Opinion
Civil Action No. 96-0562-CB-C
June 14, 1996
Consent Decree
This action was brought by the United States against the Alabama State Docks Department ("State Docks") to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") following receipt by the Department of Justice from the Equal Employment Opportunity Commission ("EEOC") of a charge, EEOC Charge No. 130-91-2459, filed by Glenda L. Protzeller against State Docks.
In its complaint, the United States alleges that State Docks has engaged in unlawful employment practices in violation of Title VII at its Bulk Materials Handling Plant by failing or refusing to hire Glenda L. Protzeller for the position of Docks Maintenanceman on the basis of her sex, female.
State Docks specifically denies that it is or has been engaged in any unlawful discrimination in employment on the basis of sex and further asserts that it has been and remains committed to a policy of equal employment opportunity for females. Accordingly, the parties, desiring to avoid protracted, expensive and unnecessary litigation, and sharing the goal of insuring equal employment opportunity within State Docks' work force, agree to the jurisdiction of this Court over the parties and the subject matter of this action, and hereby waive, for purposes of entry of this Consent Decree ("Decree") only, the entry of findings of fact and conclusions of law.
This Decree resolves all issues raised in the complaint and the parties accept this Decree as final and binding among themselves as to the issues resolved herein. This Decree, being entered with the consent of State Docks, shall not constitute an admission, an adjudication or a finding on the merits of the case.
The parties stipulate and agree, with respect to this case only, to the following: As of June 23, 1994, there were approximately 87 service/maintenance positions in Bulk Operations at State Docks. All of these positions were occupied by males and, insofar as is known, none has ever been occupied by a female.
It is, therefore, ORDERED, ADJUDGED and DECREED as follows:
GENERAL INJUNCTIVE PROVISIONS
1. State Docks, by and through its officials, agents, employees, successors and all persons in active concert or participation with it in the performance of employment or personnel functions, shall not engage in any act or practice that has the purpose or effect of unlawfully discriminating against any female employee, application or potential applicant for employment in a service/maintenance position at the Bulk Materials Handling Plant because of that person's sex.
2. State Docks shall not retaliate against or in any respect adversely affect any person because that person has opposed allegedly discriminatory employment policies or practices, filed a charge with the EEOC or participated in or cooperated with the initiation, investigation, litigation or administration of this case or this Decree.
SPECIFIC INJUNCTIVE RELIEF
3. State Docks shall conduct training sessions on equal employment opportunity and nondiscrimination for each employee who has the authority to interview applicants and make recommendations or decisions of whom to select to fill vacancies at the Bulk Materials Handling Plant. This training shall include, but is not limited to, training in employee selection, applicant evaluation and the purpose for collecting the data required under this Decree. This training shall be repeated as necessary, not less than annually, for all newly hired or promoted employees who may be called upon to interview applicants and make recommendations or decisions of whom to select to fill vacancies at the Bulk Materials Handling Plant. Employees who have not received this training shall not be involved in any manner in the recommendation or decision-making processes. State Docks shall submit an outline of the manner in which it intends to conduct such training to the United States within 90 days after the entry of this Decree.
4. Within 30 days after the entry of this Decree, State Docks shall designate a State Docks official who shall be responsible for monitoring State Docks' efforts to implement and achieve the objectives of this Decree, coordinating any training needed to achieve the objectives of this Decree, assisting supervisory personnel in resolving or handling any complaints of sex discrimination and maintaining the records necessary to prepare and submit the reports required under paragraphs 12 to 17 of this Decree. The designated State Docks official shall also be responsible for preparing and submitting the compliance reports under paragraphs 15 to 17 of this Decree. If at any time during the term of this Decree State Docks designates a different official to serve in this capacity, State Docks shall so notify the United States within seven days of the effective date of the appointment.
5. State Docks recognizes that its supervisory personnel have direct responsibility for taking steps to ensure that all employees work in an environment free of barriers to equal employment opportunity. To that end, State Docks shall require all its officials and employees with the authority or responsibility to appoint, recommend appointment, recruit, interview, evaluate or select employees at the Bulk Materials Handling Plant, or to implement any portion of this Decree, to read, in its entirety, the provisions of this Decree. In addition, these officials and employees shall be evaluated on their effectiveness in contributing to State Docks meeting the objectives of this Decree. Their performance evaluations shall include an evaluation of their effectiveness in contributing to State Docks meeting the objectives of this Decree.
6. It is a purpose of this Decree to ensure that females are not disadvantaged by State Docks' recruitment or hiring practices. The achievement of this objective is facilitated by a recruitment and hiring process free of unlawful barriers, by substantial recruitment efforts and by the use of fair and nondiscriminatory hiring procedures. Accordingly, State Docks shall institute the recruitment provisions described below in paragraph 7.
