FILJ:O ty
! :~!iiHi ~n/Jt:.:·; L·iS;i ilCT COUll
IN THE U"IITED STATES DISTRICT COlJRT[:::;::i:',:r,le ',;,':n;;:X2fJ FOR THE DISTRICT OF NEW MEXICO
05 FEB 24 AM 9: 03

EQUAL EMPLOYME"IT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

PAND ENTERPRISES, INC.,

)

d/b/a McDONALD'S RESTAURA"IT,

)

)

Defe,ndanl.

)

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

CL' ER,;,!-1''.LGr', Ur,U' U'-t"tl(liiUt~

No, CIY
.@~U. - 0 5 204
COMI)LAINT JURY TRIAL DEMAND

DJS RLP

NATURE OF THE ACTION

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

Rights Act of 1991,42 U.S.c. § 1981 against Pand Enterprises, Inc. (lib/a McDonald's Restaurant

("Defendant" or "McDomlld's") to con'eet unlawful employment practices on the bases of sexual

harassment and retaliation and to provide appropriate rcliefto Erick Herrera and Gerardo Reyes and

dass of males, including Edgar Hernandez. who were adversely affected by such practices. The

Commission alleges Erick Herrera, Gerardo Reyes, Edgar Hcrnandez and a duss of similarly situated

male employees were subjectcd to sexual harassmcnt by a male manager at McDonald's. The

Commission further alleges that aftcr Gerardo Reyes reported the harassment to McDonald's

managemcnt oftieials, he was retaliated against for making thccomplainl.

JURISDICTION AND VENUE

I.

Jurisdiction o(this Court is invoked pursuant to 28 U.S.c. §~ 451, 1331, 1337, 1343

\

and 1345. This action is authorized and instituted pursuant to Section 706 (fl(l) and (3) ofTitlc VII

of the Civil Rights Act of 1964, as amended, 42 U.s.c. § 2000c-5(1)(1) and (3); and Section 102

of the Civil Rights Act of 1991, 42 U.S.c. § 1981a.

2. The <!mploymcnt practices alleged to he unlawful were committed within the

jurisdiction of the United Statcs District Court tor the District oft\~w Mexico.

PARTIES

3.

Plaintiff. thc [qual Employment Opportunity Commission (the "Commission"), is

the agency of the United States of America charged with the administration, interpretation and

enforcement of Title VII, and is expressly authorized to bring this action by Section 706(1)( I) and

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

4. Defendant Pallli Enterprises, Inc., d/b/a McDonald's Restaurant (the "Employer").

a New Mexico corporation, has continuously been doing busincss in the State of New Mexico, and

the City of Albuquerque. and has at all relcvant times had at least filteen employees.

5. At all relevant times, Defendant McDonald's has continuously been an

employer engaged in an industry affecting commerce within the meaning of Section 70 I(b), (g) and

(h) ofTitle VII, 42 U.S.C. § 2000c(b). (g) and (h).

STATEMENT OF CLAIMS

6. More than thirty days prior to the institution of this lawsuit. Erick Herrera and

Gerardo Reyes (the Charging Parties) each filed a charge of discrimination with the Commission

alleging that McDonald's violated Title VII. All conditions precedent to the institution of this

lawsuit have been fulfilled.

2

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7. Charging Party Erick Herrera began working as a crcw member at the \1eDonald's restaurant located at 925 San Pedro Drive, N.E.. in Albuquerque. New Mexico, in July, 2(0), when he was 15 ycars old.
S. Charging Party Gerardo Reyes began working as a crcw mcmber at the McDonald's restaurant located 925 San Pedro Drive, N.E., in Albuquerque, Ncw Mexico. in October, 2003, when he was 17 years old.
9. Class Member Edgar Hernandez beganworking as a crew member at the McDonald's restaurant located at 925 San Pedro Drive, N.E., in Albuquerque, New :-'1exico, in November, 2003 when he was 17 years old.
10. Since approximately April, 2003, Defendant McDonald's has engaged in unlawful employment practices at its Albuquerque, New Mexico restaurant in violation of Section 703 (a) ofTitlc VII. 42 U.S.c. § 2000e-2(a), including subjecting Erick Herrera and Gerardo Reyes and a class ofma1e employees, including Edgar Hernandez, to a hostile work environment due to sexual harassment!
II. The sexual harassment to which Defendant McDonald's subjected Erick Herrera and Gerardo Reyes and a class of male employees, including Edgar Hemandez, includes, but is not limited to:
A) Unwelcomc and inappropriate physical contact, including touching the young employees on their face, back. stomach, hands, and groin area;
B) Unwelcome· and inappropriate remarks of a sexual nature. that included the manager offering the young male cmployecs money for oral sex, asking
3

