Free Response - District Court of Colorado - Colorado

Case 1:01-cv-01731-MSK-OES

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01731-MSK-OES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, AND LEIGH ANN ORNELAS, Plaintiff/Intervenor, v. MILGARD MANUFACTURING, INCORPORATION, d/b/a MILGARD WINDOWS, a Washington corporation, Defendant. COMBINED RESPONSE OF DEFENDANT AND PLAINTIFF EEOC TO CLASS MEMBER ISSIAKA I. NAMOKO'S FILINGS ENTITLED: (1) "PLAINTIFF'S/APPROVED CLASS MEMBER'S PLEADING, AND PETITION FOR FAIRNESS HEARING UNDER THE CONSENT DECREE" AND (2) "RE: PLAAINTIFF'S [SIC]/APPROVED CLASS MEMBER ;S [SIC] PETITION, FOR FOR [SIC] HEARING UNDER THE CONSENT DECREE" Defendant Milgard Manufacturing, Inc., and Plaintiff Equal Employment Opportunity Commission file jointly this Combined Response to the above-entitled Petitions filed by Issiaka I. Namoko, an individual accepted as a Class Member under the Consent Decree approved by this Court by Order entered May 19, 2004. In response to the Petitions, each of which seems to request a hearing before this Court under the Consent Decree, Milgard states as follows:

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1.

The underlying case was settled by a "Consent Decree" signed by the three

parties: the United States Equal Employment Opportunity Commission ("EEOC"), the Intervenor Leigh Ann Ornelas, and Defendant Milgard Manufacturing Incorporated ("Milgard"). The Consent Decree was submitted to the Court and approved by the Court as a "binding settlement agreement between the parties" by Order entered May 19, 2004. The Consent Decree and the Court's Order approving the Consent Decree are attached as Exhibits A and B, respectively. 2. In the Consent Decree, the terms for resolution of the EEOC's pattern and

practice "Class Claim" are found in Section VIII, paragraphs 51 through 57, pp. 19-28.1 3. Under the Consent Decree, Milgard was obligated to pay the gross sum of

$2,350,000.00 to resolve the EEOC class claim. That amount was deposited into a segregated bank account by Milgard, where it was maintained while the individuals qualified to receive payment from the fund as "Class Members" were determined by the process fully described in the Consent Decree. (CD 51.01 and 51.02). 4. The EEOC and Milgard jointly selected an independent firm to serve as the Class

Fund Administrator to manage the claims process, the Class Member selection process, and the distribution of the Class Fund under the Consent Decree. (CD 52.01-52.03). 5. Using Milgard's records, a database of individuals who had unsuccessfully sought

employment with Milgard in Denver during the defined "Class Liability Period" was prepared and submitted to the EEOC. For a period of 120 days, the Class Fund Administrator advertised the settlement and solicited and accepted claim forms from the general public. Each claim form

Subsequent references to the Consent Decree will be to paragraphs of the Consent Decree, as follows, "(CD 51.02)," for example, referencing paragraph 51.02 of the Consent Decree.

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was then examined and a follow-up investigation conducted, when necessary, to determine whether the claimant appeared to have been a bonafide applicant for employment with Milgard during the Class Liability Period. (CD 52.04-52.06.07). 6. Individuals who delivered a completed class claim form to the Class Fund

Administrator within the designated Claims Receipt Period were deemed to be "Claimants" and thereby eligible for consideration to become "Class Members" eligible to receive a share of the Class Fund. The EEOC was responsible for determining the criteria for eligibility for Class Membership after soliciting comments on the proposed criteria from Milgard. The EEOC was also responsible for determining the formula by which the Class Fund was to be distributed among Class Members, with the express limitation that no Class Member could receive a total distribution of more than $20,000.00 from the Class Fund. (CD 53.01 and 53.02). 7. Once the EEOC had made its determinations of eligibility and the amounts to be

offered, a class distribution list was established and provided to the Class Fund Administrator, who would then mail notices accordingly. Claimants determined to be ineligible would receive a notice of ineligibility and a notice of rights. (CD 53.04.01). 8. Those Claimants determined to be eligible Class Members received a notice of

eligibility and a settlement offer, together with a copy of the notice of rights, including the right to object and to seek a fairness hearing. (CD 53.04.02). Ultimately, the EEOC made the determination to distribute the Class Fund as follows: (1) $20,000.00 each to a small number of Class Members who had actively participated in the prosecution of the lawsuit and assisted the EEOC; (2) the remainder of the Class Fund to be distributed evenly among the remaining Class Members, subject to any increases for Class Members who objected to the initial offer and negotiated a larger payment. A copy of the memorandum distributed by the EEOC to announce 3