RECRUITMENT PROVISIONS
7. Within 180 calendar days after the entry of this Decree, State Docks shall implement the following recruitment program for service/maintenance vacancies at the Bulk Materials Handling Plant:
(a) If no interest in the vacancy is expressed by incumbent employees within the period required under the labor agreement between State Docks and the International Longshoremen's Association, Local 1984, State Docks shall advertise each service\maintenance vacancy at the Bulk Materials Handling Plant in the "Help Wanted" or classified sections of at least the Mobile Press Register. Each advertisement shall run at least five consecutive days, one of which must be a Sunday, before the close of the application deadline.
(b) State Docks shall develop a list of external recruitment sources to which job announcements suitable for posting will be sent. The recruitment sources shall include, but not be limited to, (1) high schools, community colleges, colleges and universities, and (2) organizations with substantial female membership or participation.
(c) State Docks shall advertise each service/maintenance vacancy in free public service radio announcements, to the extent such announcements are available, and on at least one radio station. The free public service radio announcements and the paid radio advertisement shall be run on dates to coincide with the advertisements published in the Mobile Press Register and the job announcements distributed to recruitment sources. The paid radio advertisements shall be run twice daily during weekday morning and afternoon "drive time" (7:00 to 9:00 a.m. and 4:00 to 6:00 p.m.) for five consecutive days on each radio station and on dates to coincide with the print advertisements published in newspapers and the job announcements distributed to recruitment sources.
(d) Each newspaper advertisement, radio advertisement and job announcement for each service/maintenance vacancy shall specify (1) the nature of the position; (2) the minimum qualifications; (3) the application procedures; (4) the starting salary; (5) the closing date for applications for the position; and (6) that State Docks is an equal employment opportunity employer and is seeking qualified female as well as male applicants.INDIVIDUAL RELIEF
Without admitting the contentions of the United States as set forth in its complaint, and in settlement of the claim of the United States for relief on behalf of Glenda L. Protzeller, as well as settlement of Ms. Protzeller's individual claim if she accepts the relief provided her by this Decree, State Docks agrees to do the following:
8. (a) State Docks shall offer Ms. Protzeller the next available Port Shift Operative or Port Lubricator position at the Bulk Materials Handling Plant, together with remedial seniority in that position as of April 1, 1991, for all purposes for which such a seniority date may be used.
(b) State Docks shall offer Ms. Protzeller a monetary award of $47,560.24.
(c) State Docks shall offer Ms. Protzeller $18,710.34 as the attorneys fees and costs counsel for the parties have been informed that Ms. Protzeller's private attorney is seeking for services rendered in connection with her charge of discrimination which provided the basis for the filing of the complaint in this case.
9. The amount of $39,373.23 of Ms. Protzeller's monetary award shall be subject to income tax and any required FICA withholding. In addition, if Ms. Protzeller accepts the job opportunity and remedial seniority relief to be offered her pursuant to paragraph 8(a) of this Decree, the amount of $39,373.23 shall be subject to the employee's contribution Ms. Protzeller would have made to the retirement fund at State Docks until the date she is employed to the extent required to make her enrollment in that retirement fund fully retroactive to April 1, 1991. of the total monetary award of $47,560.24, $8,187.02 of the award shall be considered interest. State Docks shall pay separately any required employer's contribution to the Social Security Fund, and if Ms. Protzeller accepts the job opportunity and remedial seniority relief to be offered to her pursuant to paragraph 8(a) above, any employer contributions to the retirement fund of State Docks that are necessary to make Ms. Protzeller's enrollment in the retirement fund of State Docks fully retroactive to April 1, 1991.
10. State Docks agrees to notify Ms. Protzeller of the terms of this Decree within 14 days of its entry by mailing to her, by certified mail, return receipt requested, a copy of the letter in the form set forth in Appendix A and enclosing a copy of this Decree and a copy of the Release Form attached as Appendix B and Individual Relief form attached as Appendix C. The letter identified as Appendix A will advise Ms. Protzeller that to accept the relief offered to her or any part of it, she must return the executed Appendix B Release form and the Appendix C Individual Relief Form to State Docks within 45 days of her receipt of the Appendix A letter unless she shows good cause for failing to do so.
11. Within 20 days from the date of the receipt of Ms. Protzeller's executed Appendix B Release form and Appendix C Individual Relief form, State Docks shall pay Ms. Protzeller the monetary award of $47,560.24, minus any required deductions as described in paragraph 9 above, and shall also pay Ms. Protzeller $18,710.34 for the fees and costs of her private attorney as described in paragraph 8(c).