young employees to exposc their genitals and asking young employees about thcir genitals. 12. Since at least Ylarch, 2004, Defendant YlcDonald's has engaged in unlawful retaliatory conduct practices in violation of Section 704(a) and Title VII, 42 U.S.c. § 2UOOe-3(a) when it reduced Gerardo Rcycs' work hours after hc rcportcd the unlawful sexual harassment by his supervisor to management officials. 13. Thc cffcct ofthe practices complained of in paragraphs 10 through 12 above has heen to deprive Erick Herrera and Gerardo Reyes and a class of similarly situated male cmployees of equal employmcnt opportunities and otherwise adversely affect their stalUs as employecs bccause ofthcir sex, malc. and because Gcrardo Rcyes complained about thc scxual harassment. 14. The unlawful employment practiccs complained of in paragraphs 10 through 12 abovc were intentional.
o IS. The unlawful employment practices complained ofin paragraphs I through 12 abovc
were done with malice or with reckless indi rrercnce to the federally protected rights of Erick Herrera and Gcrardo Reyes and a class ofmalc employees, including Edgar Hernandez.
PRA YER FOR RELIEF Wherefore, the Commission respectfully requests that this Comi: A. Grant a permanent injunction cnjoining Defendant McDonald's, its officers, successors, assigns, and all persons in activc concert or participation with it, from engaging in discrimination on the bases of sex or retaliation. B. Order Defendant McDonald's to institute and carry out policies, practices, and programs which providc equal employment opportunities for males and anyone who complains about
4

sexual harassmcnt, and which eradicatc the effects of its past and present unlawful cmployment practices.
C. Order Defendant McDonald's to make whole Gerardo Reyes by providing
appropriate hack pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its' unlawful employment practices.
D. Order Defendant McDonald's to make whole Erick Hen'era and Gerardo Reyes and a class of similarly situated males, including Edgar Hemandez, by providing compensation for past and future pecuniary losses resulting from the unlawful employment pnlctices descrihed above in amounts to he detcnnined at trial.
E. Order Defendant McDonald's to make whole Erick Herrera and Gerardo Reyes and a class of similarly situated males, including Edgar Hernandez, hy providing compensation for past and future non-pecuniary losses resulting from the unlawful practices described in paragraphs 10-12 above, including emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life, in amounts to he detennincd at trial.
F. Order Defendant McDonald's to pay Erick 1·len·era and Gcrardo Reyes and a class of similarly situated males, including Edgar Hcrnandez, punitive damagcs for its malicious and/or reckless conduct described in paragraphs 10-12 ahove in amounts to be determined at trial.
G. Grant such fimher relief as the Court deems necessary and propcr in the public interest.
H. Award the Commission its costs of this action. JURY DEMAND
The Commission requests a trial by jury on all questions of facl raised by its complaint.
5

DATED this 24th day of Febmary. 2005.
Respectfully submilled.
ERIC S. DREIBA:-.ID General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ISOI L Street. NW Washington. D.C. 20507
~AY;tL~ ivIAR'I .100 :-.IEILL Regional Attorney
C. EMANUEL SM ITII Supervisory Trial Allorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSIO:-.l
Phoenix District Offiee 3300 North Central Avenue. Suite 690 Phoenix. Arizona 85012
~ui1A.~.
VERONICA A. MOLINA Trial Attorney
LORETTA MEDINA Senior Trial Attorney
6

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EQCALEMPLOl'MEl\T OPPORTUNITY COMMISSION
Albuqucrquc Area Oftice 505 Marquette NW, Suite 900 . Albuquerque, New Mexico 87102 (505) 248-5231
Allorneys for Plaintiff

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CCll ITT-

IN THE U"JITED STATES DISTRICT CbU'R.'f!'I'''' )1;1" I:! \\I "'I:X;C(; ,

FOR THE DISTRICT OF "JEW lvlEXICO '

' ,

, MAR / - 2DD6

EQUAL EMPLOYMENT OPPORTUNIT'{ COMMISSION,
Plaintiff,
v.
rAND ENTERPRISES, INC., d/b!a McDONALD'S RESTACRA"lT,
Defendant.

r
, )

, ,
MATT~EW J, DYKMAN

)

, ' CUiiHf<

)

)

No. CIV·05'204 WllRLP

)

)

). '

)

)

)

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

The United States Equal Employment Opportunity CommissiOi (the "Commission" or

"EEOC") tiled this action against Pand EntcqJrises, Inc., d/b/a Pantl Restaurant ("Pand" or
* !
"Defendant") to enforce Title VII of the Civil Rights Act of 1964, as am~nded, 42 U.S.c. 2000e

* et seq. ("Title VII") and the Civil Rights Act of 1991, 42 L.S.c. 1981 a. In the Complaint, the

,

Commission

alleged

Erick

Herrera ,

and

Gerardo

Reyes

and

a

class

of,, similarly

situated

male

employees were subjected to sexual harassment at Pand: The Conll11issiO!\ lilrther alleged that after

Gerardo Reyes reported the harassment to Pand management officials. he ,was retaliated against for

making the complaint.

The parties do not object to the jurisdiction orthe Court over this action and waive their

rights to a hearing and the entry of findings of fact and conclusions of la,w. This decree does not ,

constitute an admission of liability by the defendant, nor an adjudication on the mcrits of the

1

,

allegations of the complaint.

.:~
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It is hert!by ORDERED, AD.Jt:DGED AI\D DECREED:

I.

