The legal unit's responsibility for a case does not end when the court enters a consent decree. The next step is monitoring defendant's implementation of the resolution and, if necessary, taking steps to obtain compliance either informally or formally. For both monitoring and enforcement, it is important that the consent decree sets forth clearly what the defendant is required to do, when the defendant is required to do it, and the consequences for failure to do so. An imprecisely drafted consent decree will undermine attempts to monitor and ultimately enforce it. (To review settlement standards and procedures, see Settlement Guidance at Part 3, Section IV.A. of the Manual.)
The initial step in monitoring is identifying what the decree requires defendant to do and when. The next step is determining whether the defendant is complying with the terms of the settlement. The following is a suggested approach based on the practices of the Phoenix legal unit.
Legal units should develop procedures for monitoring consent decrees. Generally the assigned attorney will go over the terms of the decree with the assigned paralegal specialist. Using the decree as a guide, the paralegal should then prepare a detailed list of what tasks defendant is required to do and when defendant must do them. A standard practice is to place the information about each case on a compliance monitoring form or log. The compliance log should summarize pertinent information about the case and the requirements of the settlement, such as:
(A blank compliance log and a sample compliance log used by the Phoenix legal unit are Appendices 1 and 2 to this subsection.) After the paralegal has set up the compliance log, the attorney and paralegal should review it together.
Practice note: The sample compliance log dissects the consent decree paragraph-by-paragraph, clearly laying out the defendant's specific injunctive, monetary, and corrective responsibilities. Using this approach, EEOC can easily determine whether the defendant is in compliance.
The attorney and paralegal should also review the consent decree to identify any potential problem areas. For example, does the decree :
As part of the legal unit's compliance monitoring procedures, the Regional Attorney should have the paralegal maintain a separate file for each case in monitoring. The file should contain documents that the paralegal or attorney may need to refer to in monitoring. These will vary according to whether the case was resolved by consent decree.
The monitoring file for each case resolved by consent decree should contain a copy of the following documents:
Defendant's failure to comply with the consent decree may take various forms, some more serious than others. For example, defendant may completely fail to submit required reports or make required payments. On the other hand, defendant may be in partial compliance, having submitted late payments or incomplete reports. Defendant may also be in noncompliance if it changes or adds conditions for performing under the decree (for example, requiring claimants to execute a release that is more exacting than the one found in the decree before it will pay them).
All incidents of noncompliance should be addressed quickly. The decree may contain language specifying what the legal unit must do if it believes that defendant is in noncompliance, and when it must do so. If the legal unit does not act promptly, and in accordance with the decree's terms, it may waive its right to object to noncompliance. Generally, the legal unit's first step will be to notify the defendant that it believes defendant is not in compliance with the decree. The notice to defendant should identify the provision(s) in question (by section or paragraph number) and should state with particularity why the legal unit believes that defendant has not complied (or has only partially complied) with the provision(s). This effort may be sufficient to bring defendant into compliance.
What if defendant refuses to come into compliance with the consent decree after the legal unit has notified it of noncompliance? In that case, the assigned legal unit paralegal should prepare a report for the assigned attorney or the Regional Attorney identifying areas of noncompliance or partial compliance and documenting efforts to obtain compliance. The noncompliance report should also identify the defendant's contact person and attorney, giving the name, address, telephone number, e-mail address, and fax number for each.
In addition to maintaining case-specific monitoring records, the legal unit may want to have a paralegal prepare and maintain a log or tickler list encompassing due dates for all cases in monitoring. In addition to due dates, the legal unit's monitoring log should list the case names, and the names of assigned attorneys and paralegals. The legal unit's monitoring log may also track compliance with the required actions. (Appendices 3 and 4 are a blank legal unit monitoring log and a sample monitoring log used by the Phoenix legal unit.)
Where a defendant fails to comply with a settlement, the legal unit must take whatever steps are necessary to remedy the situation. Obtaining court enforcement will go most smoothly when: (1) the settlement document sets forth in detail each of the things that defendant has agreed to do and provides a due date for each (or a means for calculating it) and (2) the legal unit has documented the noncompliance and any attempts to obtain compliance before seeking court enforcement.
Evidence of noncompliance or partial compliance usually includes the documents which support the paralegal's noncompliance report, such as affidavits, correspondence to and from the defendant, reports made by defendant, and correspondence from charging parties, claimants, and their counsel, if any.
Before initiating enforcement proceedings, EEOC should also consider alternatives to court enforcement:
Before filing for enforcement, the Commission should give the defendant reasonable notice of its intent to seek enforcement. The consent decree may specify the manner in which EEOC must notify defendant. If so, the legal unit is bound to follow this procedure. If the settlement document is silent on notice to defendant, notice will be sufficient if it comes from a Commission attorney via telephone or a letter.
Where appropriate, the legal unit may file an action to enforce a consent decree (or other agreement resulting from a court order). Normally, the court will expressly retain jurisdiction over the operation of a consent decree, but even where this is not so, the court has inherent power to effectuate its orders. In addition to seeking enforcement of the terms of a consent decree, the legal unit may seek other relief including attorneys' fees and contempt sanctions, as appropriate.