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the criteria for determining Class Member eligibility and the formula for distribution, is attached as Exhibit C.2 9. Issiaka Namoko did not timely submit a claim form. Rather, he delivered to the

EEOC a one-page letter asserting that he had applied for a position at Masco on several occasions. Although his letter was received well after the deadline for receipt of claims, his letter was nevertheless accepted and treated as a claims form, and Mr. Namoko was sent, and completed, a proper claims form. The EEOC made the determination to treat Mr. Namoko as a Class Member. The EEOC solicited Milgard's position on that decision, and although Milgard had no evidence that Mr. Namoko had ever applied or been considered for employment, Milgard responded that it had no objection to Mr. Namoko being treated as a Class Member. 10. Once the EEOC had determined the list of Class Members and the amounts to be

distributed, letters went out to all Class Members, including Mr. Namoko, with the offer of payment from the Class Fund under the EEOC's formula, in return for signing a release of claims against Milgard. According to the Class Fund Administrator, the initial amount offered to Class Members, other than those initially selected by the EEOC to receive the maximum $20,000.00, was $11,500.00. 11. Under the Consent Decree, a Class Member could object to the offer made from

the Class Fund by delivering a written explanation of the basis for the objection to the Class Monitor, another third party retained by the EEOC and Milgard to monitor compliance with the Consent Decree. (CD 43.01-43.02 and 54.02). The Monitor would evaluate any objection raised by a Class Member and attempt to resolve the objection with the Class Member through informal
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The date at the top, December 7, 2007, is obviously the date on which this copy was printed from the copy originally distributed by e-mail. The actual date of the memorandum or at least its distribution appears to have been January 19, 2005.

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efforts. Unresolved objections were then to be forwarded to the Court with copies to the EEOC and Milgard. (CD 54.03-54.04). 12. Because Milgard was not directly involved in the Claimant objections process, the

following information is recited based on statements made by the Monitor or the EEOC to the undersigned counsel for Milgard, and to each other, during conversations while that process was ongoing. Apparently, Mr. Namoko received the initial offer to resolve whatever claims he might have against Milgard and rejected the initial $11,500.00 settlement offer as being too small. It is not clear to the undersigned counsel in what form Mr. Namoko made his objection, nor is it clear to the undersigned counsel whether that objection was initially made to the Monitor or directly to the EEOC, as he was speaking to both simultaneously. What has been confirmed in recent days with the Monitor is that the Monitor negotiated with Mr. Namoko concerning the amount of the offer and ultimately offered Mr. Namoko the maximum amount allowed by the Consent Decree, $20,000.00. Mr. Namoko declined to accept that amount. 13. Under the Consent Decree, a Class Member like Mr. Namoko was limited in the

scope of his objections to "(a) challenging the fairness of the eligibility criteria and distribution formula established by the EEOC under subparagraph 53.01 of this Decree; and/or (b) challenging the eligibility and/or claim share determination of the individual Claimant's claim." The Claimant could not "challenge the Consent Decree, or any of the terms" of the Decree and "[a]ccordingly, any informal resolution by the Monitor or determination by the Court of a Claimant's objections, ... must be in accordance with the terms of the Consent Decree, including the $20,000 limitation per claimant established in paragraph 53.01, above." (emphasis added). (CD 54.01)

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14.

Mr. Namoko's objection was based solely on the amount offered to him. The

EEOC deemed it unnecessary to forward the objection to the Court because, under the terms of the Consent Decree, the Court could not grant any more than what had already been offered to Mr. Namoko. The Monitor and Milgard agreed with the EEOC's decision. 15. At some time after the Class Fund had been distributed to all Class Members in

accord with the EEOC's determinations, Mr. Namoko contacted the Equal Employment Opportunity Commission and asked if he could accept the offer of $20,000.00. Because nothing remained in the Class Fund to distribute, the EEOC advised him that it was too late to change his mind and accept the offer he had previously rejected. 16. Subsequently, Mr. Namoko filed a charge against Milgard with the EEOC,

obtained a right to sue, and initiated an action under Title VII alleging that Milgard refused to hire him because of his race. That case, Issiaka I. Namoko v. Milgard Manufacturing, Inc., Civil Action No. 06-cv-02031 WDM-CBS, is pending before the United States District Court, having recently been remanded by the Tenth Circuit Court of Appeals following appeal of an Order dismissing the case as untimely filed.3 17. As Milgard has explained to Mr. Namoko on numerous occasions, Milgard was

