IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
SMITH’S FOOD & DRUG CENTERS, INC., d/b/a PRICE RITE
Defendant.

)

)

)

)

CIV

)

)

)

COMPLAINT

)

)

JURY TRIAL DEMAND

)

)

)

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 to correct unlawful employment practices on the basis of sex, and to provide appropriate relief to

Joann Sandoval who was adversely affected by such practices. The Commission alleges that Joann

Sandoval was subjected to unwanted sexual comments and innuendo and inappropriate touching by a

manager of Defendant. The Commission also alleges that Ms. Sandoval complained of the harassment but

Defendant failed to take prompt and appropriate corrective action.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343

and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 (f)(1) and(3) ("Title VII") and Section 102

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

2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of New Mexico.
PARTIES 3. Plaintiff, the EqualEmployment OpportunityCommission(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(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant (the “Employer”) has continuously been an Ohio corporation doing business in the State of New Mexico, including at least the city of Albuquerque, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been and is now an employer engaged in an industry affecting commerce within the meaning of Section 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institutionof this lawsuit, Joann Sandoval filed a charge with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least January 2003, Defendant Employer has engaged in unlawful employment practices at its Albuquerque, New Mexico Price Rite facility, in violation of Section 703(a) of Title VII, 42 U.S.C. §§ 2000e-2(a). These practices include the harassment of Joann Sandoval because of her sex
2

and the failure to take prompt and appropriate remedial action to correct the hostile work environment Ms. Sandoval experienced.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Joann Sandoval of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex, female.
9. The unlawful employment practices complained of in paragraph 7 above were intentional. 10. The unlawful employment practices complained of in paragraph 7 above were done with malice and/or with reckless indifference to the federally protected rights of Joann Sandoval.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in harassment of employees because of sex and any other employment practice which discriminates on the basis of sex. B. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Joann Sandoval by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above, including future medical expenses, and other pecuniary losses, in amounts to be determined at trial.
3

D. Order Defendant Employer to make whole Joann Sandoval by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including but not limited to, emotional pain, suffering, inconvenience, mental anguish, humiliation, loss of enjoyment of life, and other nonpecuniary losses, in amounts to be determined at trial.
E. Order Defendant Employer to pay Joann Sandoval punitive damages for its malicious and/or reckless conduct described in paragraph 7 above, in amounts to be determined at trial.
F. Grant such further relief as the Court deems necessary and proper in the public interest. G. Award the Commission its costs in this action.
JURY TRIAL DEMANDED The Commission requests a jury trial on all questions of fact raised by its complaint. DATED this 30 th day of September 2004.
Respectfully submitted, ERIC S. DREIBAND General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, D.C. 20507
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MARY JO O’NEILL Regional Attorney C. EMANUEL SMITH Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION Phoenix District Office 3300 North Central Avenue Suite 690 Phoenix, Arizona 85012
Filed Electronically LORETTA MEDINA Senior Trial Attorney VERONICA A. MOLINA Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION Albuquerque Area Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5230 Attorneys for Plaintiff
5

 </s> IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

vs.

No. CIV 04-1117 RB/LFG

SMITH’S FOOD AND DRUG CENTERS, INC. d/b/a PRICERITE,

Defendant.

Consolidated with:

JOANN C. SANDOVAL and JESUS SANDOVAL, Husband and Wife,

Plaintiffs,

vs.

No. CIV 04-1417 RB/LFG

PRICERITE and JOSE MENDOZA,

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER came before the Court on the Plaintiffs Jesus and Joann Sandoval’s Motion

for Remand (Doc. 11), filed on January 20, 2005, and Defendant Pricerite’s Motion for Leave to File

Surreply (Doc. 28), filed on March 9, 2005. Pricerite has requested oral argument on the motion

to remand. Having reviewed the submissions of the parties and the relevant law, the Court finds that

oral argument is unnecessary, the motion to file surreply should be granted, and the motion to remand

should be granted in part and denied in part.

I. Background. On November 30, 2004, the Sandovals filed a Notice of Appeal and Complaint for Damages
in the Second Judicial District, County of Bernalillo, State of New Mexico, alleging that they were hired by Pricerite in 1997, and that Joann Sandoval was subjected to sexual harassment by her supervisor, Defendant Jose Mendoza. (Compl. ¶¶ 7- 8.) Joann Sandoval reported the harassment to a senior supervisor, but Pricerite failed to take remedial action and, due to this omission, Mendoza continued to harass her. (Compl. ¶ 9.) Pricerite’s failure to take remedial action constituted a breach of employment contract that forced the Sandovals to resign. (Compl. ¶¶ 21-23.)
Joann Sandoval filed a complaint with the New Mexico Human Rights Division and received a notice of right to file an appeal on November 9, 2004. (Compl. ¶ 8.) The Sandovals’complaint is brought pursuant to the New Mexico Human Rights Act, NMSA 1978, §28-1-7 (“NMHRA”). (Compl. ¶ 1.) In Count 1, Joann Sandoval asserts sexual harassment against both defendants. (Compl. ¶¶ 7-10.) In Count 2, Joann Sandoval alleges assault and battery against Mendoza. (Compl. ¶¶ 11-14.) In Count 3, the Sandovals allege intentional infliction of emotional distress against both defendants. (Compl. ¶¶ 15-18.) In Count 4, Joann Sandoval alleges defamation against Mendoza. (Compl. ¶¶ 19-20.) In Count 5, the Sandovals assert “constructive discharge and/or breach of employment contract” against Pricerite. (Compl. ¶¶ 21-23.)
On December 22, 2004, Pricerite removed the case to this court pursuant to 28 U.S.C. §§1441(b) and 1446(a). Pricerite asserts that the Sandovals’employment was subject to a collective bargaining agreement (“CBA”), the state law causes of action against Pricerite are completely preempted by §301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §185, and that this court should exercise supplemental jurisdiction over the claims against Mendoza pursuant to 28
2

