,I "

1 WILLIAM R. TAMAYO -- #084965 (CA)

JONATHAN T. PECK -- #12303 (VA)

2 CINDY O'HARA -- #114555 (CA)

EQUAL EMPLOYMENT OPPORTUNITY

3 COMMISSION

San Francisco District Office

4 350 The Embarcadero, Suite 500

San Francisco, California 94105 5 Telephone: (415) 625-5653

E-filing

Facsimile: (415) 625-5657

6

Attorneys for Plaintiff Equal Employment Opportunity Commission

7

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

JSW

11

12 EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

13

)

Plaintiff,

)

14

)

v.

)

15

)

BALLY TOTAL FITNESS CORPORATION,)

16

)

Respondent.

)

17

)

)

18

)

297
COMPLAINT Civil Rights - Employment Discrimmation
JURY 1RIAL DEMAND

19

NATURE OF THE ACTION

20

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

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

22 national origin and religion, and to provide appropriate relief to Mr. Sukhdev Davin

23 Singh Dhaliwal who was aggrieved by Defendant's unlawful practices. Plaintiff alleges

24 that Defendant, Bally Total Fitness Corporation, unlawfully refused to hire Mr.

25 Dhaliwal because of his national origin, Indian, and/ or his religion, Sikh. Plaintiff

26 further alleges that Defendant failed to maintain records as required Section 709(c) of

27 Title VII, 42 USc. § 2000e-8(c).

28 II

COMPLAINT

Page I

1

JURISDICTION AND VENUE

2

1. Jurisdiction of this Court is invoked pursuant to 28 usc. §§ 451, 1331,

3 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706 (f)
4 (1) and (3) ofTitle VII of the Civil Rights Act of 1964, as amended (Title VII), 42 usc. 5 §2000e-5 (f) (1) and (3), and Section 102 of the Civil Rights Act of 1991,42 USc.

6 §1981(a).

7

2. The unlawful employment practices alleged herein were committed in the

8 State of California, thus venue is proper /lin any judicial district in the State in which the

9 unlawful employment practice is alleged to have been committed./I (§706(f)(3) of Title

10 VII, 42 USc. §2000e-5(f)(3)). Venue is therefore proper in the United States District

11 Court for the Northern District of California.

12

INTRA-DISTRICT ASSIGNMENT

13

3. This action is appropriate for assignment to San Francisco/Oakland as the

14 administrative charges underlying this case were investigated in the San Francisco

15 District Office of Plaintiff Equal Employment Opportunity Commission, and the records

16 related to that investigation are in San Francisco.

17

PARTIES

18

4. Plaintiff, the Equal Employment Opportunity Commission

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

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

21 to bring this action by Sections 706(f)(1) and (3) of Title VII, 42 U.s.c. §2000e-5(f)(1) and

22 (3).

23

At all relevant times, Defendant Bally Total Fitness Corporation

24 ("Defendant") has continuously been, and is now, a Delaware corporation, qualified

25 and doing business in the state of California and has continuously had and does now

26 have at least 15 employees.

27

6. At all relevant times, Defendant has continuously been, and is now, an

28 employer engaged in an industry affecting commerce within the meaning of Sections

COMPLAINT

Page 2

1 701(b), (g) and (h) of Title VII, 42 USc. §§ 2000e(b), (g) and (h).

2

STATEMENT OF CLAIMS

3

FIRST CLAIM FOR RELIEF

4 Violation of Title VII of Civil Rights Act for Discrimination Based on National Origin
and/or Religion 5

6

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

7 Party Sukhdev Davin Singh Dhaliwal ("Charging Party") filed a charge with the

8 Commission alleging violations of Title VII by Defendant. All conditions precedent to

9 the institution of this lawsuit have been fulfilled.

10

8. Since at least on or about June 11, 2004, Defendant has engaged in

11 unlawful employment practices of discrimination based on national origin and! or

12 religion in violation of Section 703 (a) (1) of Title VII, 42 USc. § 2000e-2(a)(1), by

13 refusing to hire Charging Party because of his national origin and! or his religion.

14

9. The effect of the practices complained of above in paragraph 7 has been to

15 deprive Charging Party of equal employment opportunities and otherwise adversely

16 affect his employment status because of his national origin and! or religion.

17

10. The unlawful employment practices complained of above in paragraph 7

18 were and are intentional.