not in the position to make decisions concerning eligibility for participation in the Class Fund, the amount to be offered to Class Members from the Class Fund, or resolutions to be offered to objecting Class Members. Milgard had an opportunity to offer comments and suggestions on decisions made by the Equal Employment Opportunity Commission on those subjects. Milgard has also explained to Mr. Namoko on several occasions that the decision to include him as a
Mr. Namoko's petitions make reference to the Tenth Circuit's order, which held that issues arising under the Consent Decree could only be raised in this case. The Tenth Circuit did not order that this Court take any specific action on any motion Mr. Namoko might file. A copy of the Tenth Circuit's decision is attached as Exhibit D.
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Class Member did not reflect any determination that he had been the victim of racial discrimination. The criteria for inclusion as a Class Member did not include any examination of evidence related to hiring decisions regarding specific claimants or of whether racial bias played a part in any such decisions. (Exhibit C ­ "Eligibility Criteria and Distribution Formula"). 18. Milgard's monetary obligation under the Consent Decree ended with its payment

into the Class Fund of the amount required by the Consent Decree. Milgard met all of its obligations in settlement of the EEOC's class claims as to individual claimants. Mr. Namoko was offered the maximum amount available to a Class Member under the Consent Decree. There is no basis upon which to impose liability to Mr. Namoko on Milgard under the Consent Decree, nor is there any basis for awarding any monetary relief to Mr. Namoko from any source under the Consent Decree. For that reason, a fairness hearing at this time appears to be a waste of the Court's resources, just as it would have been in 2005 when Mr. Namoko refused an offer of the maximum amount allowed by the Consent Decree. 19. On the other hand, Milgard and EEOC see some benefit to providing a fairness

hearing for Mr. Namoko, if only to satisfy Mr. Namoko's desire to have "his day in Court." Mr. Namoko has engaged in an endless series of diatribes against Milgard based on his having been deprived of a fairness hearing. Mr. Namoko's communications have been both offensive and increasingly threatening. 20. Obviously, Mr. Namoko's concept of a "fairness hearing" that includes discovery,

the presentation of witnesses, trial to a jury, and other attributes of a trial on the merits are not contemplated by the Consent Decree or warranted by the very limited issue which can be presented to the Court, i.e. whether Mr. Namoko was entitled to receive more than he was offered under the Consent Decree. As stated above, there may be some psychological value to 7

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giving Mr. Namoko his "day in court" if it ends his ceaseless diatribes against Milgard and endless filings concerning the Consent Decree with the Court in this and his own case. 21. In summary, Milgard does not object to a fairness hearing but firmly asserts that

Mr. Namoko, having rejected a timely offer of the maximum amount of money available under the Consent Decree, is not now entitled to any award of monetary relief or of any other relief under the Consent Decree. Respectfully submitted this 14th day of December, 2007.

s/ Lawrence W. Marquess Lawrence W. Marquess Katherine S. Dix LITTLER MENDELSON A Professional Corporation 1200 17th Street, Suite 1000 Denver, CO 80202.5835 Telephone: 303.629.6200 Facsimile: 303.629.0200 ATTORNEYS FOR DEFENDANT MILGARD MANUFACTURING, INC.

s/ Nancy A. Weeks Nancy A. Weeks Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 303. E. 17th Ave., Suite 410 Denver, CO 80203 Telephone: 303.866.1947 Facsimile: 303.866.1375 Email: [email protected] ATTORNEYS FOR PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 8

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CERTIFICATE OF SERVICE I hereby certify that on that on this 14th day of December 2007, a true and correct copy of the above COMBINED RESPONSE OF DEFENDANT AND PLAINTIFF EEOC TO CLASS MEMBER ISSIAKA I. NAMOKO'S FILINGS ENTITLED: (1)

"PLAINTIFF'S/APPROVED CLASS MEMBER'S PLEADING, AND PETITION FOR FAIRNESS HEARING UNDER THE CONSENT DECREE" AND (2) "RE:

PLAAINTIFF'S [SIC]/APPROVED CLASS MEMBER ;S [SIC] PETITION, FOR FOR [SIC] HEARING UNDER THE CONSENT DECREE" was filed via CM/ECF, and served to the following party via regular U.S. Mail with a copy sent via electronic mail. A duly signed original is on file at the offices of Littler Mendelson, P.C. Issiaka I. Namoko P.O. Box 1253 Colorado Springs, CO 80901 E-mail: [email protected] s/ Christine Keitlen Christine Keitlen
Firmwide:83802760.2 021950.1083

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