The opinion of the court was delivered by: The Honorable Emmet G. Sullivan United States District Court Judge
This Consent Decree sets forth the full and final terms by which Named Plaintiffs, on behalf of themselves and members of the Class defined herein, and Defendant National Railroad Passenger Corporation ("Amtrak"), have settled and resolved all claims or potential claims between them relating to Management positions, including all claims of any alleged race discrimination against African American Management employees and African American applicants for Management positions, as those terms will be defined herein, through or as a result of any alleged discriminatory purpose, pattern or practice, or adverse impact of Amtrak's practices and policies with respect to hiring, compensation, training, performance appraisals, promotions, transfers, discipline, termination, the toleration of a hostile working environment, and other personnel practices or decisions. This Decree does not encompass claims relating to or arising from employment in non-Management positions, other than non-Management employee claims relating to application for promotion to Management positions, and Management employee claims relating to demotion to non-Management positions. Amtrak has voluntarily entered into this Consent Decree to address concerns raised by its diverse workforce, to avoid protracted and costly litigation, and to focus its corporate resources on serving Amtrak's customers and operating a first-class national rail passenger system.
On August 20, 1998, twelve Black Amtrak employees who are or have been employed in Management positions at Amtrak, or were rejected for employment in Management positions at times when they were not employed by Amtrak, or were rejected for employment in Management positions at times when they were employed by Amtrak in non-Management positions, and one Caucasian Management employee who allegedly was retaliated against for opposing discrimination against African Americans, filed a Complaint in this Court. The Plaintiffs asserted claims against Amtrak for race discrimination in hiring, job assignments, promotions, performance appraisals, discipline, compensation, and training. The Complaint further alleged a pattern and practice of discrimination by Amtrak and tolerance of a racially hostile working environment. The Plaintiffs asserted claims on behalf of themselves and putatively on behalf of similarly situated current and former employees and rejected Internal and External Applicants for Management positions. On November 20, 1998, the Plaintiffs filed an Amended Complaint, which added sixteen additional Plaintiffs and putative Class representatives. The Plaintiffs' claims were brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. § 1981. Amtrak filed an answer to the Complaint denying the allegations and specifically denying any violation of law.
The Parties voluntarily entered into mediation in November 1998 in an effort to address, outside of the courtroom, the concerns raised by Plaintiffs and to avoid litigation costs. While formal discovery has not been completed, the Parties have taken sufficient discovery, and have voluntarily exchanged sufficient information, to assess the relative merits of the systemic claims of the Plaintiffs and the putative Class, and of Amtrak's defenses. After several months of mediation and negotiation, the Parties reached an agreement-in-principle on July 1, 1999, the terms of which are incorporated in and superseded by this Consent Decree.
III. GENERAL TERMS OF THE DECREE
For purposes of this Consent Decree (interchangeably the "Decree") and all exhibits hereto, the capitalized terms in such documents shall have the meanings set forth below. All terms defined in the singular shall have the same meaning when used in the plural, and all terms defined in the plural shall have the same meaning when used in the singular.
1. "Amtrak" is a corporation incorporated under the laws of the District of Columbia engaged in the transportation of passengers by railroad and related businesses as defined by 45 U.S.C. §501 et seq. Any references to "Amtrak" shall include the National Railroad Passenger Corporation, its past and present directors, officers, agents, employees, and other representatives.
2. "Named Plaintiffs," "Class Representatives," or "Plaintiffs" mean those twenty-nine individuals who were named as Plaintiffs in the First Amended Complaint. The names of all of the Named Plaintiffs in this litigation are set forth in Exhibit A.
3. "Parties" means the Named Plaintiffs and Amtrak.
4. "Black" shall be defined as in Appendix 4 of the current Instruction Booklet for completion of Standard Form 100, Employer Information Report EEO-1. The terms "Black" and "African American" are used interchangeably, and for purposes of this Decree, shall include Black aliens, lawfully able to work for Amtrak but who are not of American citizenry or descent.
5. The phrases "applied to" Amtrak or "applied for," or "applicant for" employment at Amtrak means expressed interest, or a person who expressed interest, in employment at Amtrak through participation in a job fair, submission of an application form or resume, participation in an interview, or any other contact with Amtrak concerning possible or potential employment. "Internal Applicants" means applicants who were not selected for employment in Management positions at times when they were employed by Amtrak in non-Management positions. "External Applicants" means applicants who were not selected for employment by Amtrak in Management positions at times when they were not employed by Amtrak.