19

11. The unlawful employment practices complained of above in paragraph 7

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

21 Charging Party.

22

SECOND CLAIM FOR RELIEF

23 Violation of Title VII of Civil Rights Act for Failure to Make and Preserve Records

24

12. Plaintiff Commission hereby incorporates the allegations of paragraphs 1

25 through 7 above as though fully set forth herein.

26

13. Since at least on or about June 11, 2004, Defendant has failed, in violation

27 of Section 709(c) of Title VII, 42 USc. § 2000e-8(c), to make and preserve records

28 relevant to the determination of whether unlawful employment practices have been or

COMPLAINT

3

1 are being committed.

2

PRAYER FOR RELIEF

3

Wherefore, the Commission respectfully requests that this Court:

4

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

5 assigns, and all persons in active concert or participation with it, from engaging in

6 discrimination based on national origin and/or religion against its employees.

7

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

8 programs which provide equal employment opportunities for persons of Indian

9 national origin and persons of Sikh religion, and which eradicate the effects of its

10 unlawful employment practices.

11

C. Order Defendant to make whole Charging Party by providing appropriate

12 back pay, lost wages and benefits with prejudgment interest, and other affirmative relief

13 necessary to eradicate the effects of its unlawful employment practices.

14

D. Order Defendant to make whole Charging Party by providing

15 compensation for past and future pecuniary losses resulting from the unlawful

16 employment practices complained of above, including but not limited to medical

17 expenses or other out of pocket expenses in amounts to be determined at trial.

18

E. Order Defendant to make whole Charging Party by providing

19 compensation for past and future non-pecuniary losses resulting from the unlawful

20 practices complained of above, including but not limited to pain and suffering,

21 emotional distress, indignity, loss of enjoyment of life, loss of self-esteem and

22 humiliation, in amounts to be determined at trial.

23

Order Defendant to pay Charging Party punitive damages for its malicious

24 and reckless conduct complained of above, in amounts to be determined at trial.

25

G. Order Defendant to make and preserve all records, in accordance with the

26 provisions of Section 709(c) of Title VII of the Civil Rights Act of 1964, 42 USc. § 2000e-

27 8(c), relevant to the determination of whether unlawful employment practices have been

28 or are being committed.

COMPLAINT

Page 4

1

H. Grant such further relief as the Court deems necessary and proper in the

2 public interest.

3

L Award the Commission its costs of this action.

4

JURY TRIAL DEMAND

5

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

6 hereby demands a jury trial.

7

JAMESL. LEE

8

Deputy General Counsel

GWENDOLYN YOUNG REAMS

9

Associate General Counsel

10

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

11

Office of the General Counsel

Washington, DC 20507

12

13 Dated: r-I!~
14

15
16 Dated: s{zjzPot.
17

18

19 Dated:
20

21

EQUAL EMPLOYMENT OPPORTUNITY

22

COMMISSION

San Francisco District Office

23

350 The Embarcadero, Suite 500

San Francisco, CA 94105 24

25

26

27

28

COMPLAINT

Page 5

 
 1 WILLIAM R. TAMAYO -- #084965 (CA) JONATHAN T. PECK -- #12303 (VA)
2 CINDY O'HARA -- #114555 (CA) EQUAL EMPLOYMENT OPPORTUNITY
3 COMMISSION San Francisco District Office
4 350 The Embarcadero, Suite 500 San Francisco, California 94105
5 Telephone: (415) 625-5653 Facsimile: (415) 625-5657
6 Attorneys for Plaintiff Equal Employment Opportunity Commission
7

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

12 EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

13

)

Plaintiff,

)

14

)

v.

)

15

)

BALLY TOTAL FITNESS CORPORATION,)

16

)

Respondent.

)

17

)

)

18 _______________________________________ )

Civil Action No. C-06-2974 JSW CONSENT DECREE

19

Plaintiff Equal Employment Opportunity Commission (“Commission”) filed this action

20 under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to

21 correct alleged unlawful employment practices on the basis of national origin (Indian) and/or

22 religion (Sikh), and to provide appropriate relief to Sukhdev Dhaliwal whom the Commission

23 alleged was adversely affected by such practices. The Commission alleged that Defendant Bally

24 Total Fitness Corporation (“Bally”) subjected Mr. Dhaliwal to discrimination based on his

25 national origin and/or religion, in violation of Title VII. Defendant has denied and continues to

26 deny the Commission’s allegations concerning liability and damages. The Commission and

27 Defendant Bally now seek to resolve this action as to each other and as between Bally and

28 Sukhdev Dhaliwal (“Charging Party”) without further contested litigation through the instant

CONSENT DECREE

Page 1

1 Consent Decree. This resolution does not constitute an admission of liability on the part of 2 Bally, nor constitute a finding on the allegations stated in the Commission’s Complaint.

