February 2, 1978 the Court ordered that notice of the proposed settlement and its terms be disseminated to the plaintiff class. Pursuant to this Order, notice was mailed to all known plaintiffs. Additionally, notice was published in a number of newspapers and journals for a period of weeks in an attempt to notify class members that the Court recognized "may be difficult to identify and/or locate (e.g., rejected applicants)."
Notice to the class was provided pursuant to Fed. R. Civ. P. 23(a). Rule 23(e) provides that notice of a proposed "compromise shall be given to all members of the class in such a manner as the Court directs." By its terms, Rule 23(e) vests broad discretion in the court to determine what constitutes adequate notice. See C. Wright & A. Miller, Federal Practice & Procedure § 1799 at 237. Moreover, publication has been widely recognized as a proper method of notice for class members who cannot reasonably be individually identified and/or located.
See e.g., Mendoza v. United States, 623 F.2d 1338, 1351 (9th Cir. 1980) cert. denied, 450 U.S. 912, 101 S. Ct. 1351, 67 L. Ed. 2d 336 (1981); Luevano v. Campbell, 93 F.R.D. 68 (D.D.C. 1981); Quigley v. Braniff Airways, Inc., 85 F.R.D. 74, 77 (N.D. Tex. 1979). Thus, the Court concludes that adequate notice was provided to the plaintiff class and the FTC did not "default in providing movants with proper notice," as movants allege.
In light of the Court's rejection of Movants' claims, it is unnecessary to consider whether the Court has the power to grant Movants the relief they requested either under the terms of the settlement agreement or Fed. R. Civ. P. 60(b).
An Order consistent with foregoing will be issued of even date herewith.
For the reasons set forth in the Memorandum Opinion in the above-captioned case, issued of even date herewith, it is, by the Court, this 3rd day of November, 1982 hereby,
ORDERED that Movants' Motion to Vacate Portion of Settlement Order is denied.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 559 F. Supp.]
STIPULATION AND ORDER
Plaintiff Donald L. Bachman filed an administrative complaint of race discrimination on May 2, 1975, alleging, inter alia, that the Federal Trade Commission ("Commission") improperly failed to promote him to GS-15.
On January 16, 1976, after more than 180 days had passed since the filing of his administrative complaint without the issuance of a final agency decision, plaintiff filed this action in the United States District Court challenging certain of the Commission's employment practices as racially discriminatory. The plaintiff sought to bring this action not only on behalf of himself but also as a class action on behalf of other similarly situated blacks and other minorities.
The plaintiff alleges, inter alia, that the Commission's employment practices violate Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
On July 29, 1976, the Court conditionally certified a class of individuals described as (1) all blacks, GS-9 and above, presently employed as professionals and semi-professionals at the Federal Trade Commission; (2) all blacks who have applied for such positions and have been denied employment by reason of racial discrimination; and (3) all blacks who have been employed in such positions by the Commission in the past and have left or have been discharged by reason of racial discrimination.
On September 26, 1977, the Court granted the motion of Doris L. Hollingsworth to intervene as a plaintiff.
The parties have endeavored to resolve these matters through agreement and have concluded that it is in the best interests of all concerned to settle this action in the manner and on the terms set forth in this Stipulation.
This Stipulation is entered into voluntarily by the Commission in order to reaffirm its policy of seeking out, employing, and promoting the best qualified individuals possible without regard to race, color, religion, national origin or sex and as an effort to respond to and rectify perceptions that minorities have not been well-represented in the Commission's professional workforce.
Therefore, upon due consideration of the record herein, and upon the Stiuplation of the parties, before the taking of any testimony and without trial or adjudication of any issue of fact or law herein, the Court, being fully advised of the premises, concludes that it has jurisdiction over the parties and subject matter of this action and further ORDERS AND DECREES that:
I. CLASS REPRESENTATION
The Court hereby gives final certification to a class consisting of (1) all blacks, GS-9 and above, presently employed by the Commission as attorneys, economists, accountants, consumer protection specialists, research analysts and computer specialists; (2) all blacks who have applied for such positions and have been denied employment by reason of racial discrimination; and (3) all blacks who have been employed in such positions by the Commission in the past and have left or have been discharged by reason of racial discrimination.
