:r, 1999.

C. Gregory Stewart General Counsel
Gwendolyn Reams Associate General Counsel
Joseph H. Mitchell Regional Attorney

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Nelson G. ston Senior Trial Attorney
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Denver District Office 303 E. 17th Avenue. Suite 510 Denver, CO 110203 Tel. No. (303) 866-1378 FAX No. (303)866-1375 PLEASE NOTE: It is sufficient for purposes of service on the EEOC that pleadings, notices, and any other court document be served upon the Trial Attorney. Therefore, duplicate service is not required on the General Counsel or Deputy General Counsel located in Washington, D.C.
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 FILED

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JUN 1 G2000
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EQUAL EMPLOYMENT

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OPPORTUNITY COMMISSION.

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CIV 99-4174

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Plaintitf

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-vs-

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MEMORANDUM OPINION

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JOHN MORRELL & COMPANY

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AND ORDER

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Defendant.

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The defendant, John Morrell & Company ("'Morrell"), has filed a motion to dismiss or, in the

alternative, for summary judgment, on the complaint filed against it by the Equal Employment

Opportunity Commission ("EEOC") alleging violations of Title VII of the Civil Rights Act of1964.

Morrell argues that the EEOC's claims should be dismissed with prejudice, based on the EEOC's

delay in bringing the complaint. the EEOC's purported failure to accord substantial weight to the

findings of the Sioux Falls "uman Relations Commission, the EEOC's purported failure to attempt

conciliation prior to filing this lawsuit. and the existence of a consent decree between Morrell and

the EEOC. For the reasons stated below. Morrell's motion to dismiss or for summary judgment is

denied.

BACKGROUND The EEOC's complaint is based on Morrell's alleged treatment ofa former employee, Jose Haro ("Haro"). According to the complaint, "aro was subjected to a "racially and ethnically hostile work environment" at Morrell's meat processing plant in Sioux Falls, where workers referred to him with racial epithets and threw pieces of meat at him. Although Ham allegedly complained three times to Morrell's managers. Morrell failed to take any corrective action. On one occasion. another Morrell employee. Allen .Johnson ("Johnson") called JJam a "dirty Mexican." and threw three pieces of meat which struck Haro in the hack. [n retaliation. Haro punched Johnson in the face. Both Haro

and the other employee were terminated for the altercation on May 26. 1995. Johnson was reinstated to employment on July 12. 1995. but Ham was apparently never reinstated.
Prior to Johnson's reinstatement. on June X. 1995. Haro tiled a charge of employment discrimination with the Colorado Civil Rights Division (Mot. Ex. I). The charge was investigated by the Sioux Falls lluman Relations Commission ("SFHRC") which. on November IS, 1995. issued a finding of "no probable cause." (Mot. Ex. 3.) The SHIRC specifically found that Hara's termination was not discriminatory. because both Haro and Johnson were terminated for the altercation.' As for the alleged racial harassment ofHaro. the SFHRC discredited Hara's statement that he had told several supervisors about the harassment. based on Morrell's denial that any supervisor received such a complaint prior to the tight that led to Haro's termination. The SFHRC found that there was insufficient evidence that supervisors were specifically informed of or had knowledge of the harassment. and thus insufficient evidence to hold Morrell responsible for the harassment. Based on these findings. the SFHRC dismissed Ham's complaint.
Hara's claim was then transferred to the EEOC's District Office in Denver, Colorado, for review. In January of 1996. the EEOC determined that additional investigation was necessary, and Hara's claim was referred to an investigator on April 12. 1996. On August 27.1996 the investigator notified Morrell that the EEOC was investigating Haro's claim. and asked them for certain information relating to Hara's claim. (Mot. Ex. 4.) After nearly three years of investigation by several EEOC investigators (Flores AfC 14-16). on December 18. 1998. the EEOC issued a determination finding reasonable cause to believe that Hara was harassed and discharged based on his national origin. (Mot. Ex. 10.) On February 18, 1999. the EEOC sent Morrell a proposed Conciliation Agreement. which would have required Morrell to implement certain policies and procedures designed to eliminate violations of Title VII. to pay Hara an unspecified amount in compensation for "non-pecuniary losses and baekpay," and to reinstate Hara to the same position or a position similar to the one held prior to his termination. (Mot. Ex. II.) On March 3, 1999,
The SFHI{C did not address the fact that Johnson was reinstated but Haro was not. 2

