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USDOL/OALJ Reporter
CCASE_NAME:
OFCCP V. SIEMENS TRANSMISSION SYSTEMS
CCASE_NO:
89-OFCCP-11
DDATE_ISSUED:
19891220
TTITLE:
CONSENT DECREE
TTEXT:
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UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATION LAW JUDGES
. . . . . . . . . . . .. .. . ..
U.S. DEPARTMENT OF LABOR, .
OFFICE OF FEDERAL CONTRACT . Case No. 89-OFCCP-11
COMPLIANCE PROGRAMS, .
.
Plaintiff, .
.
v. .
.
SIEMENS TRANSMISSION SYSTEMS, .
INC., .
.
Defendant. .
. . . . . . . . . . . . . . . ..
CONSENT DECREE
PART A. JURISDICTION AND PROCEDURAL HISTORY
1. On _____________________, plaintiff, office of
Federal Contract compliance Programs, U.S. Department of Labor
(OFCCP), filed an Administrative Complaint against Siemens
Transmission Systems, Inc. concerning its Albuquerque facility,
the only facility involved herein, which facility shall herein-
after be designated "STS." The Complaint alleges violations of
Section 503 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 793 (Section 503), and the regulations promulgated
pursuant thereto at 41 CFR 60-741.1 et seq., said alleged viola-
tions arising solely out of the conduct of GTE Lenkurt, the
previous owner of the Albuquerque facility.
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2. The U.S. Department of Labor, Office of Administrative
Law Judges, has jurisdiction over this matter pursuant to Section
503, 41 CFR 60-741.29 and 41 CFR Part 60-30.
3. Pursuant to 41 CFR 60-30.13 and 60-741.29(b), the
parties to this action, OFCCP and STS, have negotiated and
executed this Consent Decree in full and final resolution of this
matter and have submitted it for consideration by the Administra-
tive Law Judge.
4. The issues resolved by this Consent Decree were identi-
fied in 1981 by OFCCP during its compliance review of the facility
in Albuquerque, New Mexico, then owned by GTE Lenkurt (GTE), and
subsequently acquired by Siemens Transmission Systems, Inc. The
compliance review commenced on April 23, 1981, and concluded on
October 14, 1981. It included the investigation of three indi-
vidual complaints of handicap discrimination filed with OFCCP,
pursuant to Section 503, between April 1980 and February 1981.
5. On October 14, 1981, OFCCP sent GTE a letter which
described the deficiencies, with regard to Section 503, identi-
fied in the compliance review and the corrective actions neces-
sary for GTE to achieve compliance. (Attachment A).
6. In the October 14, 1981, deficiency letter, OFCCP
identified an affected class of qualified handicapped individuals
at the Albuquerque facility and concluded that GTE should provide
complete relief, including back pay, to the identified members of
the affected class, as well as to other qualified handicapped
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individuals subsequently identified by either the company or
OFCCP as a result of an evaluation of medical records withheld
during the compliance review.
7. OFCCP attempted to resolve the alleged violations of
Section 503 through conciliation with GTE; however, such efforts
were unsuccessful.
8. In September 1986, Siemens Transmission Systems, Inc.,
acquired the GTE facility in Albuquerque, New Mexico.
PART B. GENERAL PROVISIONS
9. The record on which this Consent Decree is entered
consists of the Administrative Complaint and the Consent Decree,
including attachments.
10. Attachment A consists of a copy of the deficiency
letter which OFCCP sent to GTE on October 14, 1981.
11. Attachment B consists of the names and addresses of the
individuals who will receive back pay pursuant to Part C, para-
graph 26 of this Consent Decree and the amount STS will pay to
each.
12. Attachment C consists of the names of individuals who
will receive a lump-sum equivalent (present value of annuity) in
lieu of receipt of an annuity, pursuant to Part C, paragraph 26
of this Consent Decree and the amount which STS shall pay each
person.
13. Attachment D consists of the General Release and
Covenant Not To Sue which must be signed by each individual
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listed on Attachment B and C before she/he may receive any back
pay or lump-sum payment in lieu of annuity.
14. This Consent Decree shall not become final until it has
been signed by the Administrative Law Judge. The effective date
of the Decree shall be deemed to be three (3) days after it
becomes final.
15. This Consent Decree shall be binding upon Siemens
Transmission Systems, Inc. and any and all purchasers, succes-
sors, assignees, or transferees, and shall have the same force
and effect as an Order after a full hearing.
16. All further procedural steps to contest the binding
effect of this Consent Decree and any right to challenge or
contest the obligations entered into in accordance with the
agreement contained herein are waived by the parties.
