united states department of labor office of administrative law judges ...
M. PATRICIA SMITH Solicitor of Labor JOAN OESTRIN Regional Solicitor DOROTHY J. STEPfiENS Counsel for Civil Rights MATTHEW M. SCHEFF Attorney U.S. Dept of Labor Office of the Solicitor 230 South Dearborn Avenue Room 844 Chicago, Illinois 60604 (312) 1218 Fax: (312) 353-5698 E-mail: [email protected]
UNITED STATES DEPARTMENT OF LABOR OFFICE OF ADMINISTRATIVE LAW JUDGES
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Case No. 2012-0FC-
Plaintiff, v. LUND BOAT COMPANY, and BRUNSWICK CORPORATION, Defendants.
ADMINISTRATIVE COMPLAINT Plaintiff, Office of Federal Contract Compliance Programs, United States Department of Labor, (hereinafter "OFCCP"), by its attorneys, alleges: 1.
This action is brought by OFCCP to enforce the contractual obligations
imposed by Executive Order No. 11246 (30 Fed. Reg. 12319), as amended by Executive
11
Fed. Order 11
and
(43
or the
Order"), and the rules and
l)
pursuant thereto. under Sections 208 and 209 of
Jurisdiction over this action
Executive Order 11246,41 C.F.R. 60-1.26 and 41 C.F.R. Part 60-30. 3.
Defendant Lund Boat Company (hereinafter "Lund"), located in New
York Mills, Minnesota, is a subsidiary of Defendant Brunswick Corporation (hereinafter "Brunswick"), located in Lake Forest, Illinois (collectively "Defendants"). Defendant Lund is a manufacturer of freshwater fishing and utility boats; Defendant Brunswick is a manufacturer of marine, fitness, bowling, and billiards products. 4.
At all times pertinent hereto, Lund and Brunswick have been part of a
single entity that is a Government contractor or subcontractor within the meaning of Executive Order 11246, and are now, and at all material times have been, subject to the contractual obligations imposed on Government contractors and subcontractors by Executive Order 11246 and the implementing regulations issued thereunder. 5.
The regulations issued pursuant to Executive Order 11246 provide at 41
C.F.R. 60-1.40 and 41 C.F.R. 60-2.1 that each Government contractor with 50 or more employees and a contract of $50,000 or more must develop a written affirmative action program for each of its establishments in accordance with requirements set forth in 41 C.F.R. Part 60-2. 6.
At all times pertinent hereto, Lund and Brunswick have been part of a
single entity that had 50 or more employees.
2
7.
all
Lund and
that had and
part of a
or
of $50,000 or more. 8.
At all times pertinent hereto, Lund and Bnmswick have been required to
develop, maintain, and implement a written affirmative action program for each of their establishments in accordance with the requirements set forth in 41 C.F.R. Part 60-2. 9.
Pursuant to Section 202 of Executive Order 11246 and 41 C.F.R. 60.1-4,
Lund and Brunswick have agreed not to discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin, and have agreed to take affirmative action to ensure that applicants and employees are afforded employment opportunities without regard to their race, color, religion, sex, or national ongm. 10.
The regulations issued pursuant to Executive Order 11246 provide at 41
C.F.R. 60-2.1 (b) that, in order for a contractor to be in compliance with the Executive
Order, it must remedy any discrimination against members of an affected class, and must provide relief to such affected class members to remedy the effects of past discrimination. 11.
OFCCP conducted a compliance review of the Lund facility beginning on
September 19, 2007, with the issuance of a Scheduling Letter, pursuant to the FCCS Selection System. 12.
On October 17, 2007, in response to the Scheduling Letter, Lund and
Brunswick submitted the Lund facility's affirmative action plan to OFCCP.
3
March 13,
13
OFCCP that
for authorized
Kelly law firm of Seyfarth
Counsel LLP would be the
in the compliance review. On July
female applicants for the discriminated
2008, OFCCP issued a Pre-Determination Notice finding that General Labor position at the Lund facility were
during the period January 1, 2006 through December 31, 2007. On
2008, OFCCP issued a Notice of Violation finding discrimination against
August
female applicants for the 7A General Labor position at the Lund facility during the period January 1, 2006 through December 31, 2007 and failure to comply with various recordkeeping and monitoring provisions of Executive Order 11246. On June 1, 2009, OFCCP issued a Notice to Show Cause why enforcement proceedings should not be initiated. 15.
Defendants provided written responses to the Pre-Determination Notice,
Notice of Violation, and Notice to Show Cause. 16.
As a result of the compliance review, OFCCP found that beginning from
at least January 1, 2006, going forward to present, Defendants utilized a hiring process and selection procedures which discriminated against a class of over 200 female applicants for entry level 7A General Labor positions at the Lund facility on the basis of their gender. OFCCP determined that, in the absence of discrimination, at least 27 additional female applicants would have been hired. 17.