Morrell's attorney sent the EEOC a letter rejecting the Conciliation Agreement on the grounds that its conduct toward Haro did not violate Title VII and that the EEOC failed to give substantial weight to the SFHRC's determination of no probable cause. The letter said that Morrell would not change its mind "absent additional information from the Commission which would convince [it] that it did,
indeed, engage in unlawful discrimination against [Ham 1, and that the [SFHRC] reached an
erroneous result." The letter did not object to the EEOC's failure to specify an amount of compensation sought on behalf of Haro. and did not make a counterolTer to the Conciliation Agreement. According to an FFOC investigator, Ann Muniz, Morrell's attorney told her on the telephone that the EEOC's determination was "ridicLllous." (Muniz Aff. '113.)
On March 15, 1999, the EFOC responded with a letter notifying Morrell of its determination that further conciliation efforts would be futile or non-productive, and of its pending review of the case for litigation. (Mot. Ex. 13.) The EEOC filed the instant complaint against Morrell an September 27, 1999, and served the complaint upon Morrell on October 19, 1999. The complaint asks for injunctive relief: (I) prohibiting Morrell from engaging in discriminatory employment practices: (2) requiring Morrell to institute polices, practices, and programs to proscribe workplace harassment based or race or ethnicity and retaliation against those who complain about discriminatory employment practices: and (3) requiring Morrell to eradicate the effects of past and present unlawful employmellt practices. The complaint also seeks compensation for "past and future pecLlniary and non-pecuniary losses" Haro allegedly sulTered as a result of Morre]]'s unlawful employment practices, as well as punitive damages.
DISCUSSION Morrell's motion seeks dismissal under Rule 12(b)(6) ofthe Federal Rules ofCivil Procedure or, in the alternative, summary judgment under Rule 56(b). Because Morrell has presented matters outside the pleadings which relate to each of Morrell 's defenses, and the Court is not excluding these matters, the Court will treat Morrell's motion as it would a motion for summary judgment under the standard set forth in Rule S6(c). Under this standard, "[s]ummary judgment is proper when the record, viewed in the light most favorable to the nonmoving party and giving that party the benelit
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of all reasonable inferences, shows that there is no genuinc issue of material fact and that the moving party is entitled to judgment as a matter of law." Pace v. Citv of Des Moines, 20 I F.3d 1050, 1052 (8th Cif. 2000).
"Even though (he EEOC is not bound by a specitic statute of limitations in tiling a Title VII lawsuit, district courts possess the discretionary power to provide appropriate equitable relief to a defendant who has been prejudiced hy the EEOC's unreasonahle conduct." EEOC v. Liberty Loan Corp., 584 F.2d 853, 856 (8th Cif. 1978). These equitable powers include the authorit} to dismiss a lawsuit filed by the EEOC "in the narrow situation where there has been an inordinate EEOC delay in filing suit and this delay has unduly prejudiced the delay of the defendant." Id. at 857.
The four years and four months which passed between the time Haro filed his claim (June 8, 1995) and the date on which the EEOC served Morrell with its complaint (October 19, 1999) constitutes an inordinate delay. In determining whether a delay is unreasonable, the courts do not look to thc lcngth of the delay itself. but rather to the facts of the particular case and the EEOC's explanations for the delay. See Libertv Loan, 584 F.2d at 857. In this case, the EEOC has not explained why its first investigator did not hegin investigating Haro's claim until morc than three months after she was assigned the case (April 12, 1996 to August 27, 1996), why it took two years and eight months of investigation to produce a finding of probable cause (April 12, 1996 to December 28, 1996), or why it took seven months from its notice that conciliation had failed to file the complaint and serve it upon Morrell (March 15, 1999 to October 19, \999). The EEOC's assertion that no time was lost in transferring the case among its investigators does not explain these delays. Nor do its statements as to the weight of its caseload in the Denver office. See id. at 857 n.6 (noting that "the heavy workload faccd by the E.E.O.C. has not been considered an adequate explanation for procrastination") (citing EEOC v. Bell Helicopter Co., 426 F. Supp. 785,793 (N.D. Tex. 1976)); but scc EEOC v. North Central Airlines, 475 F. Supp. 667,671 (D. Minn, 1979) (considering the case load in the EEOC's Milwaukee otlice as one factor mitigating against a finding that a six year delay bctween the filing of the charge and the filing of the complaint was unreasonable ).
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Morrell, however, has failed to show that it was prejudiced by this inordinate delay, Morrell claims that it was prejudiced because eight witnesses have left its employment since Haro filed his claim and the memories of other witnesses have faded. Contrary to Morrell's argument, it is not clear whether any of the eight witnesses will be unavailable for triaL because Morrell's affidavits demonstrate only that the eight witnesses no longer work at MorrelL and that five of the witnesses arc not listed in the current Sioux Falls white pages. Morrell has not demonstrated that it cannot locate even these five witnesses through more diligent methods, such as asking former co-workers who still work at Morrell for their whereabouts or conducting an internet search, as it presumably would if it actually needed these witnesses for triaL' Moreover, although common sense supports the assumption that available witnesses' memories of detail will have faded somewhat during the EEOC's delay, the prediction that they will faded sufficiently to prejudice Morrell has not yet been tested through pre-trial discovery. See EEOC v. Gard Corp., 795 F. Supp. 1066, 1070 (D. Kan. 1992) (declining to find prejudice. where the defendant failed to provide "concretc cxamples" of/ost recollection); compare Whitfield v. Anheuser -Busch, Inc., 820 F.2d 243, 245-46 (8th Cir. 1987) (crediting the defendant's claim that its witnesses sutTered from "impaired recollection." where the witnesses testified in their depositions that they could no longer accurately recall the events in question and plaintiff s counsel "had ample opportunity to cross-examine them to expose any lack of credibility"). Although Morrell may be able to make such a showing later, it has not done so at this point.