3

The Court has reviewed this Consent Decree in light of the pleadings, the record herein,

4 and the applicable law, and now approves this Consent Decree.

5

THEREFORE IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

6 GENERAL PROVISIONS

7

1. This Court has jurisdiction over the subject matter and the parties to this action.

8 This Court retains jurisdiction over this Consent Decree during its term.

9

2. This Consent Decree constitutes a full and final resolution of the Commission’s

10 claims against Bally in this action.

11

3. This Consent Decree will become effective upon its entry by the Court, and will

12 expire according to its terms and without the need for further action by the Court or parties.

13

4. This Consent Decree is final and binding upon the parties to it, their successors

14 and assigns.

15

5. The Commission and Bally will each bear its own costs and attorneys fees in this

16 action.

17 GENERAL INJUNCTIVE RELIEF

18

6. Bally’s current managers and supervisors at the Fresno Area Clubs1 will comply

19 with all requirements of Title VII with respect to lawful hiring practices.

20

7. Bally’s current managers and supervisors at the Fresno Area Clubs agree not to

21 retaliate against Charging Party, or any other person, for participating in any manner in the

22 Commission’s investigation and the proceedings in this case. 23 SPECIAL INJUNCTIVE RELIEF

24
25
26 1.
27 2. 3.
28 4. 5.

Training
1The five “Fresno Area Clubs” are: Clovis, 781 W. Shaw Ave., Clovis, CA 93612 Blackstone & Shaw, 5137 N. Blackstone Ave, Fresno, CA 93710 First & Herndon, 6735 North First St., Herndon Village Shopping Center, Fresno, CA 93710 Shaw & Blythe, 4308 W. Shaw Ave., Shaw View Plaza, Fresno, CA 93722 Madera, 2330 W. Cleveland Ave., Hallmark Towne Center, Madera, CA 93637

CONSENT DECREE

Page 2

1

8. Bally will use an outside consultant, paid for by Bally, to provide equal

2 employment opportunity training concerning lawful hiring practices to current managers and

3 supervisors at the five Fresno Area Clubs during the twelve (12) month term of this Consent

4 Decree, such term to be measured from the entry of this Consent Decree. The training will

5 specifically include the subject of avoiding discrimination based on national origin and religion in

6 the hiring process.

7

9. If Connie Gordeau is no longer employed with the Fresno Area Clubs, but

8 continues to be employed by Bally during the term of this Consent Decree, Bally will ensure that

9 Ms. Gordeau attends the trainings, or is given equivalent training at the location where she is

10 employed.

11

Record Keeping and Reports

12

10. Within sixty (60) days after completing each training session described in

13 paragraphs 8 and 9, Bally will mail to counsel for the Commission a report containing the name

14 of the individual or organization which did the training, the date of training, an outline of the

15 training content, a list of all attendees and their job titles, and copies of pertinent materials

16 distributed at the training.

17

11. At least two times during the term of this Consent Decree, Bally will notify

18 counsel for the Commission whether it has received notice of any formal, written complaints of

19 hiring discrimination based on national origin or religion from employees or applicants for

20 employment in the Fresno Area Clubs, what steps were taken in response to the complaint(s), and

21 how the situation was resolved. For purposes of this paragraph, the term “formal” means filed

22 with an administrative agency.

23 MONETARY RELIEF

24

12. Bally will pay the total sum of $24,000.00, to Charging Party Sukhdev Dhaliwal as

25 monetary damages in complete satisfaction of the Commission’s claims against Bally as set forth

26 in its Complaint. This sum will be paid by check directly to Charging Party within fifteen (15)

27 business days of the entry of this Consent Decree, and will be mailed to him via certified mail at

28 an address to be provided to Bally by the Commission. A copy of said check and any transmittal

CONSENT DECREE

Page 3

1 letter will be sent to Commission counsel Cindy O’Hara at the San Francisco District Office of

2 the Commission.

3 SCOPE AND EXPIRATION OF CONSENT DECREE

4

13. This Consent Decree represents the full and final resolution of EEOC charge on

5 which this action was based.

