Megan Toliver v. Healthcare Commons, Inc., Consent Decree

PAUL J. FISHMAN

United States Attorney

MICHAEL E. CAMPION

Assistant United States Attorney

970 Broad Street, Suite 700

Newark, NJ 07102

Tel. (973) 645-3141

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MEGAN TOLIVER,

Hon. Joseph H. Rodriguez

Plaintiff, Civil Action No. I: 15-3210 (JHR) (AMD)

v.

HEALTHCARE COMMONS. INC.,

Defendant.

CONSENT DECREE

This matter came before this Court for entry of this judgment by consent of the

Plaintiff, Megan Toliver ("Toliver" or "Employee'', as the context requires), and the

Defendant, Healthcare Commons, Inc. ("HCI" or "Employer", as the context requires)

(collectively, the "Parties"), to effectuate a compromise and settlement of all claims in

the above-captioned case.

Toliver commenced this action in the United States District Court for the District

of New Jersey, alleging that HCI violated the Uniformed Services Employment and

Reemployment Rights Act of 1994, 38 U.S.C. § 430 I et seq. ("USERRA"), by

discriminating against her based on her military service and/or military service

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obligations, and by failing to promptly reemploy her when she returned from active duty

in the Army Reserves.

HCI denies that it has violated USERRA, and its agreement to the tenns of this Consent

Decree is not an admission of liability or any violations of that statute. Nevertheless, as a result

of settlement discussions, the Parties have resolved their dispute and have agreed that this action

should be resolved by entry of this Consent Decree. It is the intent of the Parties that this

Consent Decree be a final and binding disposition of all claims alleged in the Complaint filed in

this case.

STIPULATIONS

I. The Parties acknowledge the jurisdiction of the United States District Court

for the District of New Jersey over the subject matter of this action and of the Parties to

this action for the purpose of entering this Consent Decree and, if necessary, enforcing

this Consent Decree.

2. Venue is proper in this judicial district for purposes of entering this Consent

Decree and any proceedings related to this Consent Decree. The Parties agree that all

conditions precedent to the institution of this action and its settlement have been fulfilled.

FINDINGS

3. Having reviewed and considered the provisions of this Consent Decree, the

Court finds the following:

a. The Court has jurisdiction over the subject matter of this action and the

Parties to this action.

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b. The terms and provisions of this Consent Decree are lawful, fair,

reasonable, and just. The rights of the Parties are adequately protected by

this Consent Deere~.

c. This Consent Decree conforms to the Federal Rules of Civil Procedure and

USERRA, and is not in derogation of the rights and privileges of any

person. The entry of this Consent Decree will further the objectives of

USERRA and will be in the best interest of the Parties.

NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

NON-ADMISSION

4. This Consent Decree is being entered into with the consent of the Parties

and shall not constitute an admission by HCI of any violations of USERRA.

NON-RET ALIA TI ON

5. HCI shall not take any action against any person, including but not limited

to Toliver, which constitutes retaliation or interference with the exercise of such person's

rights under USERRA because such person gave testimony, provided assistance, or

participated in any manner in an investigation or proceeding in connection with this

action.

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REMEDIAL REQUIREMENTS

6. Prior to or within ten (I 0) calendar days from the date of the Court's entry

of this Consent Decree, and the expiration of the seven (7) day revocation period

described in Section 16(c) below, HCI shall pay (or cause to be paid) to Toliver a total

sum of EIGHTEEN THOUSAND FIVE HUNDRED DOLLARS AND NO/I 00

($18,500.00), less applicable withholdings and deductions, (the ''Settlement Amount") in

the form of a certified bank check pursuant to the following requirements:

a. The check shall be made payable to Megan Toliver.

b. Of the Settlement Amount, nine-thousand two hundred and fifty dollars

($9,250.00) shall be attributable to back pay (less the required employee

withholdings and contributions on the back pay award as required by law),

with the balance being attributable to liquidated damages.

c. HCI also shall separately pay the appropriate employer's contribution to

Social Security and Medicare fund due on the back pay award and the

employer's contribution shall not be deducted from the overall settlement

amount. HCI further agrees that it will pay all monies withheld from the

back pay and front pay award to the appropriate governmental agencies.

d. Upon being paid this Settlement Amount ($18,500.00 less withholdings),

Toliver acknowledges that she is not owed any further monies by HCI.

e. HCI shall mail the Settlement Amount check described in paragraphs 6(a)

through 6( d), together with proof of withholding on the back pay award, to

Toliver by overnight delivery service to the following address:

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Megan Toliver

5 Mifflin Avenue

New Castle, DE 19720

f. HCI also shall mail proof of such payment and withholding to the United

States Attorney's Office ("United States") by overnight delivery service to

the following address:

Michael E. Campion

Assistant U.S. Attorney

Civil Rights Coordinator

970 Broad Street

Suite 700

Newark, NJ 07102

7. Prior to or within ten (10) calendar days from the date of the Court's entry

of this Consent Decree, HCI shall draft a personnel policy, to be included in its employee

handbook, that notifies employees of their rights and obligations under USERRA,

including their right to reemployment under 38 U.S.C. § 4312 and 38 U.S.C. § 4313 and

their right be free from discrimination and retaliation under 38 U.S.C. § 4311. The

personnel policy shall also include a statement that HCI is committed to complying fully

with the provisions of USERRA.

8. HCI shall integrate the policy described in paragraph 7 into its employee

handbook within sixty (60) calendar days from the date of the Court's entry of this

Consent Decree.