Morrell also claims that the delay has caused prejudice in the form of exposure to increased back-pay liability. The increase in potential back-pay liability is not by itself sufficient prejudice to warrant dismissal of the complaint. While Morrell cites EEOC v. Alioto Fish Co., Ltd., 623 F.2d 86,88-89 (9th Cir. 1980), in support of its argument that the increase in potential back-pay liability caused by the EEOC's delay constitutes prejudice sufficient to warrant dismissal, the Alioto decision
It should also be noted the absence oftivc of the eight witnesses whom Morrell claims arc no longer available cannot be traced to the EEOC's unreasonable delay. These witness all left Morrell prior to August 31, 1'i'!6 (Mem. Ex. 15). a date on which the EEOC could have filed suit without having caused an unreasonable delay.
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considered back-pay liability due to a ten-year delay as a factor secondary in importance to, among other things, the death of certain defense witnesses and the EEOC conciliator, and the complainant's having forgotten whether she ever appl icd to work for the defendant. See id. This case presents an increase in potential back-pay liability over a period of time which is fifty percent shorter than in Alioto and, so far, without demonstrated losses of testimony or other evidence. While the EEOC's delay may justify some equitable remedy with regard to back pay,' the delay does not justify outright dismissal of the complaint. Sec Corning Glass Works v. Ovsanik, 644 N.E.2d 1327 (N,Y, 1994) ("Increased exposure for back pay liahility does not implicate a party's ahility to defend.. , . What harm exists can he redressed without resorting to the drastic remedy of dismissing the complaint.").
The Court cannot say that the EEOC failed to accord substantial weight to the findings of the SFIIRC. The EEOC was required to accord substantial weight to the findings of the SFHRC under Section 706(b) of Title VII. see 42 U.S.c. § 2000e-5(b), and a failure to do so would constitute a "serious procedural default." EEOC v. The Johnson Co., 421 F. Supp. 652, 657 (D. Minn. 1975). Morrell argues that "unless and until the EEOC is prepared to affirm under oath, that it did, in fact, afford the findings ofthe Sioux Falls Human Relations Commission 'substantial weight' as required under § 706(b), the Complaint is subject to dismissal ... ." (Mem. at 24.) Because the EEOC made such an affirmation in response to the motion to dismiss (Flores Aff. ~~ I 1-13), the complaint cannot
be dismissed on this ground. See The Johnson Co .. 421 r. Supp. at 657 (refusing to dismiss the
complaint where the affidavit ofthe District Director who made the reasonable cause determination stated that substantial weight was given to the contradictory findings of the local human rights commission which initially investigated the claim).
Nor is the complaint subject to dismissal based on the EEOC's purported failure to conciliate
The EEOC now claims that the complaint does not seek hack-pay compensation. However, even if the EEOC changes its mind and decides that the complaint is asking for such relief, and depending on the circumstances, the Court might deny at least some portion of back pay liability to the EEOC. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 424, 95 S. Ct. 2362, 2375,45 L. Ed. 2d 280 (1975) ("To deny backpay because a particular cause has been prosecuted in an eccentric fashion, prejudicial to the other party, does not offend the broad purposes of Title VII.")
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with Morrell. A failure by the EEOC to make a good-faith attempt to conciliate a claim, see 42 U.S.c. § 2000e-5(b); 29 C.F.R. § 1601.24, can constitute cause for dismissing a complaint. See EEOC v. Hickev-Mitchell Co., 507 F.2d 944. 948 (8th Cir. 1974) (stating that "it is beyond dispute that a Commission lawsuit brought before any attcmpt at conciliation is premature," and holding that the EEOC's failure to scnd a notice of termination of conciliation was grounds for dismissing the EEOC's complaint without prejudice). While "[t]he EEOC is obligated to make good faith efforts to concilIate employees' claims with employers before filing suit ... the Commission is under no duty to attempt further conciliation after an employer rejects its offer." (lard Corp" 795 F. Supp. at 1069 (intcrnal citation omitted). Although Morrell now objects to the proposed Conciliation Agreement on the ground that it failed to demand a speciticd sum in compensation for Haro's injuries. it made no such objection in March of 1999. Instead. Morrellilat-out rejected the proposed Conciliation Agreement on the grounds that there was no basis for liability. 4 After this rej t'cti on, the EEOC had no duty to continue efforts at conciliation. See id.
Finally. Morrell argues that thc complaint is barred hy the doctrine of res judicata and collateral estoppel. "Under the doctrine of resjudicata. ajudgment based on the merits in a prior suit bars a second suit involving the same pmiies or their privies based on the same cause of action." Parklane Hosiery Co. v. Shore, 439 U.S. 322. 327 n.5. 99 S. Ct. 645, 649 n.5, 58 L. Ed. 2d 552 (1979). "Under the doctrine of collateral estoppel. on the other hand. the second action is upon a different cause of action the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the tirst action." Id. Morrell argues that these doctrines bar this lawsuit because the complaint's prayer for relief overlaps the terms of a Consent Decree entered into between the EEOC and Morrell in a previous case, EEOC v. John Morrell & Co., CIV 98-4131 (D.S.D .. decree entered, Aug. 13. 1999).