U.S.C. §1967. After removal, the case was consolidated with the Equal Employment Opportunity Commission’s (“”EEOC”) complaint on behalf of Joann Sandoval against Pricerite. In their motion to remand, the Sandovals argue that the case should be remanded for lack of federal subject matter jurisdiction as to their complaint.1 Pricerite submitted its proposed surreply as an exhibit to its motion to file surreply. The surreply has been considered, but the arguments contained therein are unpersuasive.
II. Standard. Federal removal jurisdiction is statutory in nature and must be strictly construed. Shamrock
Oil & Gas v. Sheets, 313 U. S. 100, 108 (1941). Doubts must be resolved in favor of remand. Laughlin v. K-Mart Corp., 50 F.3d 871, 873 (10th Cir. 1995). A removing party has the burden of demonstrating the existence of federal jurisdiction by a preponderance of the evidence. Karnes v. Boeing Co., 335 F.3d 1189, 1195 (10th Cir. 2003). When a party challenges the underlying facts of the alleged subject matter jurisdiction, the court may consider evidence outside of the complaint to determine whether subject matter jurisdiction exists. Sizova v. Nat. Institute of Standards & Technology, 282 F.3d 1320, 1324 (10th Cir. 2002).
III. Analysis. Congress has granted the federal courts removal jurisdiction to hear claims initially brought
in state court if the federal district court could have exercised original jurisdiction. See 28 U.S.C. §
1The motion to remand and this Memorandum Opinion and Order do not address the complaint filed by the EEOC.
3

1441(a). Although the complaint raises only state law claims, Pricerite asserts federal question jurisdiction under the complete preemption doctrine. See 28 U.S.C. § 1331; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Under the complete preemption doctrine, federal courts may exercise federal question jurisdiction over complaints that present state law claims that are preempted by federal law. Williams, 482 U.S. at 393. Pricerite contends that the claims against Pricerite are completely preempted by § 301 of the LMRA.
Section 301 provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U. S. C. § 185(a). The Supreme Court has made clear that the preemptive effect of § 301 is not limited to state
claims alleging violations of labor contracts, but can include tort claims relating to what the parties to a labor agreement agreed and any legal consequences that were intended to flow from a breach of that agreement. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985). A state law claim is preempted by § 301 when its resolution depends upon the meaning of the CBA, Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988), or when resolution of the state law claim is “inextricably intertwined” with the terms of the CBA. Allis-Chalmers, 471 U.S. at 213; Garley v. Sandia Corp., 236 F.3d 1200, 1210 (10th Cir. 2001). Section § 301 does not preempt nonnegotiable rights conferred on individual employees as a matter of state law. Lividas v. Bradshaw, 512 U.S. 107, 123 (1994).
4

In Count 1, Joann Sandoval alleges that she was sexually harassed by her supervisor in violation of the NMHRA. If Ms. Sandoval is able to meet all the elements necessary to sustain a claim for sexual harassment, she would prevail under New Mexico law irrespective of the terms of the CBA. See Lingle, 486 U.S. at 412; Milton v. Scrivner, Inc., 53 F.3d 1118, 1121 (10th Cir. 1995). The fact that the CBA covered sexual harassment does not negate or alter Ms. Sandoval’s rights that arise under state law. See Karnes, 335 F.3d at 1194 (holding that a claim brought for violation of Oklahoma’s Drug Testing Act was independent of a CBA that covered employee drug testing). Count 1 is not preempted by §301.
Joann Sandoval asserts assault and battery and defamation claims against Mendoza, alleging that Mendoza touched her during the sexual harassment and told others that he had been having sexual intercourse with her. Where the employer goes beyond the bounds of the work relationship, any torts that arise out of such behavior are not preempted because reference to the CBA is not required to determine whether the employers behavior is wrongful or not. Albertsons, Inc. v. Carrigan, 982 F.2d 1478, 1482 (10th Cir. 1993) (holding that there is no need to refer to the CBA when the outrageous conduct involved the employer having the employee arrested by fabricating theft). Resolution of these claims does not hinge on the meaning of the CBA. Because Counts 2 and 4 are independent of the CBA, they are not preempted by §301.
The Sandovals allege intentional infliction of emotional distress against both defendants. To the extent this claim is based upon Mendoza’s alleged misconduct, the claim is not preempted because it will not depend on the meaning of the CBA. See Garley, 236 F.3d at 1214. To the extent this claim is based on the conduct of Pricerite in failing to discipline Mendoza, however, resolution will require interpretation of the CBA. Thus, the portion of Count 3 asserted against Pricerite is
5