II. SCOPE OF STIPULATION
This Stipulation applies, except where otherwise stated, to minority persons1a employed by the Commission at GS-9 and above as attorneys, accountants, economists, consumer protection specialists, research analysts and computer specialists.
The Commission, its officers, agents, employees, and all persons in active concert or participation with them or at their direction, shall hire and assign applicants for employment and shall promote, train (to the extent training is offered), discipline, demote and dismiss employees on the basis of individual merit, without regard to race, or color, and without engaging in any act or practice which has the purpose or the effect of illegal discrimination against any individual because of his or her race or color. Consistent with this obligation, the Commission will make additional efforts to find and extend offers to qualified minority applicants and to insure that all employees receive the types of assignments and delegation of responsibility required for promotion.
The Commission shall not engage in acts or practices constituting a reprisal of any kind against any individual because of opposition to any practice declared unlawful under Title VII or because of filing of a charge, giving of testimony or assistance or because of participation in any manner in any investigation, proceeding, or hearing under Title VII, or because of any assertion of rights under this Stipulation.
1. The defendant, after the Court's approval of this Stipulation, shall appoint Mr. Carol Thomas, Secretary of the Commission, as Administrator of this Stipulation. The Administrator will have the supervisory responsibility for the Commission's compliance with this Stipulation and will be accountable only to the Chairman and the Court for the exercise of this responsibility. In the performance of all duties under this Stipulation, the Administrator will consult with, and obtain the advice of, the Commission's Director of Equal Employment Opportunity. Should Mr. Thomas be unable to serve as Administrator, the defendant, after consultation with counsel for plaintiffs, shall appoint a successor Administrator acceptable to plaintiffs' counsel.
2. For a period of five years following the Court's approval of this Stipulation,2a the Chairman of the Commission will meet annually with the Director of Equal Employment Opportunity at the Commission, the Executive Director, the Administrator, and the heads of each of the Commission's bureaus and major operating offices,3a within sixty (60) days following the submission of the reports required by this Stipulation, to measure the Stipulation's effectiveness, to ascertain what each manager has done in the preceding year to insure that the goals and objectives of the Stipulation have been met, and to ascertain what specific commitments will be made to insure the implementation of the goals of the Stiuplation for the coming year.
V. AFFIRMATIVE ACTION GOAL
While it is the Commission's objective to hire and promote employees on the basis of individual merit without regard to race, color, sex, religion or national origin, the Commission is aware that it has in the past been less successful in hiring and retaining qualified minority employees than it has in hiring and retaining qualified non-minority employees. Accordingly, the Commission has agreed to the following employment goals for the period covered by this Stipulation. While these goals are not to be considered rigid or inflexible quotas, the Commission is expected to pursue them in good faith.
If the Commission determines that such goals are not reasonably attainable, the Commission may notify plaintiffs' counsel and the Court and will submit a proposed revision of such goals. If plaintiffs' counsel questions the Commission's good faith efforts to meet its goals, he/she shall notify the Commission within fifteen (15) days of receipt of such advice or of reports required by this Stipulation. In either event the parties shall endeavor to resolve their differences within the next thirty (30) days. If the parties are unable to resolve their differences within that time, either party may raise the matter in these proceedings within fifteen (15) days thereafter.
A. ATTORNEYS AND LAW CLERKS4a
At least 17 percent of all job offers to new attorneys or law clerks in fiscal year 1979 shall be to minorities. For any succeeding reporting year it shall be the Commission's goal that offers made to minority applicants for positions as attorneys or law clerks shall be in a proportion equalling or exceeding 165 percent of the proportion of graduates from ABA approved law schools for the preceding year who are minorities unless for the preceding reporting year the proportion of all Commission attorneys and law clerks who are minorities is more than 90 percent of said proportion of minority graduates in the preceding reporting year. If for any year the rate of minoirty acceptances of offers should be more than 15 percentage minoirty acceptances of offers should be more than 15 percentage points below the non-minority acceptance rate, the Commission shall notify plaintiffs' counsel and consult with them about what steps, if any, should be taken.