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Although Morrell characterizes the proposed Conciliation Agreement as "take-it-or

leave-it" (Mem. at 25, 26), the cover letter which accompanied the proposed Agreement refutes

that characterization. by inviting Morrell to '"submit a counter proposal in the event the terms of the

Agrccment are not entirely agreeable" (Mem. Ex. 11). Instead of offering such a counter proposal,

Morrell simply rejected the Agreement. (Mem Ex. 12 at 8 ("[My client is not inclined to oHer any

counterproposal to the EEOC's proposed Conciliation Agreement at this time.").)

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lJnder appropriate circumstances. thc doctrincs of res judicatu and collateral estoppel can apply to consent decrees. See EPA \. rvson Foods. Inc .. 921 F.2d 1394. 1403-5 (8th Cir. \990); People Who Care v. Rockford Rd. of Educ .. 6~ F.3d 172m 178 n.5 Oth Cir 1995) (special requirements for collateral estoppel). l\eitiJer doctrine. however. applies here:. Resj udicata does not apply because the two lawsuits invol vcd di fferent transactions or occurrences. See L-Tee Dectronics Corp. v. CotIgar L~ketronic Org .. lnc.. l')li FJd 1i5. X7-iili (2d ('ir. 1')<)')). Collateral estoppel. or issue preclusion. does not apply either. because the t\\O cascs do not involve the same legal issues the prior case raised issues of discrimination based on sex. while this case involves issues of discrimination based on race and ctl1l1icity. The instant complaint does seek sOllle relief which is already provided in the Consent Decree. by asking j()r an inj unction requiring Morrell to institute and carry out policies, practices and procedures that proscribe retaliation against those who complain about discriminatory employment practices. (The Consent Decree already requires Morrell to perform some "fthese duties. by maintaining a polin' pruscribing retaliation against any employee who complains about sexual harasslllcnt or who liles a discrimination claim regarding sexual harassment.) The appropriateness of such inj unctiw relief can be determined by the Court, in light of the Consent Deere"" and the established L,cts of this case. if and whcn the EEOC prevails on its complaint. Accordingly.

IT IS ORDERED that Morrell's motion to dismiss or. alternatively. li)r summary judgment is denied.

(l..

~Y Dated this

of June. 20()U.

13Y TIIF COURT

BY: Wh.LlL
(SEAL

ChieLiudge

 
 rn "-"n . ' •......:....,1 . _

IN THE UNITED STATES DISTRICT COURT

JAN 042001

E**Q*U*A**L**E*M**P*L*O**Y*M**E*N*T*F*OO**RP*PT*OH**RE*T*DU*I*NS*TI*TR*YI*C*) T**O**F*S*O**U*T**H*D**A*K**O*T*A******~ ***~~1~~~-**

COMMISSION,

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Plaintiff,

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CIV 99-4174

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v.

)

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JOHN MORRELL & CO.,

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)

Defendant.

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CONSENT DECREE ******************************************************************************

RECITALS

1. This matter was instituted by Plaintiff, the United States Equal Employment Opportunity Commission ("Commission" or "Plaintiff'), an agency of the United States Government, alleging two violations of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. (,Title VII"). In its Complaint, the
Commission specifically alleged that Defendant John Morrell & Co. ("John Morrell" or "Defendant") unlawfully subjected a former employee to a hostile and offensive work environment based on his national origin, in violation of Section 703 ofTitle VII, 42 U.S. C. § 2000e-2(a).

2. The Commission. Plaintiff-Intervener, and Defendant, being desirous of settling this action by an appropriate Consent Decree ("Decree"), agree to the jurisdiction of the Court over the parties.
3. The Decree shall be voluntarily entered into by the parties, and shall not constitute an adjudication or finding on the merits; nor shall it be construed as an admission by John Morrell & Co. that it violated Title VII by maintaining a work environment hostile to Hispanics or other minorities, or groups or individuals on any basis.
4. This Decree is final and binding upon the parties, as well as upon their successors and assigns. Furthermore, the parties agree to defend this Decree should it be challenged by anon-party.