preempted by §301. In Count 5, the Sandovals allege constructive discharge and breach of employment contract
against Pricerite. The CBA represents the contract between the Sandovals and Pricerite. Steinbach v. Dillon Companies, Inc., 253 F.3d 538, 540 (10th Cir. 2001) (noting that CBA is intended to forge an exclusive contract controlling all aspects of the employer-employee relationship). A determination of whether Pricerite breached its contract and constructively discharged the Sandovals will inevitably require consideration of the CBA. See Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 530 (10th Cir. 1992) (holding that an employer conducting an internal investigation suspecting theft by the employee will inevitably require an analysis of what the CBA permitted). Because the Sandovals’ contract claims depend on the meaning of the CBA, they are preempted by § 301. Dismissal without prejudice is the appropriate disposition for preempted claims where the complaint does not properly plead any claims under the LMRA. See Allis-Chalmers Corp., 471 U.S. at 220-221; Garley, 236 F.3d at 1215.
The Court has supplemental jurisdiction over the remaining state law claims because they are so related to the federal claims that they form part of the same case or controversy. See 28 U.S.C. § 1367; United Mine Workers v. Gibbs, 383 U.S. 715 (1966). However, the Court may decline to exercise supplemental jurisdiction where it has dismissed all claims over which it had original jurisdiction. 28 U.S.C. § 1367(c) "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988); see also United States v. Botefuhr, 309 F.3d 1263, 1273 (10th Cir. 2002).
The preempted federal claims have been dismissed at an early stage of the litigation. The
6

remaining claims arise under state law. The Court finds that the interests of judicial economy, convenience, fairness, and comity weigh against the exercise of supplemental jurisdiction. Accordingly, the Court will remand the remaining claims. WHEREFORE,
IT IS ORDERED that Defendant Pricerite’s request for oral argument is DENIED. IT IS FURTHER ORDERED that Defendant Pricerite’s Motion for Leave to File Surreply (Doc. 28), filed on March 9, 2005, is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Jesus and Joann Sandoval’s Motion for Remand (Doc. 11), filed on January 20, 2005, is GRANTED. IT IS FURTHER ORDERED that Count 5 and the portion of Count 3 alleged against Defendant Pricerite are DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the remaining claims brought in Case No. 04-1417 RB/LFH are REMANDED TO THE SECOND JUDICIAL DISTRICT COURT, COUNTY OF BERNALILLO, STATE OF NEW MEXICO.
________________________________________ ROBERT C. BRACK UNITED STATES DISTRICT JUDGE
7

 </s> "

L"I THE UNITED STATES DlSTIUCT COliRT FOR THE DISTRICT OF NEW MEXICO
EQUAL EMPLOYMENT OI)PORTUNITY COMMISSIOr-.;,

~ ""'~ .
.'
'- "

.

:

'\,..""--

. ' - L:"·-' -'

Plaintiff,

v.

CIV ~O. 04-01117 RO/LFG

SMITH'S FOOl) & DRUG CENTERS, INC. d/bla Price Rite,

Defendant.

Consolidated witb:

JOANN C. SANDOVAL and JESliS SA~DOVAL, Husband and Wife,

Plaintiffs,

VS.

No. CIV 04-1417 .IH/WOS

PRICERITE and JOSE MENDOZA,

J)efendants.

CONSENT DECREE

The United States Equal Employment Opportunity Commission r'the Commission" or

"EI'OC') tiled this action against Smith's Food & Drug Centers. Inc. d/h/a Priccrite to enforce

Title VII of the Civil Rights Act of 1964, 42 U.S.c. §2000e el self. (ritlc Vll) and the Civil

Rights Act of 1991, 42 1l.S.C. §1981 a. In the Commission's C\lmplaint, the Commission alleges

Defendant subjected Joann Sandoval to a hostile work environment hecause of her sex. female.

Specitically. EEOC allcged that Sandoval was subjected to unwanted sexual comments,

innuendo and inappropriate touching by a manager of Defendant and that Dd"endant failed to

take prompt corrective adion. Plaintiffs in the consolidated action. Joann Sandoval and Jesus

Sandoval ("'Sandoval Plaintiffs"). assert those same allegations under the l\:ew Mexico Human

Rights Act along with certain state law claims arising out of the same operative facts.

Defendant denies all allegations of PlaintifT and the Sandoval PlaintilTs. and specifically

denies that it discriminated against any individual on the basis of gender or any other unlawful

practice under Title VII or the causes of action set forth in the complaint of the Sandoval

Plainti fTs.

This Consent Dccree does not constitute and shall not be construed as an admission by

Defendant ofliability or any violation of any law or legal standard. Nor docs it constitute an

adjudication on the merits of the allegations in the Complaint or complaint ofthc Sandoval

Plaintiffs. The partics do not object to the jurisdiction of the Court over this action and waive their

rights to a jury trial.

IT IS HEREBY ORDEREI>, ADJUI>GED AND DECREED:

1.

This Dccree rcsolves all claims asserted by the Commission on behalf of Joann

Sandoval and all claims asserted by Sandoval PlaintifTs. or which could have been asserted by

Sandoval Plaintifls. in this action. The claims resolved include. without limitation. claims ttlr

discrimination. harassmcnt. retaliation. wTOngful discharge. breach of contract. assault. defamation.

intentional intliction of emotional distress. back and front pay. compensatory damages, punitivc

damages, interest. declaratory relief. injunctive relief. attorneys fees. and costs arising Irom or

rclated to this lawsuit and its underlying and related charges.