6. "Lead Counsel" for purposes of this Decree means Michael Lieder, Maia Caplan, and other attorneys of the law firm of Sprenger & Lang, 1614 Twentieth Street, N.W., Washington, D.C. 20009. "Class Counsel" refers to the above Lead Counsel as well as Roderic V.O. Boggs, Avis Buchanan, Susan Huhta, and other attorneys of the Washington Lawyers' Committee on Civil Rights & Urban Affairs, 11 Dupont Circle, N.W., Suite 400, Washington, D.C. 20036; Ozell Hudson, Jr., Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association, 294 Washington Street, Suite 940, Boston, MA 02108; and Andrew A. Rainer, Shapiro, Haber & Urmy LLP, 75 State Street, Boston, MA 02109.
7. "Management employees" or "Management positions" means employees or positions not subject to a collective bargaining agreement ("CBA"), and not on the Amtrak Management Committee. Conversely, "non-Management positions" or "non-Management employees" means positions or employees covered by a CBA.
8. "Amtrak's Counsel" means the law firm of Morgan, Lewis & Bockius LLP, 1800 M Street, N.W., Washington, D.C. 20036, including attorneys Thomas E. Reinert, Jr. and Grace E. Speights.
9. "Class Members" or "Class," or any variation of such term means all members of the Class defined in Part III(D) of this Decree.
10. "District Court" or "Court" means the United States District Court for the District of Columbia.
11. "Payee" means attorneys (including former attorneys) for any of the Plaintiffs or Class Members, and all experts, consultants and others associated with or retained by Plaintiffs or such attorneys, including Class Counsel. Payments to Payees shall be subject to, and limited by, Section V of the Decree.
12. The "Non-Injunctive Effective Date" for the provisions of this Decree relating to Job Relief or the Fund shall refer to the date on which the Court has finally approved, signed, and entered this Decree and the time for appeal has run without an appeal being filed or, if an appeal is filed, the final resolution of that appeal (including any requests for rehearing en banc, petitions for certiorari, or appellate review). The "Injunctive Effective Date" for the remaining provisions of this Decree relating to injunctive relief shall refer to January 1, 2000, or the date by which the Court has finally approved, signed, and entered this Decree and the time for appeal has run without an appeal being filed or, if an appeal is filed, the final resolution of that appeal (including any requests for rehearing, rehearing en banc, petitions for certiorari, or appellate review), whichever is later.
13. "Settlement Fund" or "Fund" means the qualified settlement fund created by the deposit, in the installments and at the times agreed to by the Parties, of $8 million in principal by Amtrak, the purpose and administration of which are governed by Part V of this Decree.
14. "EEO Office" or "EEO Resolution Unit" means Amtrak's internal Equal Employment Opportunity unit in the Department of Business Diversity and Strategic Initiatives ("Business Diversity"), while the term "EEO" shall refer to equal employment opportunity, as that phrase is understood legally.
15. "Claim Resolution Process" or "CP" means the procedures for resolution of Eligible Claims as set forth in Part V of the Consent Decree.
16. "Claimant" means any person who is eligible to make, and who has made, a claim in the Claim Resolution Process as set forth in Part V(B) of the Consent Decree.
17. "Class Claim" means any individual or class-wide race discrimination claim, administrative charge, demand, complaint, right, and cause of action of any kind, known or unknown, by a Class Representative or Class Member against Amtrak for monetary or equitable relief or for attorney's fees, arising from any events, acts, omissions, policies, practices, procedures, conditions, or occurrences concerning employment in Management positions with Amtrak or applications for Management positions with Amtrak at any time on or after January 1, 1995, but no later than September 30, 1999, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981 et seq., or any other federal, state, District of Columbia or local statute, regulation, rule, order, ordinance or other authority of any nature prohibiting racial discrimination in employment. Class Claim refers to any claims or other cause of action described above brought in an arbitral, judicial or other forum of whatsoever kind or nature.
18. "Mandatory Joinder Claim" means any claim arising out of the same occurrence, event, or nucleus of facts as any Class Claim.
19. "Eligible Claims" means all Class Claims and Mandatory Joinder Claims.
20. "Job Relief Process" means the procedures under Part VII of this Decree for resolution of Job Relief Claims.