B. ECONOMISTS, ACCOUNTANTS, CONSUMER PROTECTION SPECIALISTS, RESEARCH ANALYSTS AND COMPUTER SPECIALITS
1. The Commission shall, at the beginning of the 1978-79 academic year, contact the department of economics at each college or university attended by current Commission economists, to seek assistance in locating qualified minority applicants for positions as economists. Each minority individual identified shall be contacted by letter to ascertain their interest in being considered for employment by the Commission. The Commission will attempt to interview any interested minority applicant identified, and will make all reasonable efforts to interview minority applicants who attend the annual meetings of either the Southern Economics Association or the American Economics Association. Within 30 days of the Court's approval of the Stipulation, the Commission will contact the National Urban League and the National Economics Association to seek assistance in identifying minority economists.The Commission will contact each individual identified to ascertain his/her interest in being considered for employment at the Commission. The results of these efforts shall be reported to plaintiffs' counsel by the Commission and they shall confer to decide if a goal is appropriate.
2. Should the minority proportion of economists, accountants, consumer protection specialists, research analysts, and computer specialists, employed by the Commission at the end of a reporting period under Paragraph X have declined by more than 20 percent from the proportions existing as of January 10, 1978, and if that decline has continued or continues for more than three months, the Commission shall notify plaintiffs' counsel and they shall confer about what goal or goals would be appropriate.
VI. RECRUITMENT AND HIRING
1. Within sixty (60) days of the Court's approval of this Stipulation, to the end of assuring that such criteria are objective and job-related insofar as practicable, the Commission, with the advice and assistance of plaintiffs' counsel, will retain an independent third party, acceptable to plaintiffs' counsel who is experienced in conducting validation studies on hiring and promotion criteria and procedures, to reexamine Commission hiring and promotion criteria and procedures with regard to attorneys, economists, accountants, consumer protection specialists, research analysts and computer specialists and determine the validity of such criteria and procedures, and to propose additional appropriate criteria and procedures, if any. The results of the study will be reported to the Administrator, the Executive Director of the Commission and plaintiffs' counsel within one hundred and eighty (180) days from being retained. Any criterion and/or procedure proposed to be used in the future will be set forth along with the justification for its use in terms of job performance. If plaintiffs' counsel does not concur with the expert's conclusions, he or she shall inform the Administrator. If the expert concludes, and the Administrator concurs, after considering the views of the plaintiffs' counsel, that a particular criterion bears no substantial relationship to job performance, that criterion will no longer be used as a standard for hiring and/or promotions unless its use is required by applicable laws or regulations, in which event the Commission, will communicate the conclusions of the expert and the Administrator to the Court. If the Administrator does not concur with any of the expert's conclusions, he or she shall inform plaintiffs' counsel, setting forth his reasons in writing, and plaintiffs' counsel shall have the opportunity to request the Administrator to reconsider his or her nonconcurrence, in which event the Administrator shall set forth in writing any additional reasons for his or her nonconcurrence. Plaintiffs retain such rights as they may otherwise have to petition the Court should they object to the Administrator's decisions on hiring and/or promotion criteria.
2. The Commission will delete the Law School Admissions Test (LSAT) inquiry from the attorney application form. Pending receipt of the study provided for in subparagraph 1, the Commission will instruct all persons responsible for hiring and promoting Commission attorneys and law clerks not to use the LSAT as a criterion for hiring and/or promotion decisions.
3. Pending receipt of the study provided for in subparagraph 1, the Commission will continue to attempt to identify minority and other law students who may not satisfy all traditional hiring criteria, and to observe them in the workplace by hiring them for part time or other temporary employment (e.g., the current Summer Legal Intern Program) with the goal of hiring them for full time employment upon graduation if warranted by their actual performance.
4. Each interviewer for the Commission will be given training in Equal Employment Opportunity policies and in interviewing techniques by an individual or organization trained in these matters and possessing special expertise regarding the interviewing of minority individuals.
5. All recruitment programs for individuals entering at the GS-9 level or above will be designed to increase minority participation in all essential recruitment processes.
6. The Administrator shall be provided with the resumes and/or applications of all known minority applicants for positions GS-9 and above. Any applicants whom the Administrator designates will be afforded an interview with a Commission recruitment interveewer.
