State of Texas v. EEOC et al

Filing 35

Supplemental Document by State of Texas as to 32 Response/Objection, . (Attachments: # 1 Declaration(s) Exhibit A, # 2 Exhibit(s) Exhibit A-1, # 3 Exhibit(s) Exhibit A-2) (Mitchell, Jonathan)

EXHIBIT A-1

OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.

Ogletree
Deakins

Attorneys at Law
One Allen Center
500 Dallas Street, Suite 3000
Houston, TX 77002
Telephone: [phone]
Facsimile: 713.655.0020
www.ogletreedeakins.com

Stephen J. Quezada
713.655.5772
[e-mail]

June 20, 2014

Via Facsimile 713.651.4902
Stephen Damiani
U.S. EEOC
Houston District Office
1201 Louisiana St., 6th Floor
Houston, Texas 77002

RE:

Dear Mr. Damiani:
I'm responding to your letter dated June 9, 2014. You indicated that the Commission
plans to issue a cause finding in this matter. A cause finding, however, is inappropriate.
Respondent's background check policy was not applied to Charging Party; no disparate impact
occurred with relation to Respondent's customer's policy that was applied to Charging Party;
Respondent's background check is no longer in effect, and Plaintiff did not engage in any
protected activity. Further, the Enforcement Guidance that you are attempting to impose on
Respondent is, by the Commission's own admission, merely its "unremarkable" view and not
law.
We hope that the Commission will consider its position on this charge, and upon review
of the entire case file, dismiss the above-referenced Charge with a no-cause finding.
I.

Background

This is a national origin disparate impact and retaliation charge of discrimination arising
from Charging Party's employment with Respondent as an industrial scaffold carpenter
journeyman. Respondent is a company that provides engineering, construction, and maintenance
service to its customers for work in energy infrastructure facilities. On June 5, 2012, Charging
Party filed a Charge of Discrimination alleging that Respondent's "practice and/or policy
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Washington

Oglefree

June 20, 2014
Page 2

Deakins

regarding criminal background checks has an adverse impact against Hispanics as a class," and
alleging that Respondent retaliated against him when it terminated his employment.
Charging Party worked for Respondent at the
Chemical Plant in 111=11 Texas
is Respondent's customer. Charging Party
from April 25, 2011, until April 24, 2012.
expressed interest in a permanent maintenance position as an industrial scaffold carpenter
journeyman at the ID Chemical Plant. •'s policy requires that permanent or full-time
employees working at its plant complete a background check. A background check was
performed on Charging Party, and it revealed that Charging Party had a felony burglary
conviction for which he was sentenced to a 20-year prison term.1 ars policy did not allow
Charging Party to continue working at its location. Respondent terminated Charging Party's
employment on April 24, 2012 because he was not able to continue to work in this location and
another position for which he qualified was not readily available. Charging Party filed this
Charge on or about June 5, 2012. The Commission's investigation ensued.

up

In our conversation on June 7, 2014, you stated that you anticipated the issuance of a
cause finding for four reasons: (1) the time period was removed from the Respondent's
background check policy, which was not applied to Charging Party; (2) you believe Respondent
should have done more to place Charging Party in a position subsequent to his removal from the
Project; (3) Respondent did not provide Charging Party with a pre-adverse action
notification;2 and (4) Respondent did not perform an individualized assessment of Charging
Party's criminal history prior to his termination. For these reasons, you stated it was the
Commission's goal to change Respondent's background check policy (which is no longer in
effect).

ap•

A cause finding related to Charging Party's disparate impact allegation is not warranted
because: (1) Respondent's background check policy was not applied to Charging Party and has
been discontinued; (2) the data provided to the Commission demonstrates that a disparate impact
did not occur with respect to the policy that did apply to Charging Party; and (3) the standards
you refer to and impose on Respondent (listed above) are not substantive rules, and adherence to
them is not required.3

Charging Party also has two offenses for driving while intoxicated (Cause Nos,:
and
a felony auto theft offense (Cause No.:11111111111111111111M, and second felony burglary offense
(Cause No.:411111111111111111111 in Harris County. These offenses, however, were not known to Respondent during
Charging Party's employment and were not taken into consideration.
2 Respondent concedes that it failed to provide this notice to. Charging Party, but denies that this was done in
discrimination against Charging Party. Indeed, there is no evidence of discrimination and Charging Party is, and has
been, eligible for rehire.
3 Charging Party also asserts that Respondent retaliated against him. This claim fails on its face because Charging
Party never engaged in a protected activity.

1
1111111=1111.,

Ogletree
Deakins

June 20, 2014
Page 3
II.

Charging Party's disparate impact claim fails and a cause finding is not warranted
i.

Respondent's background check policy is irrelevant because it was not applied to
Charging Party and is no longer in effect

As Respondent informed the Commission from the outset of this more than two year
investigation, and which the Commission acknowledged, Respondent's background policy was
not applied to Charging Party. Further, Respondent's background check policy is moot because it
is no longer in effect.
For these reasons alone, Charging Party's Charge should be dismissed.
ii.