5. Solely for the purpose of amicably resolving the claims, John Morrell & Co. joins with the Commission in requesting this Court to adjudge as follows:
IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
6. The parties stipulate to the jurisdiction of the Court over the respective parties and waive entry of findings offact and conclusions oflaw.
7. The duration of this Decree shall be from the date of approval by the Court through August 12,2002.
ISSUES RESOLVED
8. This Decree, resolves all claims of the Commission for backpay, compensatory, pecuniary and non-pel:uniary damages, reinstatement, and punitive damages on behalf of charging party arising out of the claims and issues set forth in Civil Action 99-4174.
9. The Commission will attempt to resolve any dispute regarding enforcement of the Decree by informal mediation and consultation before seeking enforcement through the judicial process. If the Commission has any reason to believe that any action or omission on Defendant's part violates this Agreement, the Commission will notifY Defendant in writing.
10. John Morrell & Co., its officers, agents, employees, successors, and all other persons in active concert or participation with any of them will not interfere with the relief herein ordered, but shall cooperate in the implementation of this Decree.
COMPLIANCE
II. Harassment Policy.
a. Defendant John Morrell & Co. shall adopt and maintain a policy proscribing workplace harassment or discrimination on the basis of national origin, race, color, ethnicity, religion, disability, or age, by all employees and proscribing retaliation against any employee who complains about harassment or who files a charge of discrimination regarding harassment. This policy shall contain all the elements shown in the sample harassment and retaliation policy attached hereto as Exhibit A. Within thirty days of the execution of this Agreement, Defendant shall forward a copy of said harassment and retaliation policy to the Commission's Attorney of Record in this matter for review. Throughout the duration of this agreement, the Commission shall retain the authority to recommend necessary modifications to the policy to ensure that it conforms fully to federal law. Defendant agrees to implement such modifications, after consultation with the Commission's Attorney of

Record.
b. John Morrell & Co. shall post and cause to remain posted during the term of this Decree a copy of its harassment and retaliation policy in a place clearly visible to all employees, including but not limited to: 1) every cafeteria; 2) every break room; and 3) every locker room. Said policy shall be written and posted in both the English and Spanish languages.
c. A copy of said policy, in English or Spanish as appropriate, shall be individually distributed to each and every employee who supervises one or more employees (either directly or through the supervision of others).
d. Within forty-five days (45) of the approval of this Agreement, John Morrell & Co. shall prepare and submit to the Commission's Regional Attorney in the Denver District Office a letter indicating that the foregoing harassment policy above has been posted and distributed.
12. HarassmentlDiscrimination Internal Complaint Procedures.
a. Authority to investigate and make decisions with respect to any complaint or report of harassment shall be vested in John Morrell & Co.'s Affirmative Action Officer or the director of Human Resources, or any other Human Resources employee the Company designates.
b. Other managerial or supervisory employees may receive complaints of harassment. Upon receipt of said complaints, the managerial employee shall forward the matter to the Affirmative Action Officer, the Director of Human Resources, or the Human Resources employee designated pursuant Paragraph 12.a. for appropriate investigation and action.
13. Training. The training requirements provided for in the Consent Decree entered into by and between the parties to this action in Civil Action Number 98-4131 (40 hours per year for the affirmative action officer and 10 hours per year for the Director of Human Resources) shall suffice to meet the training needs to comply with this consent decree. The inclusion of the reference to the training requirements of the above referenced Consent Decree does not require duplication ofthe training hours provided for therein.
14. Posting. Defendant shall post a Notice of this Decree in a place visible to all employees for sixty (60) days after the date of signing of the Decree by the Court. The Notice agreed upon by the parties is attached hereto as Exhibit B.
15. Record Keeping. With respect to each internal complaint of harassment made to the appropriate managerial employee, as provided for in Defendant's harassment and retaliation policy, or with respect to each charge of harassment filed by an employee with any local, state, or federal agency against Defendant, Defendant

shall keep and maintain separately the following records:

a. The name, address, and telephone number of complaining employee;

b. The substance of the complaint;

c. The name of the company official investigating the complaint;

d. any investigative steps taken in response to said complaint;

e. Defendant's determination as a result of the investigation,

f.

Any action taken against the alleged harasser andlor any action taken to

resolve the complaint.

16. Reporting. The reporting provisions contained in the Consent Decree entered into in Civil Action Number 98-4131 are incorporated herein by this reference. Such incorporation shall not in any way act to duplicate the burden upon Defendant and simply requires the reports to include the categories of discrimination and harassment identified herein.

17. Anti-retaliation. Defendant agrees not to retaliate against the former employee or any other individual who participated in the investigation of the charges of Discrimination or who participates in any investigation conducted by the EEOC or any local or state agency that investigates charges of discrimination or harassment.

18. Press Release/Coverage. The Commission and Defendant shall issue a joint press release attached hereto as Exhibit C as the exclusive press release related to the resolution of this litigation.

19. Monetary Compensation. Defendant agrees to compensate the former employee, pursuant to the terms contained in a separate agreement, for injuries arising out the claims asserted in this action.

