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E. Monitoring and Enforcing Consent Decrees

Contents

  1. Monitoring Consent Decrees
    1. Compliance Log for Each Case in Monitoring
    2. Compliance File for Each Case in Monitoring
    3. Noncompliance Report
    4. Legal Unit Monitoring Log
  2. Enforcing Consent Decrees
    1. Establish Noncompliance
    2. Consider Alternatives to Court Enforcement
    3. Provide Notice to Defendant
    4. File for Enforcement

Appendix 1: Compliance Log
Appendix 2: Sample Compliance Log
Appendix 3: Legal Unit Consent Decree Monitoring Log
Appendix 4: Sample Legal Unit Consent Decree Monitoring Log


E. Monitoring and Enforcing Consent Decrees

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.)

1. Monitoring Consent Decrees

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.

a. Compliance Log for Each Case in Monitoring

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:

  1. (1) the case name and docket number,
  2. (2) the names of the assigned Commission attorney and paralegal,
  3. (3) the name, phone number, and e-mail address of defendant's attorney,
  4. (4) the name, phone number, and e-mail address of defendant's contact person,
  5. (5) the effective date of the consent decree,
  6. (6) the date on which the consent decree expires,
  7. (7) the specific actions or events required of defendant under the consent decree,
  8. (8) a reference to the paragraph in the consent decree requiring each action,
  9. (9) the date by which each required action must be completed,
  10. (10) the date when defendant took the required action (e.g., mailed backpay checks, submitted a report to the Commission, posted a notice, or held a training session), and
  11. (11) notes or comments.

(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 :

  1. (1) have an internal monitoring procedure or mechanism,
  2. (2) have a specific expiration date,
  3. (3) have periodic reporting times with sanctions for noncompliance,
  4. (4) require the settlement fund to be placed in an interest-bearing account.
  5. (5) provide how and to whom accrued interest is to be paid,
  6. (6) determine what happens with money left after all efforts to distribute the funds have been exhausted,
  7. (7) establish timeframes for identification of claimants and distribution of funds,
  8. (8) establish who pays for costs associated with administration of the consent decree,
  9. (9) contain a dispute resolution procedure (but see section IV.A.2.(g) of this Part of the Manual), and
  10. (10) have an internal enforcement procedure or mechanism.

b. Compliance File for Each Case in Monitoring

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:

  1. (1) the consent decree.
  2. (2) the order entering the decree.
  3. (3) any memoranda to the court in support of entry of the decree, if separate, and any other pertinent court documents.
  4. (4) a compliance monitoring log (see above and appendix 1).
  5. (5) the justification memorandum for the consent decree.
  6. (6) an example of the format in which defendant is to submit its reports (for example, affidavits, letters of compliance, or charts).
  7. (7) reports and all other settlement-related correspondence or communications from the defendant, filed chronologically or by subject. Where defendant is required to provide monetary relief, the file should contain the payment schedule as well as records documenting each payment (for example, copies of canceled checks). Where defendant is required to provide injunctive or other affirmative relief, the file should contain records substantiating compliance with the injunctive provisions (for example, the sign-in sheets showing attendance at a required training session, proof of adoption and dissemination of new policies, etc.)
  8. (8) settlement-related correspondence and other communications received from claimants, and their counsel, if any.
  9. (9) EEOC correspondence to the defendant (for example, acknowledging defendant's reports) or to claimants and their counsel.
  10. (10) all documents relating to enforcement, if any.

c. Noncompliance Report

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.

d. Legal Unit Monitoring Log

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.)

2. Enforcing Consent Decrees

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.

a. Establish Noncompliance

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.

b. Consider Alternatives to Court Enforcement

Before initiating enforcement proceedings, EEOC should also consider alternatives to court enforcement:

  1. (1) The consent decree may contain a dispute resolution procedure. Where applicable that procedure should, of course, be used first.
  2. (2) EEOC should also attempt to negotiate with defendant to resolve questions of noncompliance, as long as this can be done without violating the principles of the resolution.
  3. (3) The parties may want to use the services of a mediator or other neutral third party.

c. Provide Notice to Defendant

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.

d. File for Enforcement

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:

  • payment of a penalty of $750,200 ($100 for each of 22 stores per day of noncompliance) payable to an advocacy organization for people with disabilities, which had represented the charging parties;
  • payment to EEOC and the advocacy organization of attorney's fees and costs in gaining full compliance with the decree;
  • preparing and airing advertisements on television stating that Wal-Mart had violated the ADA;
  • development of computer-based learning modules in ASL and compensation of an expert to evaluate the accuracy and accessibility of the ASL translation;
  • payment of a $150 per store penalty for every day of future noncompliance; and
  • extending the consent decree by 18 months.

Appendix 1
Compliance Log

[Case Name]
[Case Number]
Consent Decree

EEOC Atty: [Name and telephone number] Filed/Entered: [Date]
Defendant's Atty: [Name, phone no., fax no., and e-mail] Expires: [Date]
Requirements Compliance

[or §]
Provision Due
Date
Date
Rec’d
Comments
         
         
         
         
         
         
         
         
         
         
         
         

Appendix 2
Sample Compliance Log
EEOC v. _____________
Civ. No. ____________
Consent Decree

EEOC Atty:_______________________________________ Filed: November 28, 2000
Defendant's Atty:________________________________ Expires: November 28, 2003
Requirements Compliance
Provision Due Date Date Rec’d Comments
1 Resolves all claims.      
  INJUNCTION      
2 Permanently enjoined for duration of Decree from (a) sexually harassing employee and (b) retaliating against employee.      
  MONETARY RELIEF
$132,500 - Total Relief
     
3 First Payment:
$54,375 - (Name 1)
$11,875 - (Name 2)
12-01-00 12-01-00 paid
3 Second Payment:
$54,375 - (Name 1)
$11,875 - (Name 2)
01-16-01    
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    
  OTHER RELIEF      
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.      

Appendix 3
Legal Unit Consent Decree Monitoring Log as of [Date]

Due Date Case Name Atty/Para Requirement or Action Resolution
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         

Appendix 4
Sample Legal Unit Consent Decree Monitoring Log as of [Date]

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