Confidential
Settlement – $2,100,000Judge
Court
USDC Northern
Attorneys
Plaintiff
Richard M. Rogers
(Law Office of Richard M. Rogers)
Defendant
Experts
Plaintiff
Jack Kearns
(technical)
Defendant
Jeffrey Daum
(technical)
Stephen Huley
(technical)
Facts
Plaintiff employees, approximately 47 in number, filed charges with the EEOC alleging that they were discriminated against in promotion because of their age, 40 years and older. The EEOC investigated the charges and made administrative determinations that the charges had merit; and filed litigation. The San Francisco District Office of the U.S. Equal Employment Opportunity Commission (EEOC) filed lawsuits in 1990 and 1991 in Federal District Court, alleging that the Defendant employer discriminated against persons age 40 and older in violation of the Age Discrimination in Employment Act (ADEA) by denying them equal opportunity for promotion to the job classifications of Program and Project Supervisor, and Program Manager. In 1993 Plaintiffs' attorney filed a third lawsuit in Federal District Court on behalf of 35 Plaintiff employees alleging that since 1983 the Defendant employer and their individual named managers discriminated against persons age 40 years and older in promotional examinations and promotions in violation of the ADEA, the California Fair Employment, and Housing Act as well as state common law. The 3 lawsuits were consolidated for trial by Judge Barbara Caulfield and reassigned to Judge Marilyn Patel in September of 1994.
Settlement Discussions
Offers and demands exchanged in these lengthy negotiations were not disclosed. A series of settlement conferences were conducted by U.S. District Judge Eugene F. Lynch.
Damages
The nature and value of the damages were not specified.
Result
The Consent Decree provides for monetary relief for the individual class members as well as for significant changes to the Defendants' programs for promotional examinations and equal employment opportunity. Class members who are presently employed by the Defendants will have the option of accepting a monetary payment or an enhanced early retirement incentive that provides for retirement benefits to be calculated based on an additional 3 years of service and 3 years of age. Class members who retired before May 20, 1994, will receive a monetary payment, but will not have the option of enhanced early retirement benefits. It is expected that about 37 class members will take the monetary payment and about 10 will take the enhanced early retirement option. The Consent Decree also requires the Defendant employer to retain an industrial organizational psychologist to construct objective, job-related examinations (for Program and Project Supervisor, Program Manager, Senior Utilities Engineer and Public Utilities Regulatory Analyst V; 4 positions only), and selection procedures which meet professional testing standards. This test development and administration work will be reported to, and reviewed by, the EEOC during the 4-year term of the Consent Decree. The newly-developed examinations will be different from past examinations in many important ways: the new examination panels will include members from outside of the Defendant employer; all examination panelists will be trained in testing; examination scores will be derived from the average of the panelists' scores for each candidate and consensus scoring where all of the panelists agreed to give the same score to a candidate will no longer be used; the 2-year rule which allowed only consideration of a candidate's most recent 2 years of experience will be eliminated; meaningful feedback will be provided to candidates who are ranked lower than the top 3 ranks on examinations; examination interviews will be tape recorded; and all examination records will be retained for a period of 5 years. The results of each examination will be evaluated to determine if it has had an adverse impact on the bases of age, sex, race, national origin, or religion; if an adverse impact is shown, the Defendant employer will not use the examination results for promotional purposes and it will conduct a search for alternative examination procedures to eliminate the adverse impact. Under the approved Consent Decree, additional changes will be implemented to improve promotional testing and to enhance equal employment opportunity programs. These include: establishing the position of manager of testing and staffing with someone possessing at least a master's degree in the field; implementing a comprehensive and objective employee performance appraisal system on a regular schedule for performance appraisals; creating an employee EEO advisory committee to be staffed by representatives from Defendant employer's special interest groups and will make recommendations to Defendant employer's AA and EEO officer; upgrading and specifying the responsibilities of the AA & EEO officer to ensure the continued maintenance of a viable EEO program; and facilitating employee development by issuing reports to Defendant's employees on opportunities for training and job rotation.
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