7. Any application which the Administrator designates will be reviewed personally by the appropriate Bureau or Office head or his designee.If the Bureau or Office head or his designee determines not to extend an offer to such applicant, the head or his designee shall set forth the reasons for so determining in a memorandum to the Administrator.
8. In an effort to ensure to the extent reasonably possible that qualified candidates become aware of employment opportunities at the Commission, the Commission will make special efforts to disseminate information about the Commission to minority law students, attorneys, and economists to stimulate their interest in employment opportunities at the Commission. In particular, the Commission will take appropriate steps to ensure that notice of openings for experienced attorneys be more widely disseminated. The Commission shall inform plaintiffs' counsel annually of what steps it has taken pursuant to this paragraph and how these steps differ from and/or supplement previous Commission procedures.
9. After consultation with plaintiffs' counsel, the Commission shall revise brochures and other materials distributed to law schools by and about the Commission to state that the Commission devotes special attention to the recruitment of minority applicants.
VII. PROMOTION AND TRAINING OPPORTUNITIES
1. Each individual who supervises three or more employees at the GS-9 or higher level concurrently will be required to take a course in Equal Employment Opportunity policies within nine months of the Court's approval of this Stipulation. The content, length, and (instructors) of such course shall be determined with the advice and assistance of plaintiff's counsel. Thereafter, any individual who becomes the supervisor of three or more employees at the GS-9 or higher level concurrently will be required to take such a course within one year after assuming the responsibility for supervising a third GS-9 or higher level employee.
2. The Executive Director shall issue, within six months of the expert's study under Section VI(2), uniform criteria, consistent with any applicable criteria validated and approved by the expert and the Administrator pursuant to Section VI(2), for promotion of attorneys, economists, and accountants. Each Bureau and Office head shall issue, within sixty (60) days thereafter, an interpretive guide to explain how such criteria apply to the particular operations of that Bureau or Office.
3. The Commission will establish a data retrieval system by which the average time-in-grade for those eligible for promotion5a at each General Schedule level in each bureau and office may be ascertained. This information will be made available, in aggregate form, to all Commission employees and plaintiffs' counsel upon request. The Commission shall also provide plaintiffs' counsel with information (but not the names of the employees involved) concerning the location, grade and position of each minority employee eligible for promotion who has been in grade twenty-five percent longer than the average time-in-grade for non-minority employees in the same grade, position and bureau or office.
4. The Commission shall insure that minority employees are given work opportunities and assignments consistent with their abilities which provide them with the experience necessary for promotion. Each Assistant Director or Assistant General Counsel will assure that each employee is given an opportunity to satisfy the promotion criteria and guides to be issued pursuant to Section VII(2).
5. Every employee evaluation will contain a specification of major assignments, an analysis of the employee's performance in each, and a correlation with the promotion criteria, the employee's time-in-grade and the average time-in-grade for all employees eligible for promotion in his/her bureau or office for the same grade and position. A written training and development plan, prepared by the employee's supervisor, will be supplied upon request to each employee at GS-9 or above.
6. All supervisors will be specifically evaluated each year on their efforts to promote equal employment opportunities in hiring, promotions, and work assignments.
7. The Commission will seek to increase minority participation in all training programs. To that end, the Commission will promptly seek from the Civil Service Commission permission to open the Executive Development Program to persons at the GS-12 level.
8. To insure that both current and prospective minority employees are fully utilized and fairly considered for promotion, and minority employee who is eligible for promotion and has not been promoted by the time he/she reaches the average time-in-grade for all non-minority employees eligible for promotion in his/her office or bureau for the same grade and position, may ask to have his/her records reviewed by the Administrator, within thirty (30) days of reaching that average time-in-grade, to insure that the employee received the assignments and/or training required under this Stipulation and has been properly considered for promotion under applicable criteria. The Administrator shall make a determination whether the requirements of this Stipulation have been met and whether he believes that promotion is justified, and shall report his conclusions to the employee, to the head of the office or bureau, and to plaintiffs' counsel. The Administrator's notice shall advise the employee of his or her rights under applicable laws or regulations concerning racial discrimination in employment.