17. This Consent Decree does not constitute an admission by
Siemens Transmission Systems, Inc. of any violation of Section
503 or its implementing regulations and shall not in any way
prejudice Siemens Transmission Systems, Inc. with respect to the
award of government contracts, or otherwise.
18. Subject to STS' performance of all duties and obliga-
tions contained in this Consent Decree, all alleged violations
identified in the Administrative Complaint shall be deemed fully
resolved. However, nothing herein is intended to relieve STS
from compliance with the requirements of Section 503 or its
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implementing regulations, or to limit OFCCP's right to review
STS' compliance with such requirements.
19. STS agrees that the OFCCP may review compliance with
this Consent Decree which resolves only violations identified at
the Albuquerque facility, the only facility involved herein. In
conducting such a review concerning the Albuquerque facility the
OFCCP may, upon reasonable notice, require written reports,
examine witnesses and examine and copy documents to verify that
the provisions of paragraphs 22 through 26 have been implemented
and that the payment of back pay and the payment of lump-sum
equivalents in lieu of purchasing annuities have been made by STS
as provided herein. The information obtained thereby may be used
in connection with the administration of this Consent Decree
pursuant to Part F of this Decree. If the information obtained
thereby does not relate to the allegations of discrimination
addressed in this Consent Decree, enforcement and relief may be
pursued only through the procedures established in the
regulations implementing Section 503 and not through the special
procedures provided for in this Consent Decree.
20. STS agrees that there will be no retaliation of any
kind against any beneficiary of this Consent Decree or against
any person who has provided information or assistance to the
Government in this matter.
PART C. SPECIFIC PROVISIONS
21. In its October 14, 1981, letter of deficiencies the
OFCCP stated that GTE discriminated against handicapped
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individuals at the Albuquerque facility by failing to take
affirmative action to recruit, to employ or advance in
employment, and to provide reasonable accommodation to qualified
handicapped individuals; and by failing to disseminate its
policies concerning the employment of handicapped individuals to
incumbent and prospective employees.
22. STS agrees that employees at the former GTE Albuquerque
facility, which is the sole subject of this Consent Decree, who
are qualified individuals with handicaps, within the meaning of
Section 503, shall not be automatically placed on involuntary
medical leave of absence. STS will make reasonable accommodation
to those handicapped individuals to the extent required by 41 CFR
60-741.6(d).
23. Within three months of the effective date of this
Consent Decree, STS shall make available to the OFCCP its plan to
recruit, employ, and to advance in employment qualified indi-
viduals with handicaps at the Albuquerque facility to the extent
required by 41 CFR 60-741.6(f).
24. Within three months of the effective date of this
Consent Decree, STS shall make available to the OFCCP a statement
of its policies concerning employment of individuals with handi-
caps which shall be disseminated to incumbent and prospective
employees at the Albuquerque facility to the extent required by
41 CFR 60-741.6(f) and (g).
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25. In the deficiency letter dated October 14, 1981, OFCCP
concluded that GTE was not in compliance with 41 CFR 60-741.53
because it had denied OFCCP access to medical records. STS
hereby agrees to allow OFCCP access to medical records at the
Albuquerque facility to the extent required by law, and does not
waive any defense to the production of such records.
26. Within 15 days of the effective date of this Consent
Decree STS will send by certified mail, to each individual listed
on Attachment B and C, an explanation of the terms of this agree-
ment and a copy of the General Release and Covenant Not To Sue
(Release), which is attached hereto as Attachment D. Releases
shall be sent to the addresses listed at Attachment B. The
explanation of the terms of this Consent Decree shall be signed
by representatives of both STS and OFCCP. Each individual shall,
as a condition to receiving payment hereunder, execute the Gen-
eral Release and Covenant Not To Sue and return it to STS. If an
individual fails to execute, notarize, and return the Release
within 30 days of her or his receipt of the Release, but in no
event later than 45 days after date of mailing of the Release by
certified mail to the address listed on Attachment B, STS'
obligation under this Decree to pay back pay, to pay lump-sum
equivalents for annuities or to offer any other relief under
Section 503, including reinstatement to that individual, shall
terminate. Within 30 days of its receipt of a timely and
properly executed Release, STS shall pay the individuals listed
on Attachment B the back pay amount listed therein (which
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includes interest compounded annually at the IRS rates found in
26 U.S.C. 6621), less legal payroll deductions. Within the
stated 30 day period, STS shall also pay a lump-sum equivalent in
lieu of annuity to the individuals as listed in Attachment C. It
is further understood that STS' payment of back pay in the
amounts contained in Attachment B and its payment of lump-sum
equivalents for annuities in the amounts contained in Attachment
C, in accord with this paragraph, settles in full any and all
claims for back pay, benefits and reinstatement or other relief
related to OFCCP's compliance review of GTE, referenced in Part
A, paragraph 4, above.