RECORDS AND REPORTS
12. For the duration of this Decree, State Docks shall maintain all records necessary for the implementation of this Decree. The following records shall be maintained in connection with each service/maintenance position filled at the Bulk Materials Handling Plant:
(a) All applications for employment, eligibility lists, seniority rosters, interview notes, pre-employment test results, materials relating to recruitment activities and reason for selection or non-selection.
(b) A form on which each applicant is requested to provide the following information: sex, mailing address, telephone number, the job applied for, date of application, and how the applicant learned of the job opening. The form shall clearly state that (1) the information requested is optional; (2) the form will be kept separate from the application for employment; and (3) the information will not be used to make any employment decision.
(c) Copies (or the text for radio advertisements) of each advertisement and job announcement for each vacancy, the places where it was sent or distributed, the persons contacted at such places and the dates of such contacts, the newspapers in which it was published and the dates of publication, and the radio stations where it was broadcast and the dates and times of such broadcasts.
13. Any document containing the information listed in paragraph 12(b) above shall be collected separately from the application for employment and sent directly to the Personnel Manager where it will be kept in confidential files for the purpose of compiling the applicant data necessary to fulfill the reporting requirements of this Decree.
14. Copies of all records kept pursuant to this Decree shall be provided to the United States promptly upon request without further order of this Court. If any stage of the selection process is contracted out to a third party, that party shall be requested by State Docks to retain such records as are required by this Decree.
15. For purposes of this Decree, a reporting period shall run from January 1 through December 31 of each year, the first of which period ends on December 31, 1996. Within 30 days after the close of each reporting period, State Docks shall provide to the United States a compliance report with the following information:
(a) A detailed report of the implementation of the recruitment program described in this Decree during the reporting period, including the dates during which recruitment was conducted for each vacancy (the opening and closing dates) and identification of all recruitment methods used.
(b) A numerical summary, by sex, of persons who applied and were hired for service/maintenance positions at the Bulk Materials Handling Plant during the reporting period. This summary should also include for each person hired, the following information: the job classification hired, transferred or promoted into; the date of the personnel action; and the employment status (full-time, part-time, permanent, temporary or seasonal employee).
(c) A discussion of all efforts made to meet the objectives of this Decree.
(d) Copies of any written complaints or records of oral complaints about sex discrimination (including sexual harassment) received regarding the Bulk Materials Handling Plant and a description of State Docks' disposition of each complaint.
16. State Docks shall also provide to the United States within 30 days after the entry of this Decree, a current summary of the information described in paragraph 15 above. The parties shall confer, within 30 days after the United States receives the summary, through their respective counsel or other representative, to review State Docks' proposals for executing the recruitment program set forth in this Decree and to discuss necessary modifications and amendments. If none is necessary, the parties are not required to meet.
17. In addition to a hard copy of each compliance report required under this Decree, State Docks shall provide the United States, if possible, with all base data used to produce each compliance report in machine-readable form with one record per person. A record layout and all associated documentation necessary to use this information shall also be provided.
18. The parties shall confer at least annually, the first of these annual meetings to be scheduled within 60 days after the close of each reporting period, through their respective counsel or other representative, to review the effectiveness of the recruitment program set forth in this Decree and to determine whether any modification or amendment is necessary. The parties may confer more frequently if any party so requests. The United States reserves the right to move the Court for additional relief relating to the recruitment program at any time during the life of this Decree.
DISPUTES
19. Insofar as any of the provisions of this Decree or any actions taken pursuant to such provisions may be inconsistent with any state law or regulation, the provisions of this Decree shall prevail in accordance with the supremacy of federal law under the U.S. Constitution.
20. The United States may, without further order of the Court, use all discovery allowed under the Federal Rules of Civil Procedure to enforce or monitor compliance with this Decree.
21. The parties shall attempt to resolve informally any disputes that may occur under this Decree. If the parties are unable to reach agreement within 30 days after a matter has been brought to the attention of one of the parties by another party, the issue may be submitted by either party to the Court for resolution.
DELIVERY
22. All documents required to be delivered under this Decree to the United States shall be sent to the following address: Chief, Employment Litigation Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 65968, Washington, D.C. 20035-5968.
RETENTION OF JURISDICTION
23. The Court shall retain jurisdiction of this action for four years from the date of entry of this Decree for the purpose of enforcing the Decree as may be necessary. After four years this matter shall be dismissed unless the United States moves, for good cause shown upon notice to State Docks, for its continuation to carry out the purpose or provisions of this Decree. In the event that the United States moves to extend this Decree for good cause, this Decree shall remain in effect until the motion is resolved.