9. If, for any reporting year under Section X of this Stipulation, (a) the average time in-grade of all minority employees in the Commission's regional offices who are eligible for promotion exceeds by twenty-five percent the average time in-grade for all non-minority employees eligible for promotion in the same grades and positions in such offices, or (b) the average time in-grade of all minority employees in the bureaus and offices at the Commission's headquarters who are eligible for promotion exceeds by twenty-five percent the average time in-grade for all non-minority employees eligible for promotion in the same grades and positions in such headquarters bureaus and offices, the Administrator will review the records of all minority employees eligible for promotion (in the regional offices or at headquarters, as appropriate) at the grade and position involved who have been in grade twenty-five percent longer than the non-minority average to insure that the employees received the assignments and/or training required under this Stipulation and have been properly considered for promotion under the applicable procedures. The Administrator shall report his conclusions concerning whether the requirements of this Stipulation have been met and whether or not promotions of such employees are justified, with specific reasons, to the heads of the bureaus or offices involved and to plaintiffs' counsel. Upon request by plaintiffs' counsel, the Administrator shall also conduct such a review and make such a report with respect to particular minority employees eligible for promotion who have been in grade twenty-five percent longer than the non-minority average for employees eligible for promotion in the same grade and position in the same bureau or office.
VIII. INDIVIDUAL RELIEF
1. Any individual filing a claim pursuant to paragraphs 2-4 below shall do so in the form of a sworn written statement setting forth with particularity any facts which he/she believes support his/her claim of racial discrimination. The statement shall set forth the specific manner in which the claimant feels he/she has been discriminated against (e.g. failure to hire or promote, wrongful termination, resignation caused by discrimination). All claimants shall indicate the official or officials responsible for the alleged discrimination, if known, and when and where it occurred. Rejected applicants and former employees shall indicate their qualifications for the position or promotion. If the claimant is aware of documents or witnesses with information relating to the claim, they should be identified.
2. Any individual class member who feels he/she has been discriminated against within the period commencing two years preceding the filing of the complaint in this action because of his/her race, may submit to the Administrator a sworn claim within ninety (90) days of the date of the Court's approval of this Stipulation. The Administrator shall then have thirty (30) days from the filing of the claim to attempt to conciliate the claim. If agreement is reached, the parties will file with the Court a stipulation of dismissal.
3. If, after the period for conciliation, no resolution is reached under subparagraph 2 of this section, the Administrator shall forward the claim file to a Magistrate of this Court who will review the claim and other relevant evidence.
4. If the Magistrate finds the claim has been substantiated, the claimant may be awarded appropriate relief, which may include, inter alia, an offer of employment or promotion or reinstatement, if positions are available, and back pay for the period of time beginning when it is determined the discrimination arose, in accordance with the provisions of applicable laws and regulations. In the case of claims concerning discrimination in promotion, if the claimant shows that he/she was in grade one-third longer (for GS-9 to GS-12 employees) or one-fourth longer (for GS-13 to GS-15 employees) or nine months longer (whichever is less) than the average time-in-grade for all non-minority employees then eligible for promotion at the same grade and position in the bureau or office in which he/she was employed, the Commission shall have the burden of showing a legitimate, non-discriminatory reason why the individual was not promoted, by such evidence as would be required in a case under Title VII in which discrimination has been found.
5. The remedy afforded in the preceding paragraphs is exclusive. It is the understanding of the parties that any individual claim referred to the Magistrate is done with the consent of the parties and that the decision of the Magistrate will provide a final resolution of the claim without any right of appeal.
6. Each claimant shall be entitled to be assisted or represented by plaintiffs' counsel in preparation of his/her claim and in any proceedings before the Administrator and/or Magistrate. However, it is the mutual contemplation of the parties that such proceedings shall insofar as possible be informal in nature and that the parties would ordinarily need not be represented by counsel. The Administrator and/or the Magistrate may provisionally award to a prevailing claimant, reasonable attorney's fees, costs and expenses for services necessarily incurred, subject to court approval pursuant to Section XII of this Stipulation and the limitations therein.