6

14. This Consent Decree will be in effect for one (1) year, and will expire at midnight

7 of the date one (1) year after its entry by the Court, provided that Bally has substantially complied

8 with the terms of this Consent Decree. Bally will be deemed to have substantially complied if the

9 Court has not made any findings or orders that Bally has failed to comply with any of the terms of

10 this Decree.

11

15. Upon expiration of this Decree, the Court’s jurisdiction over the matter shall

12 conclude, unless the Court has, in the interest of justice, extended the Decree.

13

E-filing concurrence: I, Cindy O’Hara, attorney for Plaintiff Commission, attest that I

14 have obtained the concurrence of Rod Fliegel, attorney for Defendant Bally Total Fitness

15 Corporation for the lodging of this Consent Decree.

16 On Behalf of Plaintiff Commission:

On Behalf of Defendant:

17 Dated: April 13, 2007

Dated: April 13, 2007

18 EQUAL EMPLOYMENT OPPORTUNITY

LITTLER MENDELSON

COMMISSION

19

______/S/____________________

_______/S/_______________________

20 WILLIAM R. TAMAYO

ROD FLIEGEL

Regional Attorney

Attorneys for Defendant Bally Total Fitness

21

Corporation

______/S/____________________

22 JONATHAN PECK

Supervisory Trial Attorney

23

______/S/____________________

24 CINDY O’HARA

Senior Trial Attorney

25

ORDER

26

It is so ordered.

27

28 Dated:_____________________

____________________________________ U.S. District Court Judge

CONSENT DECREE

Page 4

 
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ADRMOP, CLOSED, E-Filing, STAYED
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:06-cv-02974-JSW

Equal Employment Opportunity Commission v. Bally Total Fitness Corporation Assigned to: Hon. Jeffrey S. White Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 05/03/2006 Date Terminated: 04/18/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Cynthia Senner O'Hara Equal Employment Opportunity Commission 350 The Embarcadero, Suite 500 San Francisco, CA 94105-1260 415/625-5653 Fax: 415-625-5657 Email: cindy.ohara@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan T. Peck U.S. EEOC 350 Embarcadero Street Suite 500 San Francisco, CA 94105-1687 415/625-5600 Fax: 415-625-5657 Email: Jonathan.Peck@eeoc.gov ATTORNEY TO BE NOTICED

William Robert Tamayo U.S. EEOC 350 Embarcadero Street Suite 500 San Francisco, CA 94105-1687 415-625-5645 Fax: 415-625-5657 Email: william.tamayo@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Bally Total Fitness Corporation

represented by Rod M. Fliegel

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Date Filed 05/03/2006
05/03/2006
05/03/2006 05/03/2006 05/11/2006
06/05/2006
06/12/2006 08/18/2006 08/21/2006 08/21/2006 10/06/2006

Littler Mendelson 650 California Street 20th Floor San Francisco, CA 94108-2693 415 433-1940 Email: rfliegel@littler.com ATTORNEY TO BE NOTICED

#

Docket Text

1 COMPLAINT against Bally Total Fitness Corporation (Filing fee waived). Filed byEqual Employment Opportunity Commission. (hdj, COURT STAFF) (Filed on 5/3/2006) Additional attachment(s) added on 5/5/2006 (hdj, COURT STAFF). (Entered: 05/04/2006)

2 ADR SCHEDULING ORDER: Case Management Statement due by 9/8/2006. Case Management Conference set for 9/15/2006 01:30 PM. (hdj, COURT STAFF) (Filed on 5/3/2006) Additional attachment(s) added on 5/4/2006 (hdj, COURT STAFF). (Entered: 05/04/2006)

Summons Issued as to Bally Total Fitness Corporation. (hdj, COURT STAFF) (Filed on 5/3/2006) (Entered: 05/04/2006)

CASE DESIGNATED for Electronic Filing. (hdj, COURT STAFF) (Filed on 5/3/2006) (Entered: 05/04/2006)

3 INITIAL SCHEDULING CONFERENCE ORDER: Case Management Conference set for 9/15/2006 01:30 PM. Case Management Statement due by 9/8/2006.. Signed by Judge Jeffrey S. White on 5/11/06. (jjo, COURT STAFF) (Filed on 5/11/2006) (Entered: 05/11/2006)

4 AFFIDAVIT of Service for Summons & Complaint with Acknowledgment of Receipt served on CT Corporation System on May 4, 2006, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Acknowledgment of service)(O'Hara, Cindy) (Filed on 6/5/2006) (Entered: 06/05/2006)