21. "Eligible Job Claims" means all claims that meet the eligibility requirements for processing under Part VII of the Decree.
22. "Job Relief Election Form" means the form used to designate an affirmative election to participate in the Job Relief Process mailed by the Job Claimant to Class Counsel.
23. "Job Claimant" means any person who is eligible and selects to make, and has made, a claim in the Job Relief Process under Part VII of the Decree.
24. "Administrator" or "Trustee" means the persons designated by Plaintiffs and Amtrak to effectuate the Settlement terms, concerning the satisfaction and resolution of all Claimants' claims pursuant to the Claim Resolution Process set forth in Part V(B) of this Decree; receiving and processing information from Claimants pertaining to their claims; investing, allocating, and distributing the Fund; and in general supervising the administration of the Settlement Fund in accordance with the Decree. The Parties have agreed that Michael Lieder, Esquire and Lawrence Schaefer, Esquire of Sprenger & Lang shall be the Administrators and Trustees of the Settlement Fund.
25. "Claim Form" means the written description of Claimant's Claims served by a Claimant on the Administrator to initiate the Claim Resolution Process.
26. "Claim Form Submission Date" or "Job Relief Election Form Date" means the post-marked date of the respective form that has been mailed to the Administrator or Class Counsel, respectively.
27. "Reduction in Force" or "RIF" means the removal of an employee or group of employees from a position or positions, as the result of the elimination of a position or positions or the reorganization of positions, and shall not include individual employment actions (including terminations, demotions, or transfers) because of discipline or poor performance or other reasons related to the individual employee, in which Amtrak intends to treat the position as vacant and place another individual in substantially the same position.
28. "Statistically Significant" disparity shall mean a disparity measured by at least two standard deviations.
B. Jurisdiction and Venue
The Parties agree that this Court has jurisdiction over the Parties and the subject matter of this action, and that venue is proper. This Court shall retain jurisdiction of this action for the duration of the Decree solely for the purpose of entering all orders, judgments and Decrees authorized hereunder that may be necessary to implement and enforce the relief provided herein.
C. Effective Date and Term of Decree
This Decree and the agreements contained herein are effective as of the Injunctive and Non-Injunctive Effective Dates, as defined in Part III(A), although Amtrak has already implemented or begun to implement many of the items of equitable relief provided. The Decree and the agreements contained in it shall continue to be effective and binding on the Parties and their agents and successors for a four-year period from the Injunctive Effective Date, unless extended or terminated earlier pursuant to the terms of Parts IV.A.1 or IX. The releases and bars on claims shall survive the Decree.
D. Persons Covered By Decree
Pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3), the Parties stipulate to the certification of the following Class composed of all Named Plaintiffs and black persons who, at any time between January 1, 1995 and September 30, 1999:
Have been employed by Amtrak in positions, not on the Amtrak Management Committee, and not subject to a collective bargaining agreement ("CBA"), ("Management positions"); and/or have applied and been rejected by Amtrak for Management positions, including Internal Applicants and External Applicants.
If this Decree is approved by the Court, all persons within the Class are bound by its terms, except that Class Members, other than Named Plaintiffs, who have elected to opt out of the Class and the settlement described herein following and on Court approval. Class Members who elect to opt out must do so in writing no later than the date specified in the notice provisions contained herein. Elections to opt out must be submitted pursuant to the procedure set forth in the Notice and must be approved by the Court. If more than ten (10) Class Members are permitted to opt out of this Decree, Amtrak may withdraw from this Decree and void this settlement. Amtrak shall have fifteen (15) days from the day that it receives notice that more than 10 Class Members have been permitted to opt out, and of the identity of such individuals, to withdraw from the Decree and to void the settlement.
Amtrak expressly denies any wrongdoing or liability whatsoever. This Decree represents the compromise of disputed claims. It reflects the Parties' recognition that litigation of these claims would severely burden all concerned and require a massive commitment of time, resources, and money. The Decree does not constitute, and is not intended to constitute, and shall not under any circumstances be deemed to constitute an admission by either Party as to the merits, validity, or accuracy, or lack thereof, of any of the Plaintiffs' allegations or claims in this case. Neither this Court nor any other court has made any findings or expressed any opinion concerning the merits, validity or accuracy of any of the allegations or claims alleged in this action.