The data demonstrates that the policy applied to Charging Party does not have a
disparate impact on Hispanics

Charging Party's disparate impact claim also fails because the applicant and hire data
provided to the Commission by Respondent demonstrates that no disparate impact occurred.
'On August 8, 2012, Respondent provided the Commission with the name, race, and
position of its employees working at the 411.1Plant and who were subject to thee. policy. That
data demonstrates that Charging Party's disparate impact allegation is baseless, and is
summarized as follows:
Number

Hispanic
51

White
27

Black
9

58.6% of all employees are Hispanic.
On February 8, 2013, in response to the Commission's first of four requests for
information, Respondent provided the Commission with the "name, race, position, and
application of all [persons], [sic] not hired due to criminal records and/or .1110.111.111,s
criminal background check policy after June 6, 2011," as follows:
Hispanic
White
Black

2011
8
5
1

2012
14
10
2

TOTAL
22
15
3

On August 16, 2013, in response to the Commission's second request for information,
Respondent provided the Commission with "a listing of all individuals not hired, promoted, or
referred for a job by fla including but not limited to Charging Partylillift after his April
24, 2012 discharge, due to this policy from the time period January 1, 2012 to the present," as
follows:

Ogletree
Deakins

June 20, 2014
Page 4
Hispanic
19

Number

White
4

Black
3

Unknown4
10

On March 11, 2014, in response to the Commission's fourth request for information,
Respondent provided the Commission with "all individuals (to include both craft and salaried
employees) who were placed into positions (whether temporary or permanent), by Res ondent
beginning April 1, 2012 through July 31, 2013 at four locations:
ellp (now
c1111111111111111. " as follows:
111111.1111111114.11(s
Hispanic
92

Number

White
48

Black
12

Unknown
6

58.2% of all employees hired by Respondent at the above-listed locations axe Hispanic.

eb

Clearly the
policy that was applied to Charging Policy, and similar unrelated policies
at unrelated locations, did not have a disparate impact on Hispanic applicants or employees. The
Commission admits that not even "a blanket prohibition on hiring felons," can "constitute a
disparate impact...unless the evidence demonstrates that the practice has a statistically
differential effect [] on a protected class."5 Charging Party's disparate impact allegation is
baseless and his Charge should be dismissed because the data demonstrates that no disparate
impact occurred:5
iii.

The EEOC concedes that adherence to its criminal background check
enforcement guidance is not required, that the guidance is unremarkable and
merely presents the Commission's ineffectual interpretation, and concedes that
individualized assessments are not required.

You stated that the Commission will issue a cause finding in this case because, inter alia,
Respondent did not perform an individualized assessment of Respondent's background check
results, as required by the Commission's Enforcement Guidance related to criminal background
checks ("Enforcement Guidance").7 The Commission, however, admits that its Enforcement
Guidance lacks the "force of law" that it is forcing on Respondent. 8

4

Those employees' who race is unknown ar

State of Texas v. EEOC, et a ,, Cause No. 5:13-cv-00255, In the United States District Court for the Southern
District of Texas, Lubbock Division, Dkt. 16 at p. 20 (citing Hill v. Miss, State Employment Svcs., 918 F.2d 1233,
1238 (5th Cir. 1990)).
6 You also stated that the Commission will issue a cause finding because Respondent's defunct policy, which was
not applied to Charging Party, did not contain a time limitation. A cause finding is still not warranted because the
necessary predicate—an actual disparate impact on a protected class—is not present.
7 You also stated that your legal department is closely monitoring this Charge, and that your correspondence dated
May 23, 2014, advising of the Commission's concerns that will lead to a cause finding was vetted by multiple layers
of review within the Commission's legal department. You stated that because the Commission's legal department
approved the language of your correspondence that you were not able to deviate from its language or position.
8 State of Texas v. EEOC, et al., Cause No. 5:13-cv-00255, Dkt. 16 at pp. 13-14 (the Commission also admits that a
violation of its Enforcement Guidance is not illegal).

June 20, 2014
Page 5

Ogletree
Deakins

The Commission admits that the performance of an individualized assessment prior to
taking an adverse action is only its "view,"9 is "unremarkable," and "does not have any legal
consequences."I° The Commission also admits that it cannot "punish employers for practices
that diverge, from its perspective, from the requirements of Title VII."u The Guidance is merely
the Commission's "interpretation."I2 Further, the Commission asserts that its Enforcement
Guidance states the "opposite" of the absolute requirement to perform an individualized
assessment you are imposing on Respondent.13 Indeed, the Commission states that its
Enforcement Guidance "does not necessarily require [an] individualized assessment."14
Because you are imposing the requirement to perform an individualized assessment contained in
the Enforcement Guidance, the Commission is improperly altering the obligations imposed on
Respondent by Title VII, and the cause finding you stated the Commission intends to issue is
inappropriate and improper.
III. Conclusion
For all these reasons, Respondent requests that the Commission dismiss Charging Party's
Charge of Discrimination.

SJQ:lga

Id at p. 6.
Id at Dkt. 30, p. 7. "The Guidance is just that — guidance. In a nutshell, it reflects the EEOC's view
unremarkable in light of Title VII's prohibition on disparate-impact discrimination." Id.
II Id.
12 kl. at p. 8.
13 Id. at p. 27.
14 Id.

9

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