IX. NOTICE TO CLASS
Following the Court's provisional approval of this Stipulation and Order appropriate notice of their terms was given to class members as ordered by the Court. Class members have been given a reasonable opportunity to object thereto at a hearing held on March 27, 1978. Upon further consideration, the Court finally concludes and determines that the Stipulation and Order provide a fair and equitable disposition of this matter for all members of the class.
Beginning on December 31, 1978, and by December 31 for each year thereafter until December 31, 1982, the Commission shall file reports with plaintiffs' counsel and the Court covering the preceding fiscal year. The Administrator will be primarily responsible for the preparation of these reports. The reports shall list separately for each group of employees in the occupations covered by this Stipulation the following information insofar as such information can reasonably be ascertained.
1. New Hires
a. Total number of applicants for positions.
b. Total number of applicants interviewed for positions.
c. Total number of minorities interviewed for positions.
d.Total number of offers extended to applicants for positions.*
e. Total number of offers extended to minority applicants for positions.*
f. Total number of offers accepted by applicants for positions.*
g. Total number of offers accepted by minority applicants for positions.*
a. Total number of promotions.*
b. Total number of minority promotions.*
c. Total number of employees at each GS level (by division, bureau or office and by occupation).
d. Total number of minority employees at each GS level (by division, bureau or office and by occupation).
a. Total number of employees departing.*
b. Total number of minority employees departing.*
c. For departing minority employees, information about whether the departures were voluntary or involuntary and the reasons given, which does not reflect the identity of any individual.
1. The plaintiffs and all class members hereby waive, release and covenant not to sue the Commission with respect to the matters which were alleged as charges in this suit involving acts or omissions occurring before the date of the Court's approval of this Stipulation, subject to the performance by defendant of the terms of this Stipulation.
2. This Stipulation is in full and complete disposition of allegations in the complaint and concludes all charges of race discrimination by any members of the class which were made or pending against the Commission either administratively or in court on or before the Court's approval of this Stipulation.
3. The Commission will maintain resumes and correspondence with applicants for positions covered by this Stipulation for two years after they are received.
4. All information furnished to plaintiffs' counsel is furnished for the exclusive use of plaintiffs' counsel for the purpose of compliance review and is confidential; provided that such reports may be used as evidence in a proceeding to enforce the terms of this Stipulation.
5. The Commission will inquire of departing minority employees to determine if separations are due, or believed to be due, in part to the lack of equal employment opportunity and to determine if and how management practices can be improved.
6. Within thirty (30) days of court approval of this Stipulation, the Chairman of the Commission shall inform each of his fellow Commissioners of the Stipulation in writing and shall encourage them to apply the spirit of this Stipulation in their hiring and promotion decisions. The Chairman will also provide his fellow Commissioners with copies of the annual reports required by this Stipulation.
7. The time periods referred to in this Stipulation may be altered upon agreement of plaintiffs' counsel and counsel for the Commission.
XI. COSTS AND ATTORNEY FEES
The Commission agrees to pay reasonable attorneys' fees, costs and expenses in amounts approved by the Court for work required to be performed by plaintiffs' attorneys (other than those attorneys who, while rendering the services, are employed by the government) in monitoring compliance with this Stipulation during the five-year period of its effectiveness (including services performed in connection with successful individual claims pursuant to Section VIII of this Stipulation, but not including any attorney fees, cost or expenses from an unsuccessful challenge to any action by the Commission), subject to a maximum of $7,000 in the first year and $3,000 in each of the four succeeding years. Upon a showing of extraordinary and unforeseeable circumstances, plaintiffs' counsel may apply to the Court for an award of attorneys fees, costs and expenses in excess of the foregoing maximums. Within thirty (30) days after the end of each year, plaintiffs' counsel shall submit to the Court an application for an award covering the preceding year, and they shall maintain detailed and specific records of the services rendered.$5XII. JURISDICTION
The Court hereby retains jurisdiction of this cause for a period of five years for the purpose of issuing additional orders or decrees needed to effectuate, clarify or enforce the full purpose and intent of this Stipulation. In the event that the Commission's ability or authority to carry out the provisions of this Stipulation is drawn into question by subsequent laws or court decisions, either party shall have the right on due notice to petition the Court for relief from or modification of the terms of this Stipulation.