RETENTION OF JURISDICTION AND FILING OF DECREE
20. This court shall retain jurisdiction of this cause for purposes of compliance with this Decree and entry of such further orders or modification as may be necessary or appropriate to effectuate the purposes of Title VII.
21. Upon submission of the final report referenced in Paragraph 16, and the expiration of a period of fifteen days after submission of final report, the parties shall promptly file a Joint Stipulation for Dismissal with Prejudice ("Joint Stipulation') ofthis civil action, upon which the filing of this Decree shall dissolve, and this Civil Action 99-4174 shall be dismissed with prejudice.
ENFORCEMENT
22. There is no right of private non-parties to enforce John Morrell & Co.'s obligations under the Consent Decree, and only the Commission, and John

Morrell & Co. or their successors may enforce compliance herewith.
23. This Consent Decree shall in no way limit the Commission's power and authority to investigate or litigate charges of discrimination against John Morrell & Co. that do not relate to this case.
COSTS AND ATTORNEY FEES
24. Each party shall bear and pay its own costs and attorneys fees, unless otherwise ordered by the Court.
NOTICE AND MAILING
25. Any notice, report or communication required under the provisions of this Decree shall be sent by certified mail, postage prepaid, to the appropriate parties as follows:
Joseph Mitchell Regional Attorney Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave., Suite 510 Denver, CO 80203
Leslie Robert Stellman, Esq. Blum, Yumkas, Mailman, Gutman & Denick, P.A.
1200 Mercantile Bank and Trust Building 2 Hopkins Plaza
Baltimore, Maryland 21201-2914

APPROVED AS TO FORM:
Denver District Office 303 E. 17th Ave., Suite 510 Denver, CO 80203 Phone - 303-866-1376
L lie obert Ste1Jman, Esq. lurn, Yurnkas, Mailman, Gutman & Denick, P.A.
1200 Mercantile Bank and Trust Building 2 Hopkins Plaza Baltimore, Maryland 21201-2914 Phone - 410-385-4035 Attorney for Defendant

BY CONSENT: Regional Attorney

SSION

DATE:--f-~--=-~'----='-"--_

SO ORDERED THIS ~ I rtL-DAY OFrJ.-/h}u.II:!U{ ,200~.

Exhibit A
HARASSMENT and ANTI-RETALIATION POLICY
Pursuant to Title VII of the Civil Rights Act of 1964, as amended, it is unlawful for an employer to subject an employee to acts of harassment based upon the employee's sex, race, color, religion, or national origin, or to permit or encourage a work environment in which such conduct occurs. Further, it is Wllawful for any employer to retaliate against an employee because he or she has opposed discriminatory employment practices because he or she has filed a charge of discrimination with any mWlicipal, state or federal equal employment opportunity agency, or because he or she has participated in an investigation of a charge of discrimination.
It is the policy of John Morrell & Co. to prohibit the types of harassment described above. All persons, including supervisors and managers, who are responsible for such conduct shall be disciplined.
Employees who believe that they have been subjected to harassing conduct may complain to anyone in management and/or to Candace Lottman, the Affirmative Action Officer located in Human Resources. Within ten calendar days of the complaint, management officials will conduct a full investigation, which will include a thorough interview with the complaining employee, the alleged harasser, and any witnesses, as appropriate. Upon conclusion of the investigation, the investigating managerial official will report back to the complaining employee, and take my appropriate action against the offending party .
~ure.1l U<U.~
John Mllaell & Co. respects the right of its employees to work in an environment that is free
from harassment. In compliance with federal law, no official at John Morrell & Co. will retaliate against an employee who complains about harassing conduct or who participates in a harassment . Q:,:r1nvestigation either: I) through the internal complaint procedure described above; or 2) through \....y 1I.:t\y mWlicipal, state, or federal equal employment opportunity agency investigation. 4",\

ExhibitB
NOTICE
The following notice is posted pursuant to the terms of a Consent Decree Reached between the parties in EEOC v. John Morrell & Co., filed in the United States District Court for the District of South Dakota, Civil Action No. 99-4174.
Pursuant to Title VII of the Civil Rights Act of 1964, as amended, it is unlawful for an employer to subject an employee to acts of harassment based upon the employee's sex, race, color, religion, or national origin, or to permit or encourage a work environment in which such conduct occurs. Further, it is unlawful for any employer to retaliate against an employee because he or she has opposed discriminatory employment practices because he or she has filed a charge of discrimination with any municipal, state or federal equal employment opportunity agency, or because he or she has participated in an investigation of a charge of discrimination.
It is the policy of John Morrell & Co. to prohibit the types of harassment described above. All persons, including supervisors and managers, who are responsible for such conduct shall be disciplined.
Employees who believe that they have been subjected to harassing conduct may complain to anyone in management and/or to Candace Lottman, the Affirmative Action Officer located in Human Resources. Within ten calendar days of the complaint, management officials will conduct a full investigation, which will include a thorough interview with the complaining employee, the alleged harasser, and any witnesses, as appropriate. Upon conclusion of the investigation, the investigating managerial official will report back to the complaining employee, and take my appropriate action against the offending party. Employees may also contact the Equal Employment Opportunity Commission ("EEOC") by telephone at (303) 866-1300 or 1-800-6694000, or by mail at 303 E. 17th Ave., Suite 510, Denver, CO 80203.
In compliance with federal law, no official at John Morrell & Co. will retaliate against an employee who complains about harassing conduct or who participates in a harassment investigation either: 1) through the internal complaint procedure described above; or 2) through my municipal, state, or federal equal employment opportunity agency investigation. If you believe that John Morrell & Co. officials have retaliated against you for complaining about harassment, please contact the EEOC, Denver District Office, immediately at (303) 866-1300 or 1-800-669-4000.
This Notice shall remain posted for 60 days from the date of the Notice.
JOHN MORRELL & CO.
By ____________________ Date
Its _____________________