This decree resolves all claims of the Commission against defendant, including

I

claims for back pay. compensatory and puniti\'e damages. interest, injunctive relieC attorney's fees

and costs arisiilg out ofthc issues in this lawsuit.

IN.Jt:I\CTION

2.

Defendant. its managers. agents, orticers. eliiployces. suc~essoi's and assigns

and all persons in active concert or participation with it. is enjoined for t:he duration of the decree

from discriminating against any cmployee hecause of his or her sex. including sexual harassment.

In addition. defendant. its managers, agents. officers, employees. succe~sors and assigns and all
I
persons in active concert or participation with it, are permanently enjoined Irom retaliating against

any employee who: (a) opposes practices made unlawliil by Title VII or ~ state cqual employment
0PP0l1unity statute; (b) makes a charge of discrimination or assists or pal1i~ipates in an investigation
;
or proceeding under Title VII or a state equal employmcnt opportunity stat(lte; or (c) files an internal

complaint of discrimination. This injunction will rcmain in-efrect for the,duration of the decree at

any facility operated by defcndant.

RELIEF TO CHARGII\G PARTY AI\J) CLASS MEMBERS

I

3.

In accordance with this decree. defcndant shall pay the tot11,1 amount of ninety

thousand dollars and zero cents (S90,OOO.00) (the "Settlement AmounC) to resolve this la\vsuit.

The Settlement Amount shall be distributed to the aggrieved persons as li,sted in Exhibit B. Pand shall isslle all c.1aimants a F0I111 1099 for their respective amounts.

4.

Within five (5) days of entry of the decree. Pand shall separately mail checks,

via certified mail to the aggrieved persons listed in Exhibit B. Within five days of the issuance of

2

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the checks. Pand will submit a copy ofthc checks and related correspondence to the Regional
I
Attorney. Equal Employment Opportunity Commission, 505 Marquette I\W. Suite 900,

Albuquerque, New Mexico 87102-2189.

5.

In response to any cmploymcnt inquiries or reference checks concerning

charging party Erick 1·len·era and Gerardo Reycs or the class mcmbers. defendant shall providc

only a neutral reference, which defcndant asserts is consistcnt with its usual practice. This I
provision shall remain in force for so long as Erick Herrcra and Gcrardo Reycs or the class

members use Pand as a reference and is not limited to the thrce-ycar durqtion of this decree.

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6.

Defendant shall not take any action against charging part); Erick Herrera,

.

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Gerardo Reyes, class members. or any witncss in this case in rctaliation for filing a charge of

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employment discrimination or for participating. assisting or testifying in this action.
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DEFENDANT'S CORRECTIVE POLICIES AND PRACTlO:S

7.

Dcfell\lant shall institute and carry out policies and practices at all facilitics

operated by defendant that wi II promote a work environment free from sex discrimination, '.

including policies and practices to prcvent sexual harassmcnt of its emplqyces and other .
, !
individuals, and that allow employees and othcr individuals to raise conce,rns or complaints ahout
mattcrs made unlawful by Title VII. whether alleged, perceived or actual ~vithout retaliation. To

assist defendant in its effort to promote a work environmcnt free of sex discrimination, sexual

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harassment and retaliation. defendant shall take the actions provided for in Paragraphs 8 through

9.

8.

Within thirty (30) days of cntry ofthc decree. defendant shall review its

existing policies on sex discrimination. including sexual harassment and retaliation. and make

.

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any changes necessary so that its policics comply with Title VII. Defendant shall ensure its
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written policies include a statemeilt that employees have the right to coniplain directly to EEOC
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or any state equal opportunity agency. Arter reviewing and making any hccessary revisions to its
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policies, defendant shall distribute a copy of its policy on scx discrimina!ion to each of its current
full and part-time employees withi;l 15 days of the ~evision, anuto each new cmployee hircd for I !
the duration of this decree within 15 days of their hirc.

9. Within thirty (30) days of entry of the decree, defendant shall provide its

employecs at all facilities operated by defendant with revised written policy statements and
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procedures regarding reporting and prevention of sexual harassment and retaliation. The policy

and procedure statements that are provided to defendant's employees sh~uld be designed to
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present easily understood, convenient, confidential and reliable procedure,s for reporting incidents
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of sexual harassmcnt and retaliation in all of defendant's facilitics. These procedures, at a

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minimum, shall provide as follows:

t ,

A. At least one cmployec in a supervisory or managerial posilion at each facility shall be designated to serve as investigativc officer for sexual h~rassmcnt issues;

B.

The

names,

rcsponsibilities,

work

locations,

and

tclcphon~
,

numbers

of

the

;

investigativc officers will routinely and continuously bc posted allll provided to all

, j
cmployees;

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C. All complaints of sexual harassment or retaliation, whcther written or oral,

including anonymous complaints, will bc takcn seriously and investigated;

D. Only those who have an immediate lieed to kno\\', including the investigative

officer,the allcgcd target ofharassl11cllt or rctaliation, the alleged harasser(s) or.