INJUNCTION

2. The Defendant. its officers. agents. employees. successors. assigns and all

persons 111 active concert or participation with it. with respect to Defendant's business

operations in the State of New Mexico. arc permanently enjoined for the duration of the

5fJ610;\"1

decree from discriminating against any employee hased on his or hcr sex or gender. This injunction will remain in effect for the duration of tht: deere.: at any facility operated by the Defendant in New Mexico and any of its successors.
MONETARY RELIEF TO CHARGING PARTY ,JOANl" SANDOVAL 3. Within ten (10) days after this Consent Decree is entered by the Court. Defendant shall deliver to Joann Sandoval a business check made payable to Joann Sandoval and her attorney. Narciso Garcia, in the amount of $75.000.00 li)r alleged compensatory damages. Within live days of issuance of the check, the DetCndant shall suhmit a copy of the check and related correspondence to the Regional Attorney. I:qual Employment Opportunity Commission. Albuquerque Area Office. 505 Marquette NW, Suite qOO. Albuquerque, New Mexico 87102. 4. The Defendant shall expunge from the personnel lile of Joann Sandoval all n:ferences to the charge of discrimination filed against Defendant. 5. In response to any employment inquiries or rderence check concerning Joann Sandoval, the Defendant shall provide a neutral retc-renc.:. including .\1~. Sandoval's dates of employment, position held, joh duties and rate of pay. It is understood. how<!ver, that for this provision to apply. Ms. Sandoval must identify Jenny l.ee or her successor (Personnel Din:etor. Smith's Food & Drug Centers. Inc .. 200 Tramway Blvd. SE, Albuque:rque. NM 97123 (505) 271-4003), as the contacl person for Defendant on any applications for employment. 6. The Defendant shall not take any retaliatory action against Joann Sandoval. Jesus Sandoval or any witnesses in this ease lilT filing a charge: of employment discrimination or for participating, assisting or testifying in this action.

5fi6105\"I

3

DEFENDANT'S CORRECTIVE POLICIES AND PRACTICES 7. Defendant reaffirms that it shall maintain and carry out plllicies and practices that promote a work environment free from sex or gender discrimination. To assist Defendant in their effort to provide a work environment free of sex discrimination. sexual harassment and retaliation. Defendant shall take the actions provided tor in the Paragraphs 8. 9 and II below. 8. Within sixty (60) days of the entry of this decree. defendant shall review its existing polices on sex discrimination. sexual harassment and retaliation and make any changes necessary to assure that its policies and procedures comply with Title VII and do not contain any provisions that would discourage employees from making complaints. The policy and procedure statements of Defendant should be designed to present easily understood. convenient. consistent. conlidential and reliable procedures for reporting incidents of sex discrimination. sexual harassment and retaliation in Defendant's New Mexico facilities. Within one-hundred-twcnty (120) days of the entry of this decree any revised policies or procedurl!s on sex discrimination. sl!xual harassment and retaliation shall be distributed to Defendant's New Mexico Smith's and Price Rite employees. Defendant will assure that any revised policies and procedures. at a minimum. shall include provisions incorporating the following: A. The designation of a specific Investigative Otlicer(s) j(lr purposes of investigating sexual harassment daims by Defendant's New Mexico employees: J3. Within onc-hundred-twenty (120) days of the entry of this decree and for the duration of this decree. the name. responsibilities. work location. and telephone numher of the Investigative Officer will routinely and continuously he posted and

56h) (15 ... I

4

provided to all employees 50 that an employee se.:king 5u<:h name! can enJoy anonymity and remain inconspicuous to other employees: C. For the duration of this decree. complaints of sexual harassment or retaliation will bc accepted in writing. orally. or anonymously and all complaints will he taken seriously and investigated: D. Only those with an immediate need to know. including the Investigative Officer. the alleged target of harassment or retaliation. the alleged harasser (s) or n:taliator(s) and any witnesses. may find out the identity of the complainant: E. During an investigation of a sexual harassment complaint or retaliation complaint of an employee. the Investigative Ofticer shall endeavor to immediately interview all affected employees and potential witnesses to the alleged harassment: F. During an investigation of a sexual harassment complaint of an employee. the Investigative Officer will not assume that the la<:k of witnesses is determinative of the complaint and the Investigative Officer will endeavor to resolve all <:omplaints of harassment: G. All parties contacted in the course of an investigation will he advised that any retaliation or reprisal against an individual who is an alleged targd of harassment or retaliation. who has made a complaint. or who has provided evidence in connection with a complaint will not he tolerated and could result in disciplinary action: H. Each Investigative Officer will receive thorough and appropriate training ahout sexual harassment and will have the responsibility for expeditiously investigating all complaints. This training shall consist of at least two hours in addition to that

~h6105\'1

5

provided under Paragraph 9 D of this Decree: I. The Investigative Officer will maintain a file on thl' original l'Omplaint(s) and any follow-up investigation: and J. Defendant's managers. officials, agents or .::rnployees who engage in sexual harassment or retaliation: who fail to forward complaints of harassment timely to the Investigative Ofticer; who fail to cooperate with company-sponsored investigations or sexual harassment or retaliation: or who refuse to implement remedial measures will be advised that they may be sanctioned scverely by loss of income. suspension or dismissal.
TRAINING AND COliNSELING 9. The Defendant shall provide training on employment discrimination. including sexual harassment and retaliation. according to thl.! following terms: A. The Defendant shall provide and pay for a trainer who shall provid.::
consultation and training for one seminar-training session each year this decr.:e is in effect ror a total of two years. /\11 orIkfendant's Pric.: Rite and Smith's salaried management employc.::s in New \1exico shall attend the seminar-training sessions .:ach year. In addition, Defendant shall assure that each employee of Price Rite in New \1exico at th.:: time the first such seminar session takes place attends one of th.: training sessions at least on.: time in the two year duration of this Decree. Du pi icate sessions may be held by videotape to accommodate staffing needs. The Defendant shall be responsible for any additional costs to provide such duplicative scssions.