From January 1, 2006, through December 31, 2007, approximately 868
qualified applicants applied for the 7A General Labor Position at the Lund facility. Approximately seventy-five percent (75%) of applicants were male and approximately
4
of applicants were of
applicants were hired, while approximately
of
applicants were hired. The female selection rate was
of
the male selection rate, significantly less than the eighty percent "rule of thumb." 18.
During the conciliation process, Defendants contended that the under-
selection of female applications was due to a preference for applicants with manufacturing or related experience. However, even males without manufacturing or related experience were selected at a higher rate than females with manufacturing or related experience. The resulting overall statistical disparity disfavoring female applicants was consistently over -4.80 standard deviations. 19.
As a result of its compliance review, OFCCP also found that Defendants: a.
failed to keep an applicant log and retain all applications received
during the review period in violation of 41 C.F.R. § 60-1.12(a) and 41 C.F.R. § 60-3; b.
failed to maintain an accurate applicant flow log to determine
whether there are selection disparities in violation of 41 C.F.R. § 60-2.17(b)(2); c.
failed to monitor all records of all personnel activity to ensure the
non-discriminatory policy is carried out in violation of 41 C.F.R. § 60-2; d.
failed to make available for inspection an auditing system for
determining adverse impact or for developing and monitoring affirmative action programs in violation of 41 C.F.R. § 60-3; and
5
information
to
each job
whether the total
for that job had an
on any group in violation of 41 20.
or
.R. § 60-3.15A(2)(a).
The acts and practices described in paragraphs 16-19 above violate
Executive Order 11
and the regulations promulgated thereunder, and violate the
Defendants' contractual obligations to the Federal Government. 21.
All procedural requirements prior to the filing of this Complaint have been
met. OFCCP has issued a Notice to Show Cause why enforcement proceedings should not be initiated based upon its findings of Defendants' violations of Executive Order 11246, and has attempted to secure voluntary compliance through means of conciliation and persuasion. These efiorts were unsuccessful. 22.
Unless restrained by an Administrative Order, Defendants will continue to
violate the obligations imposed upon them by Executive Order 11246 and the rules and regulations issued pursuant thereto. WHEREFORE, Plaintiff prays for a recommended decision and order pursuant to 41 C.F.R. Part 60-30, providing the following relief: a.
an order permanently enjoining Defendants Lund Boat Company and
Brunswick Corporation and their officers, agents, servants, successors, divisions and subsidiaries, and those persons in active concert or participation with them from violating the Executive Order; b.
an order canceling all of Defendants Lund Boat Company's and
Brunswick Corporation's Government contracts and subcontracts and those of their officers, agents, successors, divisions, subsidiaries, and those persons in active concert or
6
with
ineligible for
modification of c.
an
Government contract or debarTing Defendants Lund Boat Company and Brunswick
Corporation and their officers, and
or
servants, successors, divisions and subsidiaries,
in active concert or participation with them, from entering into future
Government contracts and subcontracts until such time thereafter as Defendants Lund Boat Company and Brunswick Corporation have satisfied the Director of the Office of Federal Contract Compliance Programs that they have undertaken efforts to remedy their prior noncompliance and are currently in compliance with the provisions of the Executive Order and the regulations promulgated thereunder; d.
an order requiring Defendants Lund Boat Company and Brunswick
Corporation to provide complete relief to the affected class of female applicants including lost wages, interest, and all other benefits of employment resulting from their discriminatory failure to hire them, including, but not limited to, retroactive seniority, and an order requiring Defendants Lund Boat Company and Brunswick Corporation to hire women from the affected class list; e.
Plaintiff further prays for such other relief as justice may require.
Respectfully submitted,
M. PATRICIA SMITH Solicitor of Labor
JOAN E. GESTRIN Regional Solicitor
7
DOROTHY J. STEPHENS Counsel for Civil
Attorney Attorneys for Plainti tT U.S. Dept of Labor Office of the Solicitor 230 South Dearborn A venue Room 844 Chicago, Illinois 60604 (312) 353-1218 (312) 353-5698 (Fax) E-mail: matthew [email protected]
8
that a Office
Administrative Complaint, captioned
Compliance
Department of Labor v.
Lund Boat Company and Brunswick Corporation. was sent by Certified Mail this 29th
day of November, 2011 to:
Brunswick Corporation 1 North Field Court Lake Forest, Illinois 60045 Brunswick Corporation c/o The Corporation Trust Company Corporation Trust Center 1209 Orange Street Wilmington, DE 19801 Lund Boat Company P.O. Box 248 318 W. Gilman St. New York Mills, MN 56567 Lund Boat Company c/o The Corporation Trust Company Corporation Trust Center 1209 Orange Street Wilmington, DE 19801 Michelle K. Mellinger, Esq. Seyfarth Shaw LLP 131 S. Dearborn St., Suite 2400 Chicago, IL 60603
MATTHEW M. SC E One of the Attorneys for Plaintiff
9
UNITED STATES DEPARTMENT OF LABOR OFFICE OF ADMINISTRATIVE LAW JUDGES
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Case No. 2012-0FC-
Plaintiff, v. LUND BOAT COMPANY, and BRUNSWICK CORPORATION, Defendants.