4

retaliator(s) and any witnesses, may find out the identity 9fthe complainant; ,
E. All parties contactcd in the course or an illvestigation will be advised that any
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retaliation or rcprisal against an individual who is an alleged targct of harassment
! or retaliation, who has made a complaint, or who has provided evidence in

connection with a complaint will not bc.tolerated and cou'ld result in disciplinary

action;

F. Each investigative officer will receive thorough training about sexual harassment

and will havc thc responsibility for expeditiously invcstigating all complaints.

This training shall consist of at least six hours in addition to that provideciunder

paragraph I I;

G. The investigative o nicer will recommend remcclialmcasui'cs, if appropriate, based
upon the results of the investigation, and defendant will p~omptlY consider ancl act

upon such recommendation;

H. The in\'cstigative onicer will maintain a file ori the origin1!1 complaint(s) and any

follow-up invcstigation;

i

I.

Defendant's managers, officials, agents oremployecs who engage in sexual

, harassmcnUlr retaliation, who fail to cooperate with company-sponsored

investigations of sexual harassmcnt or retaliation, or who refuse to implement

remedial measures will be advised that they may be sanctioned severely by

suspension or dismissal.

10. Within thirty (30) days ofcntry orthe decree, defendant shall post continuously
!
for a period of thirty six (36) months, in promincnt places lI'cquentcd by employees in all

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defendant's facilities, the Notice attached to this decree as ExhibitA. This ~otice shall be the

same t)1Je, style and size as in Exhibit A. This Notice shall a,lso be mad~ availalJle to employees

at a minimum in both English and Spanish.

II. Defendant shall provide training on sex discrimination, including scxual

harassment and retaliation, according to the following terms:

A. Defendant shall provide at least four (4) training sessionsjduring the term of this

decree. Two sessions shall be conducted in year one of the decree, and one ;

.

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session each shall be conducted in ye'ars two and three of the decree. All

,
managers, supervisors and employees at all of defcndant'* facilities shall attend

the training. Duplicative sessions may be held to accommodate staffing needs.
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Defendant shall be n:sponsible lor all costs associated with this training.

B. During the first year of the decree, the first training sessioll shall be conducted

within three months of the cntrv of this decree and the second training session

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shall bc conducted within nine months of the entry of this .deeree. During the

second and third years oflhe decree, at least one training session shall be

conducted each year.

C. Defendant shall scleel a qualified trainer and shall submit the trainer's name,

resume, training agenda and the date(s) of the proposed Ir~lining to thc Regiolial
!
Attorney oCthe Albuquerque Area Office of the Equal Employment Opportunity

Commission within forty-five days of the entry of this decree lor the first session

orthe lirst year and 45 days prior to the second session oCthe first year. During

the second and third years of"the decree, the above in[orm~tion shall be subliliHed

6

to the Regional Attorney at least ninety days prior to the seminar-training session.

The Commission shall have thirty days from the date ofr~ceipt of the infollllation

described above to accept or reject the proposed consultadt/kcturer and/or the

contents of the scminar. In the event the Commission docs not approve

defendant's designated consultant/Jcicturer, the Commissi~n shall designate the

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consultant/lecturer at a cost not to exce<:d $1,000.00 per seminar-training scssion

which shall be paid by defendant.

D. The training shall include a minimum of one (I) hour of i,;struction. All

.

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personnel designated in Paragraph A shall both register and attend the training.

The registry of attendance shall be retained by defendant at, least for the duration
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of the decree.

E. Thc training. at a minium. shall inclildc the subjccts (If: what constitutes sex

discrimination, including scxual harassment. harassment bascd on gendcr, and
I
retaliation; that sex discrimination in the hiring. firing, cOlilpensation, assignment

or other terms. conditions or privileges of employment and retaliation violates

Title VII; how to prt!vent sex discrimination and retaliatiOll; how to provide a , , I
work cnvironment free from sex discrimination, sexual harassment and

rctaliation; and to whom and by what" means employees may complain if they feel .

they have been subjected to sex discrimination. sexual hara,,ssment and retaliation
in the workplace.

1'. Immediately following the training sessions, defendant's highest ranking

managerial official shall speak to the employees about: (I) .potential discipline that

7

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can be taken against supervisors, managcrs and employces who commit acts of
sex discrimination or retaliation, or who allow sex discrimination or retaliation to
,
occur in the workplace; (2) the importance of maintaining.,an environment free of scx discrimination and retaliation; and (3) the employer's ~olicies regarding sex
I
discrimination, sexual harassment and retaliation. This til\le shall not be counted.
toward the one-hour minimum training required in paragraph II.D.
G. For tilt: duration of this decrce, at or around the time ofhii,e. employees hired .aller
the anllual training is presented, shall view a videotape of thc training and/or a
professional training tape which covers the topics set forth in paragraph II.E. and ,
shall bc given any written material disseminated at thc training. I
12. Thc Commission, at its discrction. may dcsignatc Commission reprcsentatives to
attend and participate in thc training sessions described above.
REPORTING BY DEFF.:"IDANT AND ACCESS BY'EEOC
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13. Dcfendant shall rcport in writing and in aftidavit form to t,,re Regional At-torncyof
I the Commission's Albuquerque Area Oftice at 505 Marquette N\V, Suite pOU, Albuquerque, New
Mexico 87102-2189, beginning six months from the datc of the entry of this decree, and
thereafter every six months for the duration of the decree thc following in'fonnation, unless
otherwise speci fied:
A. Any changes. modifications, revocations. or rcvisions to its policics and
procedures which conccrn or affect the subject of sex discrimination, including
sexual harassment and retaliation. ,
B. The name; address, position. social security number and tC,lcphonc number of any
8