If the consent decree is about to expire, and defendant is not in compliance, the legal unit will also want to move the court to extend the term of the settlement. The motion and accompanying draft order should be drafted so as to give the court continuing jurisdiction over the action throughout the enforcement proceeding. Alternatively, where the defendant is in partial compliance, the legal unit may move the court to extend the period of time for performance of specific settlement provisions.
The Commission may seek a court order enforcing a consent decree through any of several procedural devices, such as an "Application for an Order to Show Cause Why Defendant Should Not Be Held in Contempt of Court."
The relief that will be appropriate will depend on the circumstances. At the very least, the legal unit should seek compliance with the terms of the settlement or an appropriate modification to the settlement to ensure that compliance will be practicable. The legal unit may seek additional relief to compensate the claimants for delayed compliance (such as interest on back pay that is in arrears, etc.) and to insure defendant's future compliance. The EEOC should seek an award of attorneys' fees and the costs of the action.
Depending upon the gravity of the noncompliance with a consent decree or other court order, EEOC may ask the court to impose sanctions on defendant for contempt of court. Such sanctions should be tailored to the noncompliance in question. Before filing such a motion, the Regional Attorney must receive authorization from the Office of General Counsel's Sanctions Officer. (See Manual Part 1, Section I.F., Authorization to File Motion for Contempt, Attorney's Fees or Sanctions, for the requirements.) An example of a successful contempt action is the Phoenix legal unit's proceeding against Wal-Mart Stores for noncompliance with a consent decree entered in an ADA action. EEOC v. Wal-Mart Stores, Inc., 2001 U.S. Dist. LEXIS 8722 (June 13, 2001). Although Wal-Mart hired and trained the two hearing impaired charging parties and provided them with the agreed upon monetary relief, it failed to comply with other decree provisions, including filing timely affidavits confirming its compliance, providing interpreters and TTY communications for the charging parties, training staff in ADA requirements and methods of communicating with the hearing impaired, and development of a version of its computer-based learning modules in American Sign Language (ASL). The court imposed contempt sanctions on Wal-Mart, including the following:
|EEOC Atty: [Name and telephone number]||Filed/Entered: [Date]|
|Defendant's Atty: [Name, phone no., fax no., and e-mail]||Expires: [Date]|
|EEOC Atty:_______________________________________||Filed: November 28, 2000|
|Defendant's Atty:________________________________||Expires: November 28, 2003|
|¶||Provision||Due Date||Date Rec’d||Comments|
|1||Resolves all claims.|
|2||Permanently enjoined for duration of Decree from (a) sexually harassing employee and (b) retaliating against employee.|
$132,500 - Total Relief
$54,375 - (Name 1)
$11,875 - (Name 2)
$54,375 - (Name 1)
$11,875 - (Name 2)
|4||Issue 1099 tax forms for all payments.|
|5||First payment mailed directly to addresses supplied by Commission by certified mail. Copy of checks and correspondence.||12-06-00|
|5||Second payment mailed. Copy of checks and correspondence.||01-19-01|
|6||Institute and carry out policies and practices to keep work environment free from sexual harassment and retaliation. Take actions provided in Paragraphs 7-14.|
|DEFENDANT’S CORRECTIVE POLICIES AND PRACTICES|
|7||Post Exhibit A Notice.|
|8||Provide training on sexual harassment and retaliation - 3 live seminar training sessions each year. All Defendant employees will attend each session. May be videotaped – duplicative videotaped sessions allowed to accommodate staffing needs.|
|8||Submit name(s), address(es), telephone number(s) and resume(s) of proposed consultant/lecturer(s), together with the dates of the proposed training session and an outline of the contents of the training to RA.||01-28-01|
|8||Commission has 30 days from date of receipt of information to accept or reject the consultant/lecturer and/or the contents of the seminar.||02-28-01|
|8(B)||Witten notification of date, time and place of the first training session (10 days beforehand).||03-19-00|
|8(B)||First training date.||03-29-01|
|8(B)||Witten notification of date, time and place of the second training session (10 days beforehand).||03-19-02|
|8(B)||Second training date (10 to 13 months).||03-29-02|
|8(B)||Witten notification of date, time and place of the third training session. (10 days beforehand).||03-19-03|
|8(B)||Third training date (10 to 13 months)||03-29-03|
|8(C)||Seminar – training sessions shall be no less than 1-½ hours, plus 15 - 30 minutes of questions and answers. All employees will both register and attend the sessions. Registry of attendance retained for duration of Decree. Responsible for duplication cost.|