PART D. REPORTING
27. STS will submit reports to OFCCP six months and twelve
months from the effective date of this Consent Decree which shall
contain:
(a) Confirmation of payment of back pay
pursuant to Part C, Paragraph 26.
(b) Confirmation of payments of lump-sum
annuity equivalents pursuant to Part C,
Paragraph 26.
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(c) A report describing STS' efforts at its
Albuquerque facility to recruit, employ
and advance in employment qualified
individuals with handicaps and its
dissemination of its policy regarding
the employment of qualified individuals
with handicaps.
28. The report will be submitted to James D. Henry, Asso-
ciate Solicitor, Civil Rights Division, Rm. N-2464, U.S. Depart-
ment of Labor, 200 Constitution Avenue, N.W., Washington, D.C.
20210.
PART E. DURATION OF CONSENT DECREE
29. This Consent Decree shall expire in thirteen months
from the effective date of the Decree.
PART F. IMPLEMENTATION AND ENFORCEMENT OF THE DECREE
30. Jurisdiction, including the authority to issue any
additional orders or decrees necessary to effectuate the imple-
mentation of the provision of this Consent Decree, is retained
by the Office of Administrative Law Judges.
31. If OFCCP believes that STS has violated any portion of
this Consent Decree, STS will be promptly notified of that fact
in writing. This notification will include a statement of the
facts and circumstances relied upon in forming that belief. In
addition, the notification will provide STS with 15 days to
respond in writing except where OFCCP alleges that such a delay
would result in irreparable injury.
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32. Enforcement proceedings for violation of this Consent
Decree may be initiated at any time after the 15-day period has
elapsed (or sooner, if irreparable injury us alleged) upon filing
with the Court a motion for an order of enforcement and/or sanc-
tions. The issues in a hearing on the motion shall relate solely
to the issues of the factual and legal claims made in the motion.
33. Liability for violation of this Consent Decree may
subjects STS to sanctions set forth in Section 503 and its imple-
menting regulations.
34. If an application or motion for and order of enforcement
or clarification indicates by signature of counsel that the
application or motion is unopposed by all parties, the applica-
tion or motion may be presented to the Court without hearing and
the proposed order may be implemented immediately. If said
application or motion is opposed by any party, the party in
opposition shall file a written response within twenty (20) days
of service. The Office of Administrative Law Judges may, if it
deems it appropriate, schedule an oral hearing on the application
or motion.
35. The agreement herein set forth is hereby approved and
shall constitute the final Administrative Order in this case.
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It is so ORDERED, this___ day of__________ , 1988
________________________ ____________________
ADMINISTRATIVE LAW JUDGE Date
U.S. Department of Labor
AGREED AND CONSENTED TO:
For Defendant Plaintiff
SIEMENS TRANSMISSION SYSTEMS OFFICE OF FEDERAL CONTACT
INC. COMPLIANCE PROGRAMS
GEORGE R. SALEM
Solicitor of Labor
JAMES D. HENRY
Associate Solicitor
________________________ ________________________
THEODORE M. EISENBERG DEBRA A. MILLENSON
Grotta, Glassman and Hoffman Senior Trial Attorney
75 Livingston Avenue
Roseland, New Jersey 07068 AUDREY B. LITTLE
Attorney
U.S. Department of Labor
200 Constitution Avenue, N.W.
Room N-2464
Washington, D.C. 20210
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[[ ATTACHMENT A unreadable ]]
13
ATTACHMENT B
NAME ADDRESS BACK PAY
Alyce Bluett P.O. Box 576 $20,780
Tijeras, NM 87059
Janet Brown 9208 Comanche Dr. N.E. $15,000
Albuquerque, NM 87111
ercy Chavez 5120 San Luis N.W. $ 8,000
Albuquerque, NM 87107
Joan Fisher 9706 Woodland Dr. N.E. $12,200
Albuquerque, NM 87112
Sarah Gallagher 11508 Bellomah, N.E. $25,134
Albuquerque, NM 87112
Bertha Gomez 2419 Amalia Road S.W. $36,311
Albuquerque, NM 87105
Loretto Herrera 1000 Morris Dr. N.E. $15,000
Albuquerque, NM 87112
George Holmes 2107 Camino Del Pueblo, $49,800
Apt. 9
Bernalillo, NM 87004
arie Lopez P.O. Box 12033 $22,000
Albuquerque, NM 87195
arilyn Pearson Route 3, Box 468-1A $12,500
Phil Campbell, Alabama 35581
Dorothy Robinson 12628 Tomlinson St. S.E. $44,639
Albuquerque, NM 87123
Joyce Spade P.O. Box 2352 $11,659
Bernalillo, NM 87004
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ATTACHMENT C
Present Value of
Annuity (Lump Sum
Name Equivalent)
Alyce Bluett $19,220*
Sarah Gallagher $2,866
Bertha Gomez $4,689
Dorothy robinson $5,361
Joyce Spade $8,341
* Includes retroactive payment of retirement
benefits beginning at age 65.