9. At least thirty (30) calendar days before the date that HCI intends to

integrate the policy into its employee handbook, HCI shall send the United States, for

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review and approval, a copy of the policy. All docum.ents provided to the United States

shall be sent via overnight delivery service to the address set forth in paragraph 6(g).

10. The United States shall provide HCI with comments and/or approval of the

policy within twenty-one (21) calendar days of receipt. If the Parties cannot agree on the

content of the policy, .the dispute resolution provisions in paragraphs 19 through 20 shall

apply.

J J. Within sixty (60) calendar days from the date of the Court's entry of this

Consent Decree, HCI shall provide at least one hour of training on the requirements of

USERRA and on employers' and service members' rights and obligations under the

statute, to all of HCI supervisors, managers, and administrative staff. Such training shall

be held at HCI's own expense.

12. At least thirty (30) calendar days before the date of the training described in

paragraph 11, HCI shall send the United States, for review and approval, a description of

the training and the proposed training materials. All documents provided to the United

States shall be sent via overnight delivery service to the address set forth in paragraph

6(g).

13. The United States shall provide HCI with comments and/or approval of the

training materials within twenty-one (21) calendar days of receipt. If the Parties cannot

agree on the content of the training and/or the training materials, the dispute resolution

provisions in paragraphs 19 through 20 shall apply.

14. Within ten ( 10) calendar days from the date that HCI conducts the training

described in paragraph 11, HCI shall provide the United States with documentary

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evidence that the training occurred, including a copy of the final training materials, a

disclosure of when the training was provided, and a list of all persons trained. All

documents provided to the United States shall be sent via overnight delivery service to

the address set forth in paragraph 6(g).

RELEASE OF CLAIMS

15. For and in consideration of the remedial relief being provided to her as

described in paragraphs 6 through 14 of this Consent Decree, Toliver releases and

discharges HCI (including any and all of its officers, directors, Board members,

employees, agents, attorneys, insurers, and all of their predecessors and successors in

interest) from all USERRA claims arising out of or relating to her prior employment with

HCI. This release and discharge of claims is subject to HCl's compliance with the terms

of this Consent Decree.

RETENTION OF JURISDICTION,

DISPUTE RESOLUTION, AND COMPLIANCE

16. This Court shall retain jurisdiction over this action and shall have all

available equitable powers, including injunctive relief, to enforce the terms of this

Consent Decree.

17. The Parties shall engage in good faith efforts to resolve any dispute

concerning compliance with this Consent Decree prior to seeking a resolution from the

Court.

18. In the event of a dispute, the Parties shall give notice to each other at least

twenty-one (21) calendar days before moving for review by the Court. The Parties may

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c~nduct expedited discovery under the Federal Rules of Civil Procedure for the purpose

of determining compliance with this Consent Decree or defending against a claim of

noncompliance.

MISCELLANEOUS

19. The Parties shall bear their own costs and expenses in this action, including

attorney fees.

20. If any provision of this Consent Decree is found to be unlawful, only the

specific provision in question shall be affected and the other provisions shall remain in

full force and effect.

21. This Consent Decree constitutes the entire agreement and commitments of

the Parties. Any modifications to this Consent Decree must be mutually agreed upon and

memorialized in writing signed by all Parties.

22. The Parties agree not to disparage one another, directly or indirectly, in

connection with any matters set forth in this Consent Decree or Toliver's separation from

employment with HCI. Aside from the disclosures necessary to effectuate the terms of

this Consent Decree, Toliver agrees not disclose any of the terms or conditions ·of this

Consent Decree to any other persons except her counsel, immediate family, financial

advisor, as may be required to enforce the terms of this Consent Decree, or as may be

required by applicable law. Nothing in this paragraph shall be construed as imposing a

confidentiality provision on the United States.

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EFFECTIVE DATE AND DURATION

23. This Consent Decree shall be effective on the date upon which it is entered

by the Court following the expiration of the seven (7) day revocation period set forth in

paragraph 16(c).

24. This Consent Decree shall expire, and this action shall be dismissed without

further order of this Court, one (I) year from the date of entry of this Consent Decree, or

when all of the remedial provisions of this Consent Decree have been effectuated,

whichever is later.

APPROVED and ORDERED this ---

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Agreed and Consented to by and on behalf of Plaintiff:

PAUL J. FISHMAN

United States Attorney

District of New Jersey

970 Broad Street, Suite 700

Newark, NJ 071 0

By: ~~~=--~~--'.:-+-~~~~

MICHAEL E. CAMPION

Assistant United States Attorney

Attorneys.for Plaintiff

Agreed and Consented to by and on hehalfof Defondant:

James V. Kain Date

Chief Executive Officer

TRACY A. W ALSR ESQ. Date

Weber Gallagher Simpson Stapelton Fires & Newby LLP

2000 Market Street, Suite 1300

Philadelphia, PA 19103

Attorneys.for Healthcare Commons, Inc.

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Agreed and Consented to by and on behalf of Plaintiff:

MEGAN TOLIVER

Plaintiff

PAUL J. FISHMAN

United States Attorney

District of New Jersey

970 Broad Street. Suite 700

Newark, NJ 0710

By: ----

MICHAELE. CAMPION

Assistant United States Attorney

Attorneys for Plaintiff

Agreed u1 d Consented to by and on behalf of Defendant:

/

TRACY A.WALSH, ESQ.

Weber Gallagher Simpson Stapelton Fires & Newby LLP

2000 Market Street, Suite 1300

Philadelphia, PA 19103

Attorneys for Healthcare Commons, Inc.

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Date

<f JL/-IS

Date

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