|8(D)||Seminar subject criteria. Review and explain policies set out in ¶ 12.|
|8(E)||Live training sessions - Defendant’s President and owner will speak to employees about discipline of violators, Defendant policies, personal commitment and investigation of complaints.|
|9||Hire outside trainer/consultant who is approved by EEOC to train each individual who is designated to investigate sexual harassment charges. Should employee designated to investigate charges leave Defendant, then Defendant must appoint a new person to such position within 30 days and provide new employee with training.||01-15-01|
|10||Revise written policy concerning sexual harassment and retaliation. Submit policy to EEOC for review.||12-14-00|
|10||Distribute policy to each current employee. Distribute to all new employees when hired and reissue to each employee once a year for the term of this Decree.||12-28-00|
|10||Post policy in a prominent place frequented by the employees.||12-28-00|
|11||Procedures to evaluate supervisors, managers and applicable human resources personnel on their performance in enforcing, following and responding to complaints. Failure to enforce will result in disciplinary action.||12-14-00|
|12||Promptly investigate all complaints of sexual harassment and retaliation. Must include a finding of whether sexual harassment occurred, credibility assessment, if necessary, interviews, witnesses identifed and notes.|
|13||No investigation documents will be retained in any of the complaining employees’ personnel file. All disciplinary actions will be retained in harasser’s personnel file. In those cases of no conclusion, investigation documents will remain in alleged harasser’s file.|
|14||Inform vendors and suppliers of sexual harassment policy and that failure to conform to the policy will bar them from conducting business with Defendant. All new vendors must be notified with 30 days of Defendant’s use.||12-28-00|
|REPORTING BY DEFENDANT AND ACCESS BY EEOC|
|15||EEOC has right to attend and fully participate in training sessions. Will provide Defendant with intent to attend.|
|16||Reports due - A-C required.||05-28-02|
|16||Reports due - A-C required.||11-28-02|
|16||Reports due - A-C required.||05-28-03|
|16||Reports due - A-C required.||11-28-03|
|17||Right to enter and inspect premises to insure compliance with Decree (reasonable notice).|
|COSTS AND DURATION|
|18||Each party bear own costs.|
|19||Expire by its own terms at the end of 36 months without future action.|
|20||Agree to entry of Decree.|
|Due Date||Case Name||Atty/Para||Requirement or Action||Resolution|
|Due Date||Case Name||Atty/Para||Requirement or Action||Resolution|
|11/05/00||Case 1||AAA/BBB||4th Report - Consent Decree Expires|
|11/15/00||Case 2||CCC/DDD||26th Payment|
|11/15/00||Case 3||EEE/FFF||Payments and copy to EEOC|
|11/20/00||Case 2||CCC/DDD||Copy to EEOC|
|11/27/00||Case 4||GGG/BBB||2nd training||6 months after 1st training. ¶5(b)|
|11/28/00||Case 5||III/BBB||CD Entered|
|12/08/00 CD Expires EXTENDED||Case 3||EEE/FFF||Report Due - Consent Decree Expires||Extended due to noncompliance 12-08-00|
|12/15/00||Case 2||CCC/DDD||27th Payment|
|12/15/00||Case 3||EEE/FFF||Payments and copy to EEOC|
|12/20/00||Case 2||CCC/DDD||Copy to EEOC|
|12/27/00||Case 4||GGG/BBB||Copy to EEOC||¶5(c) send EEOC the registry of persons attending training.|
|12/29/00||Case 6||JJJ/HHH||Copy of check to EEOC|
|01/12/01||Case 2||CCC/BBB||3rd Year Training|
|01/15/01||Case 2||CCC/BBB||28th Payment|
|01/20/01||Case 2||CCC/BBB||Copy to EEOC|
|02/15/01||Case 2||CCC/BBB||29th Payment|
|02/20/01||Case 2||CCC/BBB||Copy to EEOC|
|02/27/01 CD Expires||Case 7||JJJ/HHH||6th Report - Consent Decree Expires|
|03/02/01 CD Expires||Case 8||AAA/HHH||Consent Decree Expires|
|03/15/01||Case 2||CCC/BBB||30th Payment|
|03/20/01||Case 2||CCC/BBB||Copy to EEOC|
|04/15/01||Case 2||CCC/BBB||31st Payment|
|04/15/01||Case 9||AAA/HHH||Copy of Posted Policy|
|04/20/01||Case 2||CCC/BBB||Copy to EEOC|
|05/03/01 CD Expires||Case 10||CCC/BBB||only notice required to be posted no reporting|
|05/15/01||Case 2||CCC/BBB||32nd Payment|
|05/20/01||Case 2||CCC/BBB||Copy to EEOC|
|06/15/01||Case 2||CCC/BBB||33rd Payment|
|06/20/01 Extended due to noncompliance 12-08-00||Case 2||CCC/BBB||Copy to EEOC|
|07/15/01||Case 2||CCC/BBB||34th Payment|
|07/20/01||Case 2||CCC/BBB||Copy to EEOC|
|08/15/01||Case 2||CCC/BBB||35th Payment|
|08/20/01||Case 2||CCC/BBB||Copy to EEOC|
|09/15/01||Case 2||CCC/BBB||36th Payment|
|09/20/01||Case 2||CCC/BBB||Copy to EEOC|
|10/22/01||Case 2||CCC/BBB||6th Report|
|01/12/01 approximate||Case 2||CCC/BBB||4th Year Training|
|04/22/02||Case 2||CCC/BBB||7th Report|
|10/22/02 CD Expires||Case 2||CCC/BBB||8th Report - Consent Decree Expires|
|11-28-03||Case 5||III/BBB||CD Expires|