56h105\" I

6

B. The first seminar-training session shall bl! conducted within three months of the entry of this decree.
C. The trainer shall be a person(s) acceptable to the Commission. but. for at least one of the training sessions. may be a qualified employee rrom Dclendanfs human resources or legal department. The Defendant shall submit the name(s). address(es). telephone number(s). and resume(s) of the proposed trainer(s) together with the dates of the proposed seminar-training sessions and the details of the contents of the training to the Regional Attorney of the Albuquerque Area Otlice of the Equal Employment Opportunity Commission within thirty days of the entry of this decree. The Commission shall have thirty days !i'om the date of receipt of the information described above to accept or reject the proposed trainer and/or the contents of the training. In the event the Commission does not approve the designatl!d trainer. the Commission shall designate the trainer. who shall be paid by the Delendant at a cost not to exceed $1000.00 per seminar-training session.
D. The seminar-training sessions shall be no less than one hour of instruction. All employees designated in Paragraph A shall both register and attend the seminar-training session(s) as required in Paragraph A. The registry(s) of attendance shall be retained by the Delendant fllr the duration of the decree.
E. The training shall include the suhject of what constitutes employment discrimination. including sexual harassment and rclaliation: that sexual harassment violates Title VII; how to prevent sexual harassment and retaliation: how to provide a work environment free from sexual harassment
7

and retaliation: and to whom and by what means employees may complain if they fed they have heen subjected to sexual harassment and retaliation in the workplace. F. Within ten (10) days of their hire, Defendant's n"w Smith's or Price Rite salaried management employees in New Mexico shall allend any seminartraining sessions required hy this decree: such employees hired after the seminar-training sessions are presented shall view a video tape of the training and/or a professional training tape which covers the topics sct lorth in 8.E. and shall be given any wrillen material disseminated at the seminartraining sessions for the duration of this decree. 10. The Commission. at its discretion. may designate Commission representatives to allend and participate in the seminar-training sessions described ahove, and the representatives shall have the right to attend and fully participal<: in the sessions. 11. Defendant shall post within thirty (30) days of thl' entry of this Consent Decree, and continuously for a period of 24 months, in prominent places frequented by employees of Defendant's Smith's and Price Rite New Mexico facilities, the Notice attached to this Decree as Exhibit A. This Notice shall he the same type. style and size as in Exhibit A. At each training session for Managers held pursuant to this Decree this Notice shall he distributed to attendees. REPORTING BY DEFENDANT ANn ACCESS BY EEOC 12. The Defendant shall report in writing and in affidavit lorm to the Regional Attorney of the Commission's Albuquerque Area Oflice at 505 \1arquelle NW, Suite 900, Albuquerque, New Mexico 87102, beginning six months Irom the date of the entry of

5661U5\"1

8

this deer.:e. and thereaner every six months for the duration of Ihe de,n:e the following information:
A. Any changes. modifications. revocations. or revisions to its policies and procedures that concern or affect the subject of employment discrimination. including gender discrimination.
B. The registries of Pricerite salaried managemenl employees attending each of the seminar-training sessions required in paragraph 8 of this decree and a list of current Pricerite salaried management employees on the day of the seminar-training session.
13. The Commission shall have the right to enter and inspect the Defendant's Prieerite facilities to ensure compliance with this deerel' and federal anti-discrimination laws.
COSTS AND DURATION 14. Each party shall bear ils costs and attom.:y·s f.:.:s incurred as a result of this action through the filing of this deere.:. 15. The duration of this decree shall be two (2) years from its entry. This Court shall retain jurisdiction of Ihis action for the duration of the decree. during whi,h the Commission may p.:tition this Court for compliance with this decree. Should the Court determine that Defendant have not complied wilh Ihis decree. appropriate rdiet: including extension of this decree fi')r such period as may be necessary to remedy its non-compliance. may be ordered. 16. This decree shall expire by its own ternlS at the end of two (2) years ancr enlry. without further action by the parties. 17. The parties agree to entry of this decree and judgment suhject 10 final approval by the Court.
9

/ 3 ENTERED AliD ORDERED THIS

day of ~,_._ _ _ _ , 2005

~~--

U. S. DISTRICT JUDGE

/ ! APPROVED AND CONSENTED TO THIS

DAY OF MAY. 2005.

ERIC S. DRElBAND General Counsel
EQUAL EMPLOYMDIT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, D.C. 20507
()1~ 'To. 0'lIM_J-~
MARY O'NEILL ·ttt(iJ
Regional Attorney
C.~1.~_-
C EMANUEL SMITH Supervisory Trial Attorney
EQUAL EMPU)'YMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 (602) 640-5020
~I\Jkx~M~c oretta Medma Senior Trial Attorney EQUAL EMPLOYMENT OPPORTCNITY COMMISSION 505 Marquette. NW, Suite 900 Albuquerque, New Mexico 87102 (505 248-5231

5(,6\05,,\

10

GARCIA LA W FIRM
Approved bv e-mail 5/6/05 Narciso Garcia. Jr. 2033 San Mateo. NE Albuquerque, NM 87110-5147 (505) 265-5010 Attorneys for Plaintiffs in Consolidation
RODEY, DICKASON. SLOAK AKIN & ROI3B. P.A.

c

--.,.~

.. ~

Thomas L Stahl

'-----

Post Otlice Box 1888

Albuquerque. N\1 87103

(505) 765-5900

Attorneys for Ddendant

566105vl

II

NOTICE TO ALL EMPLOYEES 01' SMITH'S FOOD & DRUG CENTERS, INC., AND PRICE RITE

This ~otice is posted pursuant to a Consent Decree entered into between Smith's Food & Drug Centers. Inc .. and the Equal Employment Opportunity Commission (EEOC).