EXHIBITC
EEOC SETTLES DISCRIMINATION CASE AGAINST MEAT PACKING COMPANY The United States Equal Employment Opportunity Commission (EEOC) and John
Morrell & Co. (Morrell) announced that a settlement was reached in an action filed by the EEOC alleging that a former Hispanic employee had been exposed to harassment in 1995 based upon his national origin - conduct which John Morrell & Co. has denied. The Company has agreed to continue its ongoing efforts to maintain a work environment that is free from harassment and discrimination and has offered an economic settlement to the former employee. The settlement was approved by a federal district court judge.
"We were happy that John Morrell agreed to work with the Commission in resolving this case and in seeking to ensure good equal employment opportunity practices," states Joseph H. Mitchell, Regional Attorney of the Denver District Office of the EEOC.
In addition to enforcing Title VII, which prohibits discrimination based on race, color, religion, sex or national origin, the EEOC also enforces the Age Discrimination in Employment Act, the Equal Pay Act, prohibitions against discrimination affecting individuals with disabilities in the federal sector, sections of the Civil Rights Act of 1991, and Title I ofthe Americans with Disabilities Act, which prohibits discrimination against people with disabilities in the private sector and state and local governments. Further information about the EEOC is available at the agency's website at www.eeoc.gov.

 
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U.S. District Court District of South Dakota (Southern Division) CIVIL DOCKET FOR CASE #: 4:99-cv-04174-LLP

CLOSED

EEOC v. John Morrell & Co Assigned to: U. S. District Judge Lawrence L. Piersol Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/27/1999 Date Terminated: 01/04/2001 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Evangelina Fierro Hernandez Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303)866-1378 Fax: 866-1375 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nelson G. Alston Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303)866-1378 Fax: 866-1375 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant John Morrell & Company

represented by Leslie R. Stellman Hodes, Ulman, Pessin & Katz, P.A. 901 Dulaney Valley Road 4th Floor Towson, MD 21204-2600 410-938-8800 Fax: 823-6017 LEAD ATTORNEY

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Date Filed 09/27/1999 09/27/1999 12/13/1999 12/13/1999 12/13/1999
12/21/1999
01/25/2000 01/25/2000
01/25/2000 02/16/2000 02/16/2000 02/16/2000
02/28/2000

ATTORNEY TO BE NOTICED
Scott C. Folkers PO Box 5266 Sioux Falls, SD 57117 330-3332 LEAD ATTORNEY ATTORNEY TO BE NOTICED

#

Docket Text

1 COMPLAINT: no summons(es) issued to plaintiff's counsel; jury demand (SLL) (Entered: 09/27/1999)

2 CIVIL COVER SHEET (SLL) (Entered: 09/27/1999)

3 WAIVER Of Service by defendant John Morrell & Co on 12/9/99 (SLL) (Entered: 12/13/1999)

4 MOTION to extend time within which to file answer or other responsive pleading by defendant John Morrell & Co (FE) (Entered: 12/14/1999)

5 ORDER by Lawrence L. Piersol granting motion to extend time within which to file answer or other responsive pleading [4-1]; defendant may have until 1/26/00 to answer or otherwise respond to Complaint (cc:all counsel) (FE) (Entered: 12/14/1999)

6 NOTICE OF LAWSUIT and Request for Waiver of Service of Summons (with attached copy of Waiver of service of summons) by plaintiff EEOC (FE) (Entered: 12/22/1999)

7 MOTION to dismiss complaint , or alternatively for summary judgment by defendant John Morrell & Co (SLL) (Entered: 01/25/2000)

8 MEMORANDUM with exhibits by defendant John Morrell & Co in support of motion to dismiss complaint [7-1], of motion for summary judgment [7-2] (SLL) (Entered: 01/25/2000)

9 CERTIFICATE OF SERVICE by defendant John Morrell & Co (SLL) (Entered: 01/25/2000)

10 AFFIDAVIT of S. Ann Muniz re [7-1], re [7-2] (LMZ) (Entered: 02/17/2000)

11 AFFIDAVIT of Francisco J. Flores, Jr. re [7-1], re [7-2] (LMZ) (Entered: 02/17/2000)

12 MEMORANDUM by plaintiff EEOC in opposition to motion to dismiss complaint [7-1], motion for summary judgment [7-2] (LMZ) (Entered: 02/17/2000)

