Baker DC, LLC. v. Acosta
| Decision Date | 06 April 2018 |
| Docket Number | Case No. 1:17-cv-530 |
| Parties | BAKER DC, LLC., Plaintiff, v. R. ALEXANDER ACOSTA, Secretary, United States Department of Labor, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
This matter is before the Court on cross motions for summary judgment. Defendants filed a Motion for Summary Judgment, (Doc. 12), which Plaintiff opposed, (Doc. 17). Plaintiff filed a Motion for Summary Judgment, (Doc. 13), which Defendants opposed (Doc. 16). All parties filed replies. (Docs. 18, 19.)
For the reasons set forth below, the Defendants' Motion for Summary Judgment, (Doc. 12), is DENIED as to Plaintiff's Fourth Amendment claim and GRANTED as to Plaintiff's Paperwork Reduction Act Claim. The Plaintiff's Motion for Summary Judgment, (Doc. 13), is GRANTED on the Fourth Amendment claim and DENIED on the Paperwork Reduction Act claim.
The United States Department of Labor, Office of Federal Contractor Compliance Programs ("OFCCP") ensures that covered federal contractors and subcontractors comply withlegal requirements under Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793, and the Vietnam Era Veterans' Readjustment Assistant Act, 38 U.S.C. § 4212, to take affirmative action and not discriminate based on race, color, sex, sexual orientation, gender identity, religion, national origin, disability, or status as a protected veteran. (PageID 1454.) Through its Mega Construction Project ("MCP") program, OFCCP attempts to maximize limited resources by inspecting and reviewing federal and federally-assisted construction contractor and subcontractor compliance on particular projects.2
OFCCP gathers "prescheduling information" including information related to "the current projects underway, number of employees, duration of the projects, and other basic information . . . to determine if OFCCP has jurisdiction for scheduling a construction review." (PageID 1449.) Once jurisdiction is confirmed, OFCCP conducts an onsite review, beginning with an entrance conference with a top company official or delegate "to educate the subcontractor on what is expected during the compliance evaluation." (PageID 1448.) OFCCP interviews management personnel, and "[t]hen using a list of current projects where there are employees, OFCCP determines which construction sites to visit to conduct employee interviews." (PageID 1451-52.) OFCCP also requests documents and establishes a date the documents will be submitted. (PageID 1452.)
On September 30, 2014, the General Services Administration awarded Grunley Construction Company a $139 million contract to renovate a building on the St. Elizabeths West Campus in Washington, D.C. (PageID 1442.) OFCCP selected this project as a MCP, and Grunley Construction agreed to participate in OFCCP's MCP program. (Id.) For selected MCPs, the prime contractor is always scheduled for a compliance review, and the subcontractorsbecome eligible for scheduling once they have worked on the MCP for three months. (PageID 1450.) Subcontractors are scheduled for compliance review in the order in which they reach the three month mark "unless [OFCCP] had received credible reports of discrimination, in which case they would move up the list." (PageID 1451.)
At an OFCCP outreach event on February 9, 2015, some individual attendees complained to OFCCP Assistant District Director Tanya Bennett about Baker DC's treatment of African American employees. (PageID 1446.) In addition, one person telephoned Ms. Bennett after the event to make five specific allegations of discrimination, (id.), but no formal complaints were filed against Baker DC by any of the oral complainants. (PageID 1451.)
In June and September 2015, Grunley Construction awarded federal subcontracts to Baker DC—a concrete construction contractor—for the St. Elizabeths project for $100,000 and $15 million, respectively. (PageID 1442.) Baker DC began working on the project in November 2015, and reached its three-month date at the end of January 2016. (PageID 1450.)
In February 2016, OFCCP began scheduling compliance reviews for the relevant phase of the St. Elizabeths MCP. (PageID 1444.) OFCCP provided a partially-redacted chart3 identifying the order in which construction contractors would be eligible for review, as follows:
According to Tom Wells, the Director of the OFCCP Baltimore District Office, OFCCP scheduled Grunley Construction first because it was the prime contractor. (PageID 1450.) Contractor #8 and Baker DC were scheduled for review next because OFCCP received "credible complaints of discrimination." (Id.) Contractors #2 and #3 were scheduled after that "because they were the next contractors to reach three months of work on the Mega Project." (Id.) "Mr. Wells explained that OFCCP schedules contractors for whom it receives credible complaints out of order because such companies are of concern to OFCCP and its procedures." (Id.) "OFCCP has never received credible complaints of discrimination against a contractor and not moved them up the list." (PageID 1450-51.)
Although no "formal complaints" had been filed with OFCCP regarding Baker DC, Mr. Wells found the complaints made at and shortly after the outreach event "to be credible based on the fact that OFCCP received the information from several people and there was specificity to the complaints." (PageID 1451.) He defined "credible" to mean "good reason to believe that the statements could be true." (Id.) Mr. Wells acknowledged that he did not speak to any of the oral complainants, did not make any notes at the time of the complaints, and "does not know if any of the complainants, besides one, worked for" Baker DC. (PageID 1452.) Mr. Wells did not investigate the complaints at the time because "such determination would have been done through the compliance review OFCCP sought to conduct." (Id.)
OFCCP notified Baker DC it had been selected for compliance review, and Baker DC's attorney contacted Mr. Wells "to obviate the need for an entrance conference." (PageID 1442.)At OFCCP's request, Baker DC's attorney arranged for an OFCCP compliance officer to interview Baker DC's Corporate Compliance Manager and two other managers via telephone. (Id.) OFCCP then requested specific documents4 "as part of an on-site review and on-site employee interviews to be conducted," but Baker DC—through counsel—denied those requests. (Id.) OFCCP issued a "Notice to Show Cause" for its denial of access to its Washington, D.C. worksites, but Baker DC refused to allow entrance. (Id.)
On January 13, 2017, OFCCP filed a complaint with the United States Department of Labor, Office of Administrative Law Judges, alleging that Baker DC refused to supply records and permit an on-site compliance review in violation of Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793, and VEVRA, 38 U.S.C. § 4212. The ALJ conducted a hearing on May 23, 2017, and issued a Recommended Decision