It is unlawful under the federal law (Title VII of the Civil Rights Act or 19(4) and state law to discriminate against an employee on the basis of sex in hiring. firing. compensation or other terms, and conditions or privileges of employment. including sexual harassment.

Smith's Food & Drug Centers. Inc.. prohibits all forms of sex discrimination. induding sexual harassment. Prohibited sexual harassment includes. but is not limited to. the following conduct:

I.

unwelcome touching of a sexual nature:

H. unwelcome comments. including comments regarding intimate hody parts.

or clothing and discussion of sexual jokes or sexual behavior:

HI. unwelcome requests for dates. sexual favors and propositions:

IV. unwelcome distribution in the workplace of cartoons. pictures or drawings

of a sexual nature: and

v. unwelcome display of pornographic materials in the workplace.

Smith's Food & Drug Centers. Inc.. shall not discriminate on the basis ()f sex and shall not retaliate against any employee who opposes a practice made unlawful under federal law, tiles. assists or participates in the filing of a charge of discrimination or participates in any investigation under Title VII. or who files a grievance' alleging discrimination.

If you believe you are being sexually harassed, discriminated against or retaliated against you should report this to the Smith's Food & Drug Centers' designated investigative oflieer at your workplace who may be contacted at _ _ _ _ _ _ _ _ _ _ _ _ _-'

If you believe you have been discriminated against or rdaliated against by Smith's Food & Drug Centers. Inc.. you always have the right to seck assistance from:

1) Equal Employment Opportunity Commission (FI'0(').505 Marquette. Suite 900. Albuquerque. New Mexico 871 02. 1-800-669-4000. or
(2) The New Mexico Department of Labor. Human Rights Division. 1596 Pacheco SL Suite 103, Santa Fe. New Mexico 87505. 505) 827-6838.

You have the right to file a charge with the EEOC or the Departm.:nt of Labor if you believe you are being discriminated against.

EXHIBIT A

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REFER, TERMED
U.S. District Court District of New Mexico - Version 3.0 (Las Cruces) CIVIL DOCKET FOR CASE #: 2:04-cv-01117-RB-LFG

EEOC v. Smith's Food & Drug Assigned to: District Judge Robert Brack Referred to: Magistrate Judge Lorenzo F. Garcia Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/30/2004 Date Terminated: 05/20/2005 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 Washington, DC 20507 (202) 663-4669

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V. Defendant Smith's Food and Drug Centers, Inc. doing business as Price Rite
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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 Thomas L Stahl Rodey, Dickason, Sloan, Akin & Robb, P.A. Post Office Box 1888 Albuquerque, NM 87103 (505) 765-5900 Fax: (505) 768-7395 Email: tstahl@rodey.com LEAD ATTORNEY
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ATTORNEY TO BE NOTICED

Date Filed 09/30/2004 10/15/2004 11/18/2004 11/22/2004
12/16/2004 01/05/2005 01/05/2005 01/06/2005 01/12/2005
01/18/2005
01/18/2005
01/19/2005 01/20/2005 01/20/2005 01/20/2005 02/04/2005

#

Docket Text

1 COMPLAINT for civil rights (referred to Chief Magistrate Lorenzo F. Garcia) (emr) (Entered: 10/01/2004)
SUMMONS issued as to deft (bap) (Entered: 10/18/2004)
2 ANSWER by deft [1-1] (bap) (Entered: 11/19/2004)
3 INITIAL SCHEDULING ORDER by Chief Magistrate Judge Lorenzo F. Garcia Rule 16 scheduling conference is set for 1/6/05 @ 9:00 am; provisional discovery plan & IPTR due 1/3/05 (cc: all counsel*) (bap) (Entered: 11/22/2004)
4 PROVISIONAL DISCOVERY PLAN by parties (*) (bap) (Entered: 12/16/2004)
5 CERTIFICATE of Service by pltf of initial disclosures, hand delivered to counsel on 1/5/05 (*) (bap) (Entered: 01/05/2005)
6 CERTIFICATE of service of Rule 26 disclosure statement by deft to counsel on 1/5/05 (jrm) (Entered: 01/05/2005)
7 CLERK'S MINUTES: before Chief Magistrate Judge Lorenzo F. Garcia Rule 16 scheduling conference was held (*) (bap) (Entered: 01/06/2005)
8 CERTIFICATE of Service by deft of first set of interrogatories and first requests for production of documents, mailed to counsel on 1/12/05 (bap) (Entered: 01/12/2005)
9 ORDER by District Judge Robert Brack consolidating cases 2:04-cv-1117 with member cases 6:04-cv-1417; 04-1117 is lead case (cc: all counsel) (yc) (Entered: 01/18/2005)
10 ORDER by Chief Magistrate Judge Lorenzo F. Garcia setting on standard track , Discovery cutoff is 6/6/05; Motion Filing cutoff is 8/15/05; Pretrial order ddl is 10/14/05 (cc: all counsel) (bap) (Entered: 01/18/2005)
14 ORDER by District Judge Robert Brack consolidating cases (see document #9) (cc: all counsel) (yc) (Entered: 01/21/2005)
11 MOTION by pltfs Sandoval for remand to state court (bap) (Entered: 01/21/2005)
12 MEMORANDUM in support of motion for remand to state court [11-1] (bap) (Entered: 01/21/2005)
13 CERTIFICATE of Service by pltfs Sandoval of first set of interrogatories and request for production, mailed to counsel on 1/18/05 (bap) (Entered: 01/21/2005)
15 UNOPPOSED MOTION by deft to extend time to respond to pltfs' motion to remand until 2/11/05 (bap) (Entered: 02/07/2005)