Nothing in or related to this Consent Decree, including any action taken to implement it or any statements, discussions, communications, or any materials prepared, exchanged, issued or used during the course of the mediation or negotiations leading up to the Consent Decree may be introduced or used or admitted in any way, in any other judicial, arbitral, administrative, investigative or other proceeding of any kind or nature whatsoever as evidence of discrimination, retaliation, or any violation of Title VII, Section 1981, the common law of any jurisdiction, or any other federal, state or local law, statute, ordinance, regulation, rule or executive order, or any obligation or duty at law or in equity. Documents, data, and information exchanged by the Parties since the inception of the lawsuit may be used in this case solely with respect to enforcement of the Decree, in the event necessary, and/or in the Job Relief Process, as provided in Part XI below.
In the event that Final Approval of this Decree is not obtained, nothing herein shall be deemed to waive any of Amtrak's objections and defenses, including but not limited to objections to Class certification, and neither this Decree nor the Court's preliminary or provisionally final approval hereof shall be admissible in any court regarding the propriety of Class certification or regarding any other issue or subject of this case.
The provisions of this Decree shall resolve finally and forever hereafter any and all Class Claims and Mandatory Joinder Claims as defined in Part III(A) of this Decree, in law or in equity, of the Named Plaintiffs and Class Members, other than persons who have been allowed by the Court to opt out of this Decree, which any of them, their representatives, agents, heirs, assigns, executors, administrators, successors or assigns, may have, may have had, or in the future may have against Amtrak insofar as any claims arise from or relate to events that occurred prior to September 30, 1999. Named Plaintiffs and Class Members shall further be barred from submitting evidence in any proceeding, other than Claim or Job Relief proceedings under this Consent Decree, concerning any Class Claim or Mandatory Joinder Claim, in support of any claim arising after September 30, 1999.
Res judicata shall apply to all Named Plaintiffs and Class Members (except those who have been allowed by the Court to opt out under the provisions of this Decree) with respect to all Class Claims and Mandatory Joinder Claims, which are known or unknown, actual or potential.
As a condition precedent to the receipt of any relief under the terms of this Decree, Named Plaintiffs and Class Members shall, in consideration thereof, execute Amtrak's Release and the Administrators' Release, exactly as they appear in Exhibits B and D, respectively. The Named Plaintiffs and Class Members shall execute Amtrak's Release and the Administrators' Release before receiving any Job Relief provided under the terms of the Decree or monetary payment from the Settlement Fund, whichever comes first; however, in the event a Named Plaintiff or Class Member does not receive monetary and Job Relief simultaneously, the execution of Amtrak's Release and the Administrators' Release at the time the first form of relief is awarded shall not extinguish his or her claim for the other form of relief if he or she is also entitled to such other form of relief under the terms of this Decree.
The Complaint in this action against Amtrak shall be dismissed in its entirety, with prejudice, on the Non-Injunctive Effective Date, pursuant to the Joint Stipulation of Dismissal, attached hereto as Exhibit C. Within three weeks following the Non-Injunctive Effective Date, Class Counsel shall make good faith efforts to secure the prompt withdrawal or dismissal of any other pending lawsuits, appeals, administrative charges or other proceedings with respect to any Class Claims brought against Amtrak by the Named Plaintiffs, any of their other clients, and any Class Members (except those who have been allowed to opt out), that have been identified to Class Counsel by Amtrak.
G. Conflicts/Confidential Information
Due to Class Counsel's continuing representation of the Class, their receipt of confidential information regarding Amtrak during this litigation, and their continuing receipt of such confidential information during the term of the Decree, Class Counsel agree during the term of the Consent Decree not to undertake any representation that would create a conflict of interest or involve the use of Amtrak's confidential information for purposes unrelated to the enforcement of the Decree.
Class Counsel further agree that during the term of the Decree they will not represent any Class Member who is allowed to opt out of the provisions in this Decree, in any litigation against Amtrak which arises out of, or is related to, Class Claims asserted in this case prior to the expiration of the Decree, if such representation would create a conflict of interest.
This provision shall not be interpreted to prohibit Class Counsel's continuing representation in Thornton v. Amtrak, Civil Action No. 98cv00890.