.....,.

employee who, during the six months preceding th~ report, has brought allegations of sex discrimination, harassmenl,~oi' retaliatio~ arising t)'om activities

in

dcfeljdant's

lacilities

against

dcfeli,blit ,

.o-,'.r.' i-ts

IJ<:rsonnd,inciuding"but

110(' ..,.

liinitcd to. management orticials, wlldors. agents, or employees. The nature:of

th-e

cOIi'lplaint,investigatory .

cffixts nlade ,.

!;_y.defendant

and

the

corrective

action,

taken, ir any, shall be spccilicd.
. ·i.
C. An affi~la\'it by defendant stating tl;e training' rcq~lired in paragraph 12 of th\s

decree was conducted. The affidavit si,;Ii'bc'provided witl;in thirty (30) days,
. ' ...
alier each training session has been conducted.,

D. Withinthirty (30) days after training' sc?sio'nh:is been conductcd, a copy,ofthe,
of registries persons attending each ofthc'seminar-training sessions required in

paragraph 12 of this decree and a list of current employees on (he day of the . " - ..
seminar-tmiliing session.

E. . ' Anal'lidavit by defendant stating the '-i~tici:: rCl]uircd in paragraph 10 orthis '

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decree was posted and the locations whei'c it was posted.

14.' 'Tile 'Commission, upon reasonahle iHJlice, shall· have the right to enter a n d ,

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inspect the premises of defendant's lacilitics to ensure compliance with this dccrec and kderal, ' '

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anti-discrimination I,i\vs.

.COSTS AI'iD DURATlOI'i

15. Each party shall bear its costs and attorneY's fees incurred as a result of this action

through the entry of this decree.

.',

... 16.

The dura_t.:i. o..ll.

oCthis

decree

shall

b

e

.

t

h

r

e
-'

e .

veal's (3] .. .,.::;~.

..

,fr. om

its

cnlr\.,'.

This Court shall

;,

9

retain jurisdiction of this action for the duration of the "decree, during which!the Commission may

i

"

petition this Court for compliance with this decree. Should the Court determine that defendant

has not complied with this decree, appropriate relief, including extension of this decree for such
I ,
period as may be necessary to remedy its non-compliance, may be ordered. !

17. This decree shall expire by its own tenns at the end of three (3) years after entry,

\\Iithout further action by the parties.

18. The parties agree to entry of this decree and judgment subject to final approval

by the Court.
ENTERED AND ORDERED this"1 '1'day 0~i006.

APPROVED AND CONSENTED TO:

JAMESL. LEE

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"Deputy General Counsel

I

GWENDOLYN YOUNG REAMS Associate General Counsel

;
EQUAL EMPLOYMENT
OPPORTUNITY CONiMISSlON 180 I L Street, NW
W;;;;J~

MARYJ~
Regional Attorney "

" 10 "

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d~~·~
V~-d~rman, Esq.
Jennifer Davis Hall, Esq. MILLER STRATVERT. P.A. P.O. Box 25687 Albuqucrquc, NM 87125-0687 Telephonc: (505) 842-1950 Fax: (505) 243-4408
Altorneys for Defendant

Supervisory Trial Altdrncy
.
EQUAL EMPLOYMENT OPf>ORTUl\ITY COM\1ISSrO\l 3300 \I. Ccntral Ave., Suitc 690 Phocnix, Arizona 85012

Veronica A. Molina Trial Attorney

Lorelta Medina Scnior Trial Altorncy

EQUAL EMPLOYMENT

.0PPORTll\ITY COMMISSION

Albuquerque Area Ortiee

505 \1arquelte NW, S'uitc 900

Alhu(juert[ue, NM 87,102-2189
Telephone: (505) 24815231

Fax: (50S) 248-5217 1

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Altomeys for Plaintiff

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~OTlCE TO ALI.. EMPLOYEES

OF PAO'ID Et'iTF.RPRiSF.S, INC~,DIB/A

i\IcDOJ\ALD'S RESTAURANT

This Notice is posted pursuant to a Consent De'crcc 'cillcrcd into between Pando

Entcrprises, Inc .. d/b/a Pand Restaurant ("Pand") and 'the Equal Employment

Opportunity Commission (EEOC).

.

It is unlawful under the federal law (Title VII Mthe CiVil Rights Act) and state.

law to discrimii,atc against an employee 011 the biisis ofscx in hiring. liring.

compensation or other terms. and conditions or privileges of emplc~yment.

including sex lIn'l harassmcil t.

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P;lI1d prohibits all forms of sexual harassnii.'Jit.· Pmhlbiic'd se.\[wl harassment indudes;
- but is not limi.t. cd t.o. thc follo\\'in1!. conduct: '.
.I. ullweIc.ome touching of a sexual natwc; 2. unwelcome discussion of scxual.,ioke·s· and sexual behavior:
.3'. unwelcome requests I"r dates, sexlJaCfav'ors aJid propositions; and· .
4. un\\'elcome distribution in the \\'orkplacc of carWons. pictures or draw.ilig{ of.a sexual nature.