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ATTACHMENT D
GENERAL RELEASE AND COVENANT NOT TO SUE
For and in consideration of the payment to me of $ by
Siemens Transmission Systems, Inc., [and the payment of a
lump-sum equivalent in lieu of an annuity in the amount of $
], I,______________________ , do hereby fully waive, release, and
remit and forever discharge Siemens Transmission Systems, Inc.,
and any and all of its parents, divisions, subsidiaries,
officers, directors, stockholders, agents, advisers, and
employees, from any and all claims, demands or causes of action
arising under Section 503 of the Rehabilitation Act of 1973, as
amended, 19 U.S.C. 793, on the basis of handicap discrimination
arising out of personnel actions, omissions or practices of
Siemens Transmission Systems, Inc., or GTE Lenkurt, occurring at
any time in the past until the date of this Release. It is
further understood that relief provided for in this Consent
Decree is in full, final and complete settlement of all claims,
actions, causes of actions and administrative charges whether or
not in litigation, which I, or acting on my behalf, my heirs,
successors, executors, administrators or assigns, may have or
could have assorted under section 503 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. 793, based on any action,
omission, or event occurring prior to this date. Included in
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this Release are any and all claims for future damages allegedly
arising from the alleged continuation of the effects of any past
action, omission or event. Also included in this Release is a
waiver of any claim, whatever the basis, to be reemployed by
Siemens Transmission systems, Inc.
I understand specifically that this instrument is a Release
and shall be in full settlement and accord and satisfaction of
any claim or claims of handicap discrimination alleged by me
against GTE Lenkurt and Siemens Transmission systems, Inc. which
claim or claims were or could have been asserted on my behalf of
OFCCP in that certain action styled as Officer of Federal Contract
Compliance Programs, United States Department of Labor v. Siemens
Transmission Systems, Inc., Case No. 87-OFCCP-.
I further represent, declare, and agree that I have read
and understand the terms of this Release and that it is freely
executed in return for payment of the sum
($ ), less legal payroll deductions [and the payment of a
lump-sum equivalent in lieu of an annuity in the amount of $ ],
which will be made to me by Siemens transmission Systems, Inc.
upon execution of this Release.
So done, this day of , 1988.
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City of
Date of
Subscribed and sworn to before me this day of ,
1988.
NOTARY PUBLIC
My Commission Expires:
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SERVICE SHEET
CASE NAME: Office of Federal Contract Compliance
Programs, United States Department of Labor
CASE No.: 89-OFC-11
TITLE OF DOCUMENT: Decision and Order Pursuant to Consent
Decree
A copy of the foregoing document was sent to the following:
Theodore M. Eisenberg, Esq. Audrey B. Little, Esq.
Grotta, Glassman & Hoffman Office of the Solicitor
75 Livingston Avenue Department of Labor
Roseland, NJ 07068 Room N-2464
Washington, D.C. 20210
Civil Rights Divgision
Office of the Solicitor Office of Federal Contract
U.S. Department of Labor Compliance Programs
Attn: Counsel for Litigation U.S. Department of Labor
200 Constitution Avenue, NW, Room C-3325
Room N-2464 200 Constitution Ave., NW.
Washington, D.C. 20210 Washington, D.C. 20210
Debra A. Millenson George R. Salem, Solicitor of
Senior Trail Attorney U.S. Department of Labor
U.S. Department of Labor Office of the Solicitor
200 Constitution Ave., NW Room S-2002, FPB
Room N-2464 200 Constitution Ave., NW
Washington, D.C. 20210 Washington, D.C. 20210
David O. Williams
Office of the Special Counsel
U.S. Department of Labor/ETA
Room N-4671
200 Constitution Avenue, N.W.
Washington, D.C. 20210