IV. GENERAL INJUNCTIVE MEASURES
The Parties recognize the importance of timely implementation of the injunctive relief provided under this Decree. The schedule set forth in this Decree is the schedule for implementing the injunctive relief, and is based on the Parties' current best estimates of the time required for such implementation. Amtrak will make good faith efforts to meet that schedule. The Parties recognize, however, that notwithstanding Amtrak's good faith efforts, it may become necessary to extend the implementation schedule for some elements of the injunctive relief. Amtrak agrees to provide reasonable advance notice, in no case fewer than 30 days, to Class Counsel in the event that Amtrak is unable to meet any aspect of the implementation schedule, and the Parties agree to cooperate in good faith in seeking to agree on necessary changes. Except with respect to the Compensation Study and the changes in compensation required by Part IV.D, if the Parties are unable to reach agreement and the extension contemplated by Amtrak for action on any item, in conjunction with any prior extensions for that item, exceeds thirty (30) percent of the total time permitted under this Decree for that item, Class Counsel may bring the matter to the Court's attention for resolution pursuant to Section XI(B) of this Decree. In the event that Amtrak does not meet its implementation target dates under this Decree, as extended pursuant to the procedures above, for any such item, the expiration of the Decree for the provisions corresponding to the implementation of such injunctive relief shall be delayed by the identical length of time.
Except with respect to Part IV.D of the Decree, the Parties shall notify the Court of any agreed modification of the schedule set forth herein that exceeds thirty (30) percent of the total time permitted for any item, and of the corresponding extension of the term for the relevant Consent Decree part. The Parties shall not be required to notify the Court of any such modification that is less than thirty (30) percent of the total time permitted under this Decree for implementation of any item.
With respect to the compensation study and required changes in compensation, the above procedures shall not apply. If the target date required under Part IV.D is not met, then on agreement of Class Counsel, not to be unreasonably withheld, an extension shall be granted; however any extension so implemented shall result in an identical extension in the term of Part IV.D of the Decree.
2. Joint Retention of Neutral Expert
Class Counsel and counsel for Amtrak jointly have retained Economic Research Services, Inc. and Joan G. Haworth, Ph.D. of Economic Research Services, Inc. as a Neutral Expert to assist in the implementation of this Decree. This Neutral Expert shall assist the Parties in developing: (1) statistical tests for monitoring compliance with this Decree; and (2) databases necessary for implementing such statistical tests. Amtrak shall be responsible for all fees and expenses relating to the Neutral Expert.
Wherever this Decree provides that Class Counsel shall review the credentials and qualifications of, or be consulted with respect to, an outside consultant that Amtrak intends to retain in connection with the injunctive provisions of this Decree, the following procedures shall govern: (1) Amtrak shall provide Class Counsel with the names and curricula vitae of individuals responding to its request for proposal ("RFP") or otherwise under consideration by Amtrak; (2) Amtrak shall identify its consultant of choice, taking into account suggestions, if any, by Class Counsel, and shall provide Class Counsel with the identity of the selectee and documentation or other information concerning the consultant's qualifications, credentials, and experience; (3) Class Counsel shall review Amtrak's selection and provide any comments concerning the selection to Amtrak within 10 days of receiving such information; (4) Amtrak shall consider the comments of Class Counsel in moving forward with the retention of the outside consultant; and (5) if Class Counsel raises concerns about Amtrak's consultant of choice, and Amtrak, having considered such concerns, decides to proceed with the retention of such consultant, Amtrak shall so notify Class Counsel.
In computing any period of time prescribed or allowed under this Decree, the period of time shall be computed in terms of calendar days unless otherwise specified.
1. Application Forms and Applicant Flow Database
Within 6 months after the Injunctive Effective Date, Amtrak shall revise its existing application form as follows and implement use of the new form. Amtrak will continue to use the Job Opportunity Application Form, or similar form, for Internal Applicants for Management positions. With respect to External Applicants for Management positions, Amtrak will revise its application form to include a portion that requests External Applicants voluntarily to provide information on their race, and will revise the structure of the form as necessary, on consultation with the Neutral Expert, such that the revised form will request information concerning all matters recommended by the Neutral Expert to be included in the applicant flow computerized records.
In conjunction with the Neutral Expert, within nine (9) months after the Injunctive Effective Date, Amtrak shall develop and implement a computerized applicant flow system for recording the demographic information received from Internal and External Applicants for purposes of tracking the job placement process for Management positions at Amtrak and for monitoring purposes as described in Section IV(B)(3) below.
Within 6 months after the Injunctive Effective Date, Amtrak shall develop and implement standardized interview procedures and assessment forms to be used for employment interviews for Management positions as follows.