Pand shallnllt discriminate on the basis of sex and shall not retaliate against allY

employee who opposes a practice made unbw lit! under' federal law. Ii les. assists·

or participates in the Ii ling of a charge of <liscrimi;wtion or participates in any

investigation uIlder Tille Vll. or who files a gricv;incc alleging disc:rimination.

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........

:

If

you

'. .~ believc

you

arc

being

sexually

hara~sed.

'--..
discriminated

against

or

retaliated

against

you should rep~rt this to your manager or the designattd investigative officer. '.

. .

at your workplace.

..... , . ,. .

If you believe you ha\'e been discriminated against by Pand you havc the right to seck assistance'll'om:

I ) Equal EmplOyment Opportunity CommissiOli (EEOC), 50S·Marquctte..

Suite 900. AlblJqLl~rqlJe. :-.lew i'vlexico S~.l ~)2. I-SOO-<i<i9-4000.

or

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2) The New \1exico Department of Labor. Human Rights. DiVision, 1596 . Pnche. eo St.. Suite 10;1, Santa Fe, New'Mc. xi- c(l 8. 7505' . (505) 827-68:l8. .
You havc thc right to file a charge \\'ith the EEOC or the Department of l.abor if you believe you arc being discriminated againsL

:EXIIIBIT A

'.'

- .-"'-;..-

I

(. .

D1STRIRUTION OF SETTLEMENT AMOUNT

Erick D. Herrera

Compensatory damages in the '1I110U~1l of thirty-three thousana dollars and zero cents (533~000.00)

Gerardo Reyes

Compensatory damages in the amou;ll of thirty-one thousand dollars and zero cents ($31,000.00) ,

Edgar E. Hernandez Compensatory damages in the amou~lt of nineteen. thousand dollars and zero cents (5 19~()()O.r)0)

Phillip Apodaca

Compensatory diinages in thl' amou~Jt of seven thousand dollars and zero cents (57,000.00)
I

(
. c
EXHIBIT B

 
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MTNDDL, REFER, TERMED
U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:05-cv-00204-WJ-RLP

EEOC v. Pand Enterprises, In Assigned to: District Judge William P. Johnson Referred to: Magistrate Judge Richard L. Puglisi Demand: $0 Case in other court: Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 02/24/2005 Date Terminated: 03/07/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C Emanuel Smith EEOC 3300 N Central Ave #690 Phoenix, AZ 85012 (602) 640-5033 Fax: 640-5009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric S Dreiband EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwendolyn Young Reams EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L Lee EEOC Legal Counsel Office 1801 L Street, NW

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V. Defendant Pand Enterprises, Inc doing business as McDonald's Restaurants
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Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Loretta F Medina EEOC 505 Marquette, NW #900 Albuquerque, NM 87102 (505) 248-5230 Fax: 248-5217 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Jo O'Neill EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-2504 (602) 640-5000 Fax: (602) 640-5009 Email: mary.oneill@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica A Molina Equal Employment Opportunity Commission Legal Unit 505 Marquette N.W., Suite 900 Albuquerque, NM 87102 (505) 248-5231 Fax: (505) 248-5217 Email: veronica.molina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Virginia Anderman Miller Stratvert P.A. P. O. Box 25687 Albuquerque, NM 87125-0687 505-842-1950 Fax: 505-243-4408 Email: vanderman@mstlaw.com
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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/24/2005 02/24/2005 02/25/2005 02/28/2005 04/13/2005 05/27/2005 06/01/2005
07/12/2005 07/13/2005 07/13/2005 07/25/2005 08/02/2005 08/04/2005
08/04/2005