ADMINISTRATIVE COMPLAINT Plaintiff, Office of Federal Contract Compliance Programs, United States Department of Labor, (hereinafter "OFCCP"), by its attorneys, alleges: 1.
This action is brought by OFCCP to enforce the contractual obligations
imposed by Executive Order No. 11246 (30 Fed. Reg. 12319), as amended by Executive
11
Fed. Order 11
and
(43
or the
Order"), and the rules and
l)
pursuant thereto. under Sections 208 and 209 of
Jurisdiction over this action
Executive Order 11246,41 C.F.R. 60-1.26 and 41 C.F.R. Part 60-30. 3.
Defendant Lund Boat Company (hereinafter "Lund"), located in New
York Mills, Minnesota, is a subsidiary of Defendant Brunswick Corporation (hereinafter "Brunswick"), located in Lake Forest, Illinois (collectively "Defendants"). Defendant Lund is a manufacturer of freshwater fishing and utility boats; Defendant Brunswick is a manufacturer of marine, fitness, bowling, and billiards products. 4.
At all times pertinent hereto, Lund and Brunswick have been part of a
single entity that is a Government contractor or subcontractor within the meaning of Executive Order 11246, and are now, and at all material times have been, subject to the contractual obligations imposed on Government contractors and subcontractors by Executive Order 11246 and the implementing regulations issued thereunder. 5.
The regulations issued pursuant to Executive Order 11246 provide at 41
C.F.R. 60-1.40 and 41 C.F.R. 60-2.1 that each Government contractor with 50 or more employees and a contract of $50,000 or more must develop a written affirmative action program for each of its establishments in accordance with requirements set forth in 41 C.F.R. Part 60-2. 6.
At all times pertinent hereto, Lund and Brunswick have been part of a
single entity that had 50 or more employees.
2
7.
all
Lund and
that had and
part of a
or
of $50,000 or more. 8.
At all times pertinent hereto, Lund and Bnmswick have been required to
develop, maintain, and implement a written affirmative action program for each of their establishments in accordance with the requirements set forth in 41 C.F.R. Part 60-2. 9.
Pursuant to Section 202 of Executive Order 11246 and 41 C.F.R. 60.1-4,
Lund and Brunswick have agreed not to discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin, and have agreed to take affirmative action to ensure that applicants and employees are afforded employment opportunities without regard to their race, color, religion, sex, or national ongm. 10.
The regulations issued pursuant to Executive Order 11246 provide at 41
C.F.R. 60-2.1 (b) that, in order for a contractor to be in compliance with the Executive
Order, it must remedy any discrimination against members of an affected class, and must provide relief to such affected class members to remedy the effects of past discrimination. 11.
OFCCP conducted a compliance review of the Lund facility beginning on
September 19, 2007, with the issuance of a Scheduling Letter, pursuant to the FCCS Selection System. 12.
On October 17, 2007, in response to the Scheduling Letter, Lund and
Brunswick submitted the Lund facility's affirmative action plan to OFCCP.
3
March 13,
13
OFCCP that
for authorized
Kelly law firm of Seyfarth
Counsel LLP would be the
in the compliance review. On July
female applicants for the discriminated
2008, OFCCP issued a Pre-Determination Notice finding that General Labor position at the Lund facility were
during the period January 1, 2006 through December 31, 2007. On
2008, OFCCP issued a Notice of Violation finding discrimination against
August
female applicants for the 7A General Labor position at the Lund facility during the period January 1, 2006 through December 31, 2007 and failure to comply with various recordkeeping and monitoring provisions of Executive Order 11246. On June 1, 2009, OFCCP issued a Notice to Show Cause why enforcement proceedings should not be initiated. 15.
Defendants provided written responses to the Pre-Determination Notice,
Notice of Violation, and Notice to Show Cause. 16.
As a result of the compliance review, OFCCP found that beginning from
at least January 1, 2006, going forward to present, Defendants utilized a hiring process and selection procedures which discriminated against a class of over 200 female applicants for entry level 7A General Labor positions at the Lund facility on the basis of their gender. OFCCP determined that, in the absence of discrimination, at least 27 additional female applicants would have been hired. 17.
