By PURNA NEMANI FOR COURT HOUSE NEWS SERVICE – HONOLULU (CN) – The Equal Employment Opportunities Commission stonewalled the party bar Senor Frog’s from understanding sexual harassment charges, a federal judge ruled.

The commission first informed La Rana Hawaii dba Senor Frog’s and its staffing company Altres in 2008 that it was bringing discrimination charges. It sued the companies in December 2011 after the conciliation process fell through.

But the companies claim that the commission tried to back them into a big payout without giving any information on the charges.

Senor Frog’s balked at the demand for a $500,000 class fund, as well as $200,000 in compensatory and punitive damages. It said: “the EEOC is demanding that [La Rana (dba Senor Frog’s)] make a ‘nearly blind settlement offer’ in order for the conciliation process to continue.”

Altres settled with Heather Colletto, the employee who first went to the commission with discrimination charges against Senor Frog’s.

The commission said, however, that failed to negotiate with it properly. After demanding $200,000 in compensatory damages, Altres allegedly responded with an offer of $10,000 and a request under the Freedom of Information Act. This offer furthermore was apparently conditioned “on overly onerous terms,” and Altres refused to acknowledge the class fund.”

The commission ended the conciliation process with Senor Frog’s in October 2011, did the same with Altres a month later, and then filed suit.

Its complaint says that Senor Frog’s subjected Colletto and a class of employees to “unwelcome physical and verbal sexual conduct, disparate treatment, constructive discharge, and retaliation on the basis of sex.”

Beverly Subia, Connie Sanchez and Kristen Ertefai claim that their tenure at Senor Frog’s was marked by “sexually explicit remarks by the owner toward a female server,” “sexual advances and demands by management officials to female employees,” and “sexual comments and unwanted touching of female employees’ breasts and buttocks.” The women claim that when they complained about the treatment, the chain reduced their hours or fired them.

“Senor Frog’s human resource manager made [defendants’] anti-female animus clear when at a meeting wherein other management [officials] explored the possibilities of hiring additional female bartenders, the human resources manager disapprovingly rejected the idea saying he did not want more females as they were too much ‘drama,'” according to the EEOC complaint, as quoted by the District of Hawaii.

In their motions to dismiss the complaint, Senor Frog’s and Altres said that the EEOC failed to negotiate with them in good faith or to provide them with the “information necessary to assess class claims.”

“It argues that violations uncovered during the EEOC’s investigation are actionable, but the EEOC ‘may not use discovery in the resulting lawsuit as a fishing expedition to uncover more violations,'” U.S. District Judge Leslie Kobayashi wrote.

Though the EEOC does not have to identify every potential class member, precedent requires it to “discover such individuals and wrongdoing during the course of its investigation,” according to the court.

Senor Frog’s pointed to a New York case in which a federal judge slammed the commission for “stonewall[ing]” an employer after demanding a large sum of money amid requests for more information.

It also claimed that the commission could not support its constructive discharge claims to the other female employees besides Colletto.

Altres meanwhile said that it has no “causal connection” to the women’s harassment.

“Altres argues that, because the EEOC failed to identify or conciliate on behalf of employees other than Subia and Sanchez, the EEOC should be precluded from trying to represent a larger ‘class’ of employees,” the court explained.

“Altres argues that the complaint contains conclusory statements rather than facts,” and “lumps together ‘defendants’ owner[s], high level executives, management and employees,” Kobayashi wrote.

Kobayashi stayed the proceedings Monday after finding that the commission’s attempts at conciliation were halfhearted at best.

“It is no surprise that defendants, faced with little information, were unwilling to entertain the EEOC’s ‘take-it-or-leave-it’ offer,” Kobayashi wrote. “The EEOC cannot expect employers to make substantial offers of settlement when they are provided with no information with which to evaluate their liability.

“The court finds that, based on the correspondence supplied by the parties, the EEOC did not provide defendants with sufficient information to understand or evaluate the claims,” she added. “The court thus concludes that the EEOC failed to conciliate in good faith.”

As the parties return to conciliation, the commission must disclose the number and identity of claimants found during its initial investigation, as well as specific incidents of harassment or discrimination.

The commission has until November to complete conciliation and file a first amended complaint, or else face automatic dismissal.
Kobayashi slammed the current complaint for the vague references to the dates of the alleged harassment and discrimination. “The timeline of events may prove significant, given that Altres was allegedly not under contract with La Rana after December 2008,” she found.

According to local reports, the Mexico-based Senor Frog’s closed its Waikiki location on Aug. 12 because it could not renegotiate its lease after five years in the Royal Hawaiian Center.

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