#

Docket Text

1 COMPLAINT w/jury demand (referred to Magistrate Judge Richard L. Puglisi) (nc) Modified on 02/28/2005 (Entered: 02/25/2005)
LETTER re: consent to proceed before a US Magistrate Judge (nc) (Entered: 02/25/2005)
2 NOTICE by plaintiff of refusal to consent to proceed before a U.S. Magistrate Judge (sl) Modified on 03/03/2005 (Entered: 02/25/2005)
3 MINUTE ORDER: Case reassigned from Magistrate Judge Don J. Svet to District Judge William P. Johnson (cc: all counsel*) (sl) (Entered: 02/28/2005)
SUMMONS issued as to defendant Pand Enterprises, In (sl) (Entered: 04/13/2005)
4 ANSWER by defendant [1-1] (dmw) (Entered: 05/31/2005)
5 INITIAL SCHEDULING ORDER by Magistrate Judge Richard L. Puglisi Rule 16 scheduling conference set for 7/27/05 at 9:00 am; provisional discovery plan and IPTR due on 7/20/05 (cc: all counsel*) (sl) Modified on 06/06/2005 (Entered: 06/01/2005)
6 MINUTE ORDER: by the Clerk of Court Rule 16 scheduling conference reset for 8/2/05 at 9:00 am before Magistrate Judge Richard Puglisi in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 07/12/2005)
7 CERTIFICATE of service by plaintiff of initial disclosures to counsel on 7/13/05* (sl) (Entered: 07/13/2005)
8 CERTIFICATE of service of initial disclosures by deft to counsel on 7/13/05 (jrm) (Entered: 07/14/2005)
9 ATTORNEYS' PROVISIONAL DISCOVERY PLAN (jm) (Entered: 07/26/2005)
10 CLERK'S MINUTES: before Magistrate Judge Richard L. Puglisi Rule 16 scheduling conference held (jrm) (Entered: 08/02/2005)
11 INITIAL PRE-TRIAL REPORT by District Judge William P. Johnson and Magistrate Judge Richard L. Puglisi ; Discovery set for 12/30/05 ;mtn filing ddl set for 2/16/06 ; proposed pretrial order due 5/4/06 ; pretrial conference set for 9:00 am on 6/19/06 ; jury trial set for 9:00 am on 7/5/06 ; Estimated # of Trial Days: 7-10; Chances of Settlement: Unknown (cc: all counsel) (sl) (Entered: 08/04/2005)
12 ORDER by Magistrate Judge Richard L. Puglisi setting settlement conference for 12/20/05 at 9:00 am (cc: all counsel*) (sl) (Entered: 08/04/2005)

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13 CERTIFICATE of service by plaintiff of first supplemental disclosure to counsel on 8/15/05 (sl) (Entered: 08/16/2005)
14 ORDER by District Judge William P. Johnson of consent decree as described herein dismissing case (cc: all counsel) (sl) (Entered: 03/07/2006)

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 Pand Enterprises to Pay $90,000 to Young Men Who Were Sexually Har...

http://www.eeoc.gov/press/3-10-06a.html

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE March 10, 2006

CONTACT: Mary Jo O'Neill Regional Attorney (602) 640-5044
Veronica Molina-Cunningham Trial Attorney (505) 248-5231 TTY: (505) 248-5240

PAND ENTERPRISES TO PAY $90,000 TO YOUNG MEN WHO WERE SEXUALLY HARASSED BY MALE
SUPERVISOR

EEOC Settles Suit Alleging Teen Harassment, Retaliation, at McDonald's Franchise
ALBUQUERQUE, N.M. -- The U.S. Equal Employment Opportunity Commission (EEOC) today announced it has settled, for $90,000 and other relief, its sexual harassment and retaliation lawsuit against Pand Enterprises, Inc., doing business as a McDonald's restaurant franchise, for subjecting a class of teenage male employees to sexual harassment by a male supervisor.
The EEOC's lawsuit, EEOC v. Pand Enterprises, Inc., d/b/a McDonald's Restaurant (Civil Action No. CIV- 05-204 in U.S. District Court for the District of New Mexico), alleged that the supervisor's abuse of the young workers included unwanted touching, requests for sex and sexual remarks. The agency further charged that one young male employee's work hours were cut in retaliation for opposing the sexual harassment. The young men, some who were only 15 years old at the time, worked as part-time crew members at the McDonald's franchise at 925 San Pedro N.E. in Albuquerque.
"We commend Pand Enterprises for working cooperatively with us to reach this agreement," said EEOC Phoenix Regional Attorney Mary Jo O'Neill. "The consent decree includes important provisions to ensure that discrimination does not occur again at this workplace."
As part of the settlement, in addition to the monetary relief, Pand Enterprises entered into a consent decree which was submitted to and approved by the federal district court. The decree requires training and other relief to prevent future discrimination. Sexual harassment and retaliation violate Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy) or national origin and protects employees who complain about such offenses from retaliation.
EEOC Phoenix District Director Chester V. Bailey said, "We are hopeful that this settlement will help other young workers become aware of their rights under Title VII. No covered employee, no matter the age, gender, or citizenship status, should be afraid to report workplace discrimination or harassment to the EEOC."
Edgar Hernandez, a class member, stated in Spanish, "Yo estoy muy agradecido al EEOC por sus esfuerzos y muy contento que se resolvi¢ este caso. Mi esperanza es que por medio de esta resoluci¢n, manejadores y empleados, incluyendo empleados jovenes, aprendan algo de sus responsabilidades y derechos bajo la ley." Translation: "I am very grateful to the EEOC for its efforts and very happy that this case was resolved. My hope is that through this settlement, managers and employees, including young employees, will learn something about their responsibilities and their rights under the law."
In September 2004, the EEOC launched its national Youth@Work initiative a comprehensive outreach and education campaign designed to inform teens about their employment rights and responsibilities and to help employers create positive first work experiences for young adults. In the program's first year, approximately 850 Youth@Work events reaching more than 72,000 students, education professionals, and employers were hosted across the country. Further information about the Youth@Work campaign, including how to schedule a free Youth@Work outreach presentation, is available on the agency's web site at http://www.eeoc.gov/initiatives/youth/index.html. Specific EEOC-related information for teens is available on the Youth@Work web site at http://www.youth.eeoc.gov.
In addition to enforcing Title VII, the EEOC enforces the Age Discrimination in Employment Act (ADEA), which

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protects workers age 40 and older from discrimination based on age; the Equal Pay Act, which prohibits gender-based wage discrimination; the Rehabilitation Act, which prohibits employment discrimination against people with disabilities in the federal sector; Title I of the Americans with Disabilities Act (ADA), which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; and sections of the Civil Rights Act of 1991. Further information about the EEOC is available on the agency's web site at www.eeoc.gov.
This page was last modified on March 10, 2006.