From January 1, 2006, through December 31, 2007, approximately 868
qualified applicants applied for the 7A General Labor Position at the Lund facility. Approximately seventy-five percent (75%) of applicants were male and approximately
4
of applicants were of
applicants were hired, while approximately
of
applicants were hired. The female selection rate was
of
the male selection rate, significantly less than the eighty percent "rule of thumb." 18.
During the conciliation process, Defendants contended that the under-
selection of female applications was due to a preference for applicants with manufacturing or related experience. However, even males without manufacturing or related experience were selected at a higher rate than females with manufacturing or related experience. The resulting overall statistical disparity disfavoring female applicants was consistently over -4.80 standard deviations. 19.
As a result of its compliance review, OFCCP also found that Defendants: a.
failed to keep an applicant log and retain all applications received
during the review period in violation of 41 C.F.R. § 60-1.12(a) and 41 C.F.R. § 60-3; b.
failed to maintain an accurate applicant flow log to determine
whether there are selection disparities in violation of 41 C.F.R. § 60-2.17(b)(2); c.
failed to monitor all records of all personnel activity to ensure the
non-discriminatory policy is carried out in violation of 41 C.F.R. § 60-2; d.
failed to make available for inspection an auditing system for
determining adverse impact or for developing and monitoring affirmative action programs in violation of 41 C.F.R. § 60-3; and
5
information
to
each job
whether the total
for that job had an
on any group in violation of 41 20.
or
.R. § 60-3.15A(2)(a).
The acts and practices described in paragraphs 16-19 above violate
Executive Order 11
and the regulations promulgated thereunder, and violate the
Defendants' contractual obligations to the Federal Government. 21.
All procedural requirements prior to the filing of this Complaint have been
met. OFCCP has issued a Notice to Show Cause why enforcement proceedings should not be initiated based upon its findings of Defendants' violations of Executive Order 11246, and has attempted to secure voluntary compliance through means of conciliation and persuasion. These efiorts were unsuccessful. 22.
Unless restrained by an Administrative Order, Defendants will continue to
violate the obligations imposed upon them by Executive Order 11246 and the rules and regulations issued pursuant thereto. WHEREFORE, Plaintiff prays for a recommended decision and order pursuant to 41 C.F.R. Part 60-30, providing the following relief: a.
an order permanently enjoining Defendants Lund Boat Company and
Brunswick Corporation and their officers, agents, servants, successors, divisions and subsidiaries, and those persons in active concert or participation with them from violating the Executive Order; b.
an order canceling all of Defendants Lund Boat Company's and
Brunswick Corporation's Government contracts and subcontracts and those of their officers, agents, successors, divisions, subsidiaries, and those persons in active concert or
6
with
ineligible for
modification of c.
an
Government contract or debarTing Defendants Lund Boat Company and Brunswick
Corporation and their officers, and
or
servants, successors, divisions and subsidiaries,
in active concert or participation with them, from entering into future
Government contracts and subcontracts until such time thereafter as Defendants Lund Boat Company and Brunswick Corporation have satisfied the Director of the Office of Federal Contract Compliance Programs that they have undertaken efforts to remedy their prior noncompliance and are currently in compliance with the provisions of the Executive Order and the regulations promulgated thereunder; d.
an order requiring Defendants Lund Boat Company and Brunswick
Corporation to provide complete relief to the affected class of female applicants including lost wages, interest, and all other benefits of employment resulting from their discriminatory failure to hire them, including, but not limited to, retroactive seniority, and an order requiring Defendants Lund Boat Company and Brunswick Corporation to hire women from the affected class list; e.
Plaintiff further prays for such other relief as justice may require.
Respectfully submitted,
M. PATRICIA SMITH Solicitor of Labor
JOAN E. GESTRIN Regional Solicitor
7
DOROTHY J. STEPHENS Counsel for Civil
Attorney Attorneys for Plainti tT U.S. Dept of Labor Office of the Solicitor 230 South Dearborn A venue Room 844 Chicago, Illinois 60604 (312) 353-1218 (312) 353-5698 (Fax) E-mail: matthew [email protected]
8
that a Office
Administrative Complaint, captioned
Compliance
Department of Labor v.
Lund Boat Company and Brunswick Corporation. was sent by Certified Mail this 29th
day of November, 2011 to:
Brunswick Corporation 1 North Field Court Lake Forest, Illinois 60045 Brunswick Corporation c/o The Corporation Trust Company Corporation Trust Center 1209 Orange Street Wilmington, DE 19801 Lund Boat Company P.O. Box 248 318 W. Gilman St. New York Mills, MN 56567 Lund Boat Company c/o The Corporation Trust Company Corporation Trust Center 1209 Orange Street Wilmington, DE 19801 Michelle K. Mellinger, Esq. Seyfarth Shaw LLP 131 S. Dearborn St., Suite 2400 Chicago, IL 60603
MATTHEW M. SC E One of the Attorneys for Plaintiff
9