13 CERTIFICATE OF SERVICE by defendant John Morrell & Co (FE) (Entered: 02/28/2000)

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03/01/2000 04/11/2000 05/02/2000 05/10/2000 06/16/2000 06/26/2000
08/16/2000 09/06/2000 09/06/2000 09/06/2000 09/06/2000 09/06/2000 09/25/2000 09/25/2000 09/25/2000 09/25/2000

14 REPLY by defendant John Morrell & Co to response to motion to dismiss complaint [7-1], motion for summary judgment [7-2] (SLL) (Entered: 03/01/2000)
15 ORDER For Form 35 Report and Scheduling Information by Lawrence L. Piersol (cc: all counsel) (DLS) (Entered: 04/11/2000)
16 RULE 26 Initial Disclosures Statement by defendant John Morrell & Co (SLL) (Entered: 05/02/2000)
17 Form 35 Report Of Parties Planning Meeting re [15-1] (FE) (Entered: 05/11/2000)
18 MEMORANDUM OPINION AND ORDER by Lawrence L. Piersol denying motion to dismiss complaint [7-1], denying motion for summary judgment [7-2] (cc: all counsel) (SKM) (Entered: 06/19/2000)
19 RULE 16 SCHEDULING ORDER Lawrence L. Piersol ; Discovery ddl set for 12/31/00 ; mtn filing ddl set for 1/10/01; motion hearing and pretrial conference set for 10:00 4/16/01 ; jury trial set for 9:30 5/15/01 (cc: all counsel) (SLL) (Entered: 06/27/2000)
20 SETTLEMENT CONFERENCE ORDER and Notice of Settlement Conference; settlement conference set for 08/29/00 at 10:00 am; by Mag Judge Marshall P. Young (cc:all counsel) (FE) (Entered: 08/21/2000)
21 MOTION for default judgment against John Morrell & Co by plaintiff EEOC (SLL) (Entered: 09/06/2000)
22 MEMORANDUM/SUMMARY OF RELIEF REQUESTED by plaintiff EEOC in support of motion for default judgment against John Morrell & Co [21-1] (SLL) (Entered: 09/06/2000)
23 AFFIDAVIT of Nelson G. Alston re motion for entry of default judgment [21-1] (SLL) (Entered: 09/06/2000)
24 ANSWER by defendant John Morrell & Co to [1-1] (SLL) (Entered: 09/06/2000)
25 MEMORANDUM by defendant John Morrell & Co in opposition to motion for default judgment against John Morrell & Co [21-1] (SLL) (Entered: 09/06/2000)
26 MOTION for leave to file and serve untimely answer by defendant John Morrell & Co (FE) (Entered: 09/25/2000)
27 MEMORANDUM by defendant John Morrell & Co in support of motion for leave to file and serve untimely answer [26-1] (FE) (Entered: 09/25/2000)
28 CERTIFICATE OF SERVICE by defendant John Morrell & Co (FE) (Entered: 09/25/2000)
29 MOTION for attorney Leslie R. Stellman to appear pro hac vice by defendant John Morrell & Co (SKM) (Entered: 09/26/2000)

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09/25/2000
09/25/2000 09/25/2000
10/02/2000 10/23/2000 10/23/2000 10/23/2000 10/23/2000 11/09/2000
01/04/2001

29 ORDER by Lawrence L. Piersol granting motion for attorney Leslie R. Stellman to appear pro hac vice [29-1] (cc:all counsel) (SKM) (Entered: 09/26/2000)
30 CERTIFICATE OF SERVICE by defendant John Morrell & Co (SKM) (Entered: 09/26/2000)
31 ORDER by Lawrence L. Piersol finding the motion for default judgment against John Morrell & Co [21-1] denied as moot (cc:all counsel) (SKM) (Entered: 09/26/2000)
PRO HAC VICE fee paid by John Morrell & Co. for Leslie R. Stellman (DLS) (Entered: 10/02/2000)
32 SUBPOENA for Terry Hanson returned executed (FE) Modified on 10/24/2000 (Entered: 10/24/2000)
33 SUBPOENA for Rose Pettibone returned executed (FE) Modified on 10/24/2000 (Entered: 10/24/2000)
34 SUBPOENA for Todd Pruitt returned unserved (FE) Modified on 10/24/2000 (Entered: 10/24/2000)
35 SUBPOENA for A.W. Agnew returned unserved (FE) Modified on 10/24/2000 (Entered: 10/24/2000)
36 ORDER by Lawrence L. Piersol granting motion for leave to file and serve untimely answer [26-1] answer on file to serve as defendant's answer to complaint (cc:all counsel) (SLL) (Entered: 11/09/2000)
37 CONSENT DECREE by plaintiff EEOC, defendant John Morrell & Co (FE) (Entered: 01/05/2001)

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