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 EEOC Sues McDonald's Franchises in Arizona and New Mexico For Se...

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE February 24, 2005

CONTACT: Mary Jo O'Neill Regional Attorney (602) 640-5044
Veronica A. Molina Trial Attorney (505) 248-5231
Sally C. Shanley Trial Attorney (602) 640-5032 TTY: (505) 248-5240

http://www.eeoc.gov/press/2-24-05.html

Pictured (left to right) are Phoenix Regional Attorney Mary Jo O'Neill and Vice Chair Naomi C. Earp
EEOC SUES McDONALD'S FRANCHISES IN ARIZONA AND NEW MEXICO FOR SEXUAL HARASSMENT OF YOUNG WORKERS
PHOENIX -- The U.S. Equal Employment Opportunity Commission (EEOC) today announced at a press conference that it has filed two employment discrimination lawsuits on behalf of teen workers against franchises of McDonald's restaurant in Arizona and New Mexico. The first suit was filed against Pand Enterprises, Inc. for same-sex harassment and retaliation against a class of young men employed at McDonald's in Albuquerque, N.M. The second suit was filed against GLC, Inc., an Arizona corporation, for sexual harassment against a class of young women at its McDonald's restaurant in Cordes Junction, Ariz.
"Employers must recognize their responsibility to assure that young workers one of the most vulnerable segments of the labor force are not harassed by supervisors or co-workers," said Chester Bailey, EEOC's Director of the Phoenix District Office, which has jurisdiction for Arizona, Utah and New Mexico. "These cases involve a clear failure of employers to abide by the law and respect the dignity of teen employees who are new to the workplace and may be unaware of their rights."
The EEOC's lawsuit, EEOC v. Pand Enterprises, Inc., d/b/a McDonald's Restaurant, Civil Action No. 05-CIV-204, filed in U.S. District Court for the District of New Mexico, claims that a class of young men were subjected to same-sex harassment by a male supervisor, including unwanted touching, requests for sex and sexual remarks. The lawsuit further claims that one young male employee's work hours were cut in retaliation for opposing the sexual harassment.
The Arizona lawsuit, EEOC v. GLC, Inc., d/b/a McDonald's Restaurant, CIV 05-0618 PCT PGR, filed in U.S. District Court for the District of Arizona, Prescott division, claims that a class of teenage female employees were subjected to sexual harassment by a male assistant manager. EEOC asserts that the sexual harassment included, but was not limited to, touching female employees in an unwelcome sexual manner grabbing them around the waist; rubbing their stomachs; grabbing their breasts; backing them against a wall while rubbing their shoulders; putting his hands in their pockets; and rubbing up against them. The suit says that although employees complained to management about the unlawful conduct, no appropriate action was taken to address and correct the situation. Additionally, EEOC says that one female employee's work conditions were made so intolerable that she had no choice but to resign, and thus was constructively discharged in violation of the law.
The alleged conduct in both cases violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy) or national origin and protects employees who complain about such offenses from retaliation.

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Mary Jo O'Neill, Regional Attorney at the EEOC's Phoenix District Office, said, "Federal law protects workers, including teens, against sexual harassment and other forms of discrimination. Employers who provide after-school or weekend job opportunities for young workers have a responsibility to abide by the law and provide a work environment free of harassment. Young workers need to know they do not have to put up with any type of discrimination period in order to attain or retain gainful employment."
The EEOC filed the suits after exhausting its conciliation efforts to reach voluntary pre-litigation settlements in both cases. The lawsuits ask the courts to order McDonald's to provide the harassment victims with appropriate relief, including back wages, compensatory damages, and punitive damages; to grant a permanent injunction enjoining this employer from engaging in any practice that discriminates on the bases of sex and retaliation; and to order the employers to institute and carry out policies and practices which eradicate sexual harassment, and prevent sexual harassment and retaliation from occurring in the future.
EEOC Vice Chair Naomi C. Earp, who was in Phoenix to host the press conference, said: "Each year, millions of teens work part-time or during the summer, and EEOC is committed to working with employers to help ensure that every teen's first work experience is a positive one. While the Commission strives to proactively prevent discrimination through education and outreach as a first resort, we will not hesitate to use our litigation tools when necessary."
In September 2004, Vice Chair Earp launched the agency's national Youth@Work Initiative to educate teens about their employment rights and responsibilities and to help employers create positive first work experiences for young adults. As part of that effort, EEOC recently entered into a partnership with the National Restaurant Association to promote fair and inclusive workplaces for teens in the food services industry. Further information about the Youth@Work campaign is available on the agency's web site at www.eeoc.gov. Specific EEOC-related information for teens is available on the new Youth@Work web site at www.youth.eeoc.gov.
This page was last modified on February 24, 2005.

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