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02/08/2005 02/08/2005
02/08/2005
02/10/2005 02/11/2005 03/02/2005 03/04/2005 03/04/2005 03/04/2005 03/04/2005 03/07/2005 03/08/2005 03/09/2005 03/16/2005 03/18/2005 03/25/2005

16 ORDER by Chief Magistrate Judge Lorenzo F. Garcia setting Rule 16 Settlement Conference for 5/2/05 @ 9:00 am in Albuquerque (cc: all counsel*) (bap) (Entered: 02/09/2005)
17 INITIAL PRE-TRIAL REPORT by District Judge Robert Brack and Chief Magistrate Lorenzo F. Garcia; Discovery set for 6/6/05; mtn filing ddl set for 8/15/05; proposed pretrial order due 10/14/05; pretrial conference set for 8:30 a.m. on 11/18/05; jury trial set for 9:00 1/23/06; Estimated # Trial Days: 5; Chances of Settlement: not known (cc: all counsel) (yc) (Entered: 02/09/2005)
18 NOTICE of hearing before District Judge Robert Brack; pretrial conference set on 11/18/05 @ 8:30 a.m.; final pretrial conference set on 12/16/05 @ 8:30 a.m.; jury trial set on 1/23/06 @ 9:00 a.m.; [17-1] (cc: all counsel) (yc) (Entered: 02/09/2005)
19 RESPONSE by deft Pricerite to pltf Sandoval's motion for remand to state court [11-1] (bap) (Entered: 02/11/2005)
20 ORDER by District Judge Robert Brack granting deft's unopposed motion to extend time to respond to pltfs' motion to remand until 2/11/05 [15-1] (cc: all counsel) (yc) (Entered: 02/14/2005)
21 UNOPPOSED MOTION by plaintiff to extend time to respond to mtn to remand until 3/4/05 (vv) (Entered: 03/02/2005)
22 REPLY by pltfs to deft's response to motion for remand to state court [11-1] (bap) (Entered: 03/07/2005)
23 NOTICE by pltfs Sandoval of completion of briefing on motion to remand [11-1] (bap) (Entered: 03/07/2005)
24 ORDER by District Judge Robert Brack granting pltf Sandoval's motion to extend time to respond to mtn to remand until 3/4/05 [21-1] (cc: all counsel) (yc) (Entered: 03/07/2005)
25 CERTIFICATE of Service by deft of answers to pltf's first set of interrogatories and responses to request for production, mailed to counsel on 3/4/05 (bap) (Entered: 03/07/2005)
26 CERTIFICATE of Service by pltf of answers and responses to deft Smith's and first set of interrogatories and first requests for production, mailed to counsel on 3/4/05 (bap) (Entered: 03/08/2005)
27 REQUEST by deft for oral argument (jrm) (Entered: 03/08/2005)
28 MOTION by deft for leave to file a surreply to pltf's motion to remand (bap) (Entered: 03/10/2005)
29 CERTIFICATE of service of supplemental Rule 26 disclosure statement by deft to counsel on 3/16/05 (jrm) (Entered: 03/17/2005)
30 CERTIFICATE of service of supplement to Rule 26 disclosures by pltf to counsel on 3/17/05 (jrm) (Entered: 03/21/2005)
31 RESPONSE by pltf to motion for leave to file a surreply to pltf's motion to remand [28-1] (jrm) (Entered: 03/25/2005)

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03/25/2005 03/28/2005
04/06/2005 04/07/2005 04/08/2005 04/13/2005 04/15/2005 04/19/2005 04/19/2005 04/25/2005 04/25/2005 04/26/2005 04/28/2005
04/29/2005 05/20/2005

32 CERTIFICATE of service of 2nd request for production by pltf to deft Pricerite on 3/23/05 (jrm) (Entered: 03/25/2005)
33 CERTIFICATE of Service by pltf of first set of interrogatories and first request for production of documents, hand-delivered to counsel on 3/28/05 (*) (bap) (Entered: 03/28/2005)
34 WITNESS list (expert) submitted by pltf (*) (bap) (Entered: 04/06/2005)
35 NOTICE by pltf Sandoval of identification of expert (bap) (Entered: 04/11/2005)
36 REPLY by deft in support of motion for leave to file a surreply to pltf's motion to remand [28-1] (bap) (Entered: 04/11/2005)
37 NOTICE by defendant of completion of briefing of mtn for leave to file surreply [28-1] (vv) (Entered: 04/13/2005)
38 CERTIFICATE of service by plaintiff of 3rd request for production to counsel on 4/14/05 (vv) (Entered: 04/15/2005)
39 STIPULATION by the parties re: discovery (*) (bap) (Entered: 04/19/2005)
40 CERTIFICATE of Service by deft of supplemental Rule 26 disclosures statement, mailed to counsel on 4/18/05 (bap) (Entered: 04/20/2005)
41 ORDER by Chief Magistrate Lorenzo F. Garcia granting parties' discovery stipulation [39-1] (cc: all counsel) (dmw) (Entered: 04/25/2005)
42 CERTIFICATE of service of responses to 2nd request for production by deft to counsel on 4/25/05 (jrm) (Entered: 04/26/2005)
43 NOTICE by Chief Magistrate Judge Lorenzo F. Garcia vacating Rule 16 Settlement Conference set for 5/2/05 (*) (bap) (Entered: 04/26/2005)
44 MEMORANDUM, OPINION, AND ORDER: by District Judge Robert Brack granting deft Pricerite's motion for leave to file a surreply to pltf's motion to remand [28-1], and granting pltfs' motion for remand to state court [11-1]; dismissing Count 5 and portion of Count 3 against deft Pricerite are dismissed w/out prejudice remanding case to state court (2:04-cv-01417) (cc: all counsel*) (bap) (Entered: 04/28/2005)
LETTER to the Second Judicial District Court w/the entire file & memorandum opinion & order (yc) (Entered: 04/29/2005)
45 CONSENT DECREE (judgment) by District Judge Robert Brack dismissing case (cc: all counsel) (yc) (Entered: 05/24/2005)