5 Respondent's ANSWER to Complaint byBally Total Fitness Corporation. (Fliegel, Rod) (Filed on 6/12/2006) (Entered: 06/12/2006)

6 STIPULATION (Joint) to Continue Case Management Conference and Related Dates by Bally Total Fitness Corporation. (Fliegel, Rod) (Filed on 8/18/2006) (Entered: 08/18/2006)

7 ORDER GRANTING 6 Stipulation to Continue Case Management Conference. Signed by Judge Jeffrey S. White on 8/21/06. (jjo, COURT STAFF) (Filed on 8/21/2006) (Entered: 08/21/2006)

Set/Reset Hearings: Case Management Conference set for 10/27/2006 01:30 PM. (hdj, COURT STAFF) (Filed on 8/21/2006) (Entered: 08/22/2006)

8 NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (O'Hara,

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10/06/2006 10/10/2006 10/11/2006 01/19/2007 01/22/2007
01/22/2007 03/19/2007 03/22/2007 03/22/2007 03/22/2007 04/04/2007 04/05/2007 04/05/2007

Cindy) (Filed on 10/6/2006) (Entered: 10/06/2006)
9 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options by Parties and Counsel (Fliegel, Rod) (Filed on 10/6/2006) (Entered: 10/06/2006)
10 STIPULATION (Joint) to Stay All Proceedings Pending Mediation by Bally Total Fitness Corporation. (Fliegel, Rod) (Filed on 10/10/2006) (Entered: 10/10/2006)
11 ORDER Granting 10 Stipulation. Signed by Judge Jeffrey S. White on October 11, 2006. (jswlc1, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/11/2006)
12 STIPULATION AND REQUEST FOR RELIEF FROM MEDIATION DEADLINE AND TO CONTINUE CASE MANAGEMENT CONFERENCE by Equal Employment Opportunity Commission. (O'Hara, Cindy) (Filed on 1/19/2007) (Entered: 01/19/2007)
13 ORDER GRANTING 12 STIPULATION FOR RELIEF FROM MEDIATION DEADLINE AND TO CONTINUE CASE MANAGEMENT CONFERENCE. Signed by Judge Jeffrey S. White on 1/22/07. (jjo, COURT STAFF) (Filed on 1/22/2007) (Entered: 01/22/2007)
Set/Reset Hearings: Case Management Conference set for 3/23/2007 01:30 PM. (hdj, COURT STAFF) (Filed on 1/22/2007) (Entered: 01/23/2007)
14 MOTION to Continue Case Management Conference filed by Equal Employment Opportunity Commission. (O'Hara, Cindy) (Filed on 3/19/2007) (Entered: 03/19/2007)
15 NOTICE by Bally Total Fitness Corporation of Non Opposition (Fliegel, Rod) (Filed on 3/22/2007) (Entered: 03/22/2007)
16 ORDER GRANTING REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE. Signed by Judge Jeffrey S. White on 3/22/07. (jjo, COURT STAFF) (Filed on 3/22/2007) (Entered: 03/22/2007)
Set Deadlines/Hearings: Case Management Conference set for 4/6/2007 01:30 PM. (hdj, COURT STAFF) (Filed on 3/22/2007) (Entered: 03/23/2007)
17 STIPULATION tto Continue Case Management Conference Two Weeks by Equal Employment Opportunity Commission. (O'Hara, Cindy) (Filed on 4/4/2007) (Entered: 04/04/2007)
18 ORDER GRANTING STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE. Signed by Judge Jeffrey S. White on 4/5/07. (jjo, COURT STAFF) (Filed on 4/5/2007) (Entered: 04/05/2007)
Set/Reset Hearings: Case Management Conference set for 4/20/2007

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04/13/2007 04/18/2007

01:30 PM. (hdj, COURT STAFF) (Filed on 4/5/2007) (Entered: 04/09/2007)
19 SETTLEMENT AGREEMENT Consent Decree by Equal Employment Opportunity Commission, Equal Employment Opportunity Commission. (O'Hara, Cindy) (Filed on 4/13/2007) (Entered: 04/13/2007)
20 ORDER Approving 19 Consent Decree. Signed by Judge Jeffrey S. White on April 18, 2007. (jswlc1, COURT STAFF) (Filed on 4/18/2007) (Entered: 04/18/2007)

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