Amtrak shall develop standardized questions to be used for all applicants for a specific Management position. Interviews shall be conducted using the same questions for all candidates for the same position, insofar as feasible. The use of standardized questions shall not preclude reasonable follow-up questions by the interviewer. Standardized questions shall not be required for parallel positions across Amtrak's Strategic Business Units ("SBUs") or locations, or for parallel positions filled at different times.
Amtrak shall develop standardized interview assessment forms to be used for employment interviews for Management positions. The interview panels or individuals who interview applicants for a specific Management position shall record their assessments on the standardized interview assessment form.
Amtrak shall interview at least five (5) qualified Internal Applicants, or shall interview all qualified Internal Applicants if fewer than five (5) qualified Internal Applicants apply, for each Management position that Amtrak seeks to fill. Amtrak shall document in writing the criteria for deciding which of the qualified Internal Applicants to interview, and the rationale for selecting them. Such documentation shall be maintained by Amtrak's Human Resources Department. The requirement that at least five (5) qualified Internal Applicants be interviewed for each Management position that Amtrak seeks to fill shall not preclude Amtrak from also interviewing qualified External Applicants, and considering both Internal and External Applicants as part of the same applicant pool.
If the entire applicant pool for a particular Management position is fewer than 100, Amtrak shall notify all applicants not selected for such position of that fact within a reasonable period of time after the hiring decision has been made. All applicants who interview for a Management position, but who are not selected shall be notified of that fact within a reasonable period of time regardless of the number of applicants interviewed. Amtrak shall maintain records of applications, interviews, and selections for Management positions for a minimum of 2 years.
3. Monitoring of Job Placements
Amtrak shall record in computer-readable format the race of applicants selected for interviews for Management positions that it seeks to fill, and the race of the persons ultimately selected to fill such positions, to the extent that applicants provide information concerning their race to Amtrak. Amtrak shall commence recording this data on or before July 1, 2000. Beginning with the six-month period that begins on July 1, 2000, Amtrak shall review this placement data every six months to determine whether there is a Statistically Significant disparity between the offer rate for qualified white applicants and the offer rate for qualified African American applicants, or the rate at which qualified African Americans are selected for interviews and the rate at which qualified whites are selected for interviews, controlling for appropriate factors. The Neutral Expert shall assist the Parties in determining the factors to be controlled for, and the formula to be used to determine if Statistically Significant disparities exist.
If, according to the formula devised by the Neutral Expert, Amtrak finds that its interview selection process has Statistically Significant adverse impact on African Americans during the previous six-month period, and if its hiring process has a Statistically Significant adverse impact on African Americans, then for Management positions that Amtrak seeks to fill during at least the next two consecutive six-month periods, Amtrak will ensure that the percentage of African Americans among those interviewed equals or exceeds the percentage of African Americans in the qualified applicant pool until there is no Statistically Significant disparity between the rate at which African Americans are offered jobs and their presence in the qualified African American pool.
C. Reductions in Force and Priority Consideration
During the term of this Decree, if Amtrak intends to implement a reduction in force ("RIF"), Amtrak will perform an analysis of the RIF to determine if it will have a disparate impact on African American Management employees. This analysis shall be provided to Class Counsel at least 30 days prior to Amtrak's issuance of the notice of RIF. This disparate impact analysis shall be distinct from any analysis that is performed by the Amtrak Law Department in the course of its normal duties.
The analysis shall consist of a comparison of the percentage of African American Management employees whose jobs are scheduled for elimination by the RIF, to the percentage of African American Management employees in the pool of employees potentially affected by the RIF. If the percentage of African American Management employees in the group of employees whose jobs are scheduled for elimination by the RIF exceeds the percentage of African American Management employees in the pool of employees potentially affected by the RIF (as defined by organizational unit and level), then the following shall apply:
1. Amtrak shall prepare a written justification for the racially disparate impact of the RIF, which shall be provided to Class Counsel at least 25 days prior to implementation of the RIF;
2. For a period of six months from the date of the notice of the RIF, African American Management employees whose jobs were eliminated as a result of the RIF, and who meet the criteria set forth in Paragraph 2(b) below, shall receive "priority consideration" for posted Management positions for which they apply.
a. "Priority consideration" shall mean that African American Management employees whose jobs were eliminated as a result of the RIF shall be interviewed for any Management position for which that person applies, and for which that person meets the minimum job qualifications.
b. African American Management employees whose jobs were eliminated as a result of the RIF shall qualify for "priority consideration" as defined above only if:
(1) they have worked for Amtrak for at least one year prior to the date of the notice of the RIF;
(2) they have not received an unsatisfactory overall score (or the functional equivalent) on either of their two most recent performance appraisals (except that if they have not been employed at Amtrak long enough to have received two performance appraisal ratings, any unsatisfactory rating shall preclude the employee from "priority consideration"); and
(3) within the past two years they have not received any discipline more severe than a written warning.
3. Four months from the date of the notice of RIF, Amtrak shall conduct an analysis of the rates at which African American Management employees whose jobs were eliminated by the RIF were offered jobs and the rate at which white Management employees whose jobs were eliminated by the same RIF were offered jobs. This analysis shall be a simple percentage analysis based on a review of employees in "comparable positions." "Comparable positions" shall be defined based on pay rates at Amtrak, which are currently defined in terms of "bands" and "zones." An offer for a non-Management position within Amtrak following a RIF shall not be considered an offer for a replacement job for purposes of the racial impact analysis conducted under this provision. If the analysis conducted pursuant to this provision shows that the offer rate for white Management employees whose jobs were eliminated by the RIF exceeds the offer rate for African American Management employees whose jobs were eliminated by the RIF, then the African American Management employees whose jobs were eliminated as a result of the RIF shall receive "enhanced priority consideration" for Management positions for which they apply during the 6 to 12 month period following the date of the notice of the RIF.
a. "Enhanced priority consideration" shall mean that African American Management employees whose jobs were eliminated by the RIF shall continue to receive "priority consideration" with respect to interviews for Management positions as described in Section 2 (a)(c) above and, in addition, they shall be selected for the Management position for which they interviewed if: (1) they are the best qualified African American applicant; and (2) no "clearly superior" white applicant is selected for the position.
b. "Clearly superior" shall mean that Amtrak can demonstrate that the successful white candidate's overall qualifications significantly exceed those of the African American candidate entitled to enhanced priority consideration based on a comparison of reasonable and objective selection factors for the specific position, including relevant experience, work history, relevant education, relevant expertise, and additional relevant qualifications beyond the minimal qualifications for the position.
Amtrak shall allow Class Counsel to have access to all non-privileged documentation relating to Amtrak's final selection of the positions that will be eliminated as a result of a RIF. Class Counsel may challenge a RIF in advance of the implementation of the RIF on the ground that it will have a disparate impact on African American Management employees, or on the ground that Amtrak's selection of the positions to be eliminated by the RIF is racially motivated, by referring the matter in writing to the Court within 10 days of receiving Amtrak's disparate impact analysis referenced above. Amtrak shall have 10 days to file a response to Class Counsel's submission. If Class Counsel's challenge to the RIF is upheld, Amtrak shall not implement the RIF as planned.
Within 60 days of the completion of the revisions to the job descriptions, as set forth in Section IV(E) of this Decree, Amtrak shall hire an outside consultant to perform a study of the salaries of all employees in Management positions, which shall consider, if appropriate, the experience, prior salary, abilities, performance appraisals, geographic location, SBU, and longevity of each employee, and other generally accepted factors relied on by compensation specialists. The study shall also consider market rates of compensation for persons holding similar positions, if appropriate. Market rates, however, shall be considered only for the purposes of internal comparisons between various Amtrak positions, and shall not be considered for the purposes of general or overall increases in the compensation of Amtrak Management employees. Class Counsel shall have the opportunity to meet with the consultant before the consultant completes his or her report to discuss the factors the consultant intends to take into account in analyzing the appropriateness of salaries, how the consultant intends to take those factors into account, and how the consultant will identify comparable positions. The compensation study, and any reports or recommendations concerning the same, shall be completed within 6 months of the completion of the revisions to the job descriptions, as set forth in Section IV(E) of this Decree. Amtrak does not commit through the compensation study: (1) to adjust the salaries of Amtrak Management employees to market rates; (2) to limit starting salaries of new Management employees based on compensation paid to existing Amtrak Management employees; or (3) to increase periodically the salaries of Amtrak's Management employees.
Amtrak shall maintain a computerized database of all salaries of Management employees. The computerized database shall be maintained by the Human Resources Department.
2. Adjustments to Salaries if There Are Race-based Disparities
If the compensation study shows that there are disparities in salaries between African American Management employees and white employees in comparable positions, to the disadvantage of African American Management employees, Amtrak will increase the compensation of African American Management employees to eliminate any racial disparities. Prospective salary adjustments, if any need to be made, shall be made within 3 months of the completion of the compensation study. Within 30 days after completing the adjustments, Amtrak shall provide Class Counsel with a final report identifying all such disparities and adjustments and justifications for them. The report containing this information, as well as the race of the employees, shall be in computer-readable format. Class Counsel may challenge the adjustments, or lack thereof, pursuant to the procedures set forth in Part XI of this Decree.
E. Job Descriptions and Qualifications
1. Revision of Job Descriptions
Within 2 years after the Injunctive Effective Date, Amtrak shall review and revise all job descriptions for Management positions. At least forty percent (40%) of all job descriptions for Management positions shall be reviewed and revised within 1 year of the Injunctive Effective Date.
Amtrak shall hire an employee ("internal analyst"), or an outside consultant, to review and revise the job descriptions for Management employees. If Amtrak decides to hire an internal analyst it shall so notify Class Counsel. Class Counsel may provide Amtrak's counsel with a list of job analysts who may serve as a source for referrals for the internal analyst position. Amtrak shall consider any referrals that it receives from Class Counsel or from the job analysts identified by Class Counsel. Prior to hiring an internal analyst, Amtrak shall provide Class Counsel with a copy of the resume of the person that Amtrak has decided to hire as an internal analyst and permit them a reasonable period for comment. If Amtrak decides to hire an internal analyst, Amtrak will also hire sufficient staff and/or short term consultants to be able to complete the review and revision of job specifications within the 2-year requirement under this Decree. If Amtrak decides to retain an outside consultant to review and revise the job descriptions of Management employees, the procedures for hiring outside consultants that are set forth in Section IV(A)(3) shall apply.
The revised job specifications or descriptions shall contain requirements or qualifications that Amtrak believes are necessary to satisfactory job performance. No specifications or job descriptions shall include provisions that are crafted to make only one or several favored persons qualified to fill the position. Amtrak shall allow Class Counsel to have access to the revised job specifications.
Job descriptions shall be posted with any notice of a position to be filled, and shall be available for review by any applicants for a position. Vacancies will be posted for a full 7 days, pursuant to Amtrak procedures. If an accretion in job duties for a position results in a job moving to a new salary band and zone, the position must be reposted and refilled and incumbents in such position shall remain in the position pending the refilling of the position.
The first time that a position is posted based on a revised job description, the posting notice, and the telephone message on the Amtrak job line shall: (a) include a statement that indicates that the posting is based on a revised job description; (b) include a summary of any changes in the job qualifications included in the revised job description; (c) identify a location where the revised and old descriptions may be reviewed, and a telephone number that an employee may call to obtain copies of the revised and old descriptions; and (d) include a message that informs the caller that within 24 hours of a request, the new job description and posting will be faxed or emailed to an employee, or if the employee is in a location where a facsimile or email is not available, the new job description and posting will be read to the employee over the telephone. Amtrak shall act in conformity with such message.
An Internal Applicant for a position and an incumbent employee in a position may challenge a job description in the following circumstances.
Internal Applicants shall have the ability to challenge a job description on the ground that it was crafted to make only one or several favored persons qualified for the position covered by the job description. Absent informal resolution of claims, the procedure for asserting a challenge to the description shall be as follows:
a. The Internal Applicant must file a written challenge with the Vice President of Human Resources ("VP of HR") within the 7-day period provided by Amtrak for responding to a posted job vacancy.
b. The VP of HR shall have 10 business days from the date that the challenge is received to resolve or rule on the challenge.
c. If the VP of HR cannot resolve the challenge or overrules the challenge, and the Internal Applicant's claim is that the crafting of the job description was racially motivated, then the Internal Applicant shall have 7 business days from the day that he/she receives notice of the ruling by the VP of HR to file a written appeal with the Senior Director, EEO Resolution. If the Internal Applicant's claim is not based on an allegation of racial motivation, the decision of the VP of HR shall be the final decision.
d. The Senior Director, EEO Resolution shall have 20 business days from the day that the written appeal is received to resolve or decide the appeal.
e. If the VP of HR or the Senior Director, EEO Resolution determines that the challenged job description was crafted to make only one or several favored persons qualified for the position covered by the job description, Amtrak shall revise the ...