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 </s> DISC, REFER, REMAND, TERMED
U.S. District Court District of New Mexico − Version 3.2.1 (Las Cruces) CIVIL DOCKET FOR CASE #: 2:04−cv−01417−RB−LFG

Sandoval, et al v. Pricerite, et al Assigned to: District Judge Robert C. Brack Referred to: Magistrate Judge Lorenzo F. Garcia Demand: $0
Case in other court: 2nd Jud DC, 2:04−CV−07643
Cause: 28:1441 Petition for Removal− Labor/Mgmnt. Relations
Plaintiff

Date Filed: 12/22/2004 Date Terminated: 04/28/2005 Nature of Suit: 720 Labor: Labor/Mgt. Relations Jurisdiction: Federal Question

Joann C Sandoval

represented by Narciso Garcia, Jr. 2033 San Mateo NE Albuquerque, NM 87110 (505) 265−5010 Fax: (505) 265−1625 Email: narcisolaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jesus Sandoval Husband and Wife

represented by Narciso Garcia, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Pricerite
Defendant Jose Mendoza

represented by Thomas L Stahl Rodey, Dickason, Sloan, Akin &Robb, P.A. Post Office Box 1888 Albuquerque, NM 87103 (505) 765−5900 Fax: (505) 768−7395 Email: tstahl@rodey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Garth Gilchrist Bannerman &Williams, P.A. 2201 San Pedro NE Building 2, Suite 207 Albuquerque, NM 87110 505−837−1900 Fax: 505−837−1800 Email: wgg@nmcounsel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas L Stahl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Garth Gilchrist (See above for address)

Date Filed 12/22/2004
12/22/2004 01/03/2005 01/12/2005
01/18/2005 04/28/2005

LEAD ATTORNEY ATTORNEY TO BE NOTICED
# Docket Text
1 NOTICE OF REMOVAL from 2nd Judicial District Court w/state court complaint Case Number: 1:04:CV:7643 (referred to Magistrate Judge W. D. Schneider) (jmg) Modified on 12/22/2004 (Entered: 12/22/2004)
2 ANSWER by defendants [1−1] (jmg) (Entered: 12/22/2004)
3 NOTICE by deft Pricerite of related cases 04cv1117 (bap) Modified on 01/06/2005 (Entered: 01/04/2005)
4 CERTIFICATE of Service by defts of Pricerite's first set of requests for production of documents, mailed to counsel on 1/12/05 (bap) (Entered: 01/12/2005)
5 ORDER by District Judge Robert Brack consolidating cases 04−1417 w/04−1117 (cc: all counsel) (yc) (Entered: 01/18/2005)
6 MEMORANDUM, OPINION, AND ORDER: by District Judge Robert Brack that the remaining claims brought in 04cv1417 are remanded to Second Judicial District Court remanding case to state court (cc: all counsel) (bap) (Entered: 04/28/2005)


[CONTENT] September 2004 | the Albuquerque Area Office of the EEOC | the Phoenix District Office | the U.S. District Court | New Mexico | Smith | Food and Drug Centers, Inc. | PriceRite ||| EEOC | PriceRite | the Civil Rights Act | 1964 ||| PriceRite ||| November 2004 | New Mexico State Court | the New Mexico Human Rights Act ||| December 2004 | EEOC ||| January 2005 | April 2005 ||| May 2005 | two-year ||| PriceRite | annual | EEOC | Title VII | 75,000 ||| 2005 | last 2007 |||  [SUMMARY] In September 2004, the Albuquerque Area Office of the EEOC (with the participation from the Phoenix District Office) brought this suit in the U.S. District Court for the District of New Mexico against Smith's Food and Drug Centers, Inc., d/b/a PriceRite.  The EEOC's complaint alleged that PriceRite violated Title VII of the Civil Rights Act of 1964 by discriminating on the basis of sex.  In particular, the complaint alleged that a PriceRite manager made unwanted sexual comments to the charging party, a female employee, and that he inappropriately touched her creating a hostile work environment.  

In November 2004, the charging party and her husband filed a separate action in New Mexico State Court alleging violation of the New Mexico Human Rights Act.  In December 2004, this action was removed to federal court and consolidated with the EEOC's case.  In January 2005, the charging party and her husband filed a motion for remand which was granted in April 2005.  In May 2005, the parties settled all their claims through a two-year consent degree, containing both non-discrimination and non-retaliation clauses. 

The decree required PriceRite to: provide the charging party with a neutral reference, distribute their anti-discrimination policies to employees, designate a special investigations officer to investigate discrimination complaints, provide annual EEOC-approved Title VII managerial training, and pay the charging party a sum of $75,000.

The decree was entered in 2005 and scheduled to last 2007. No further docket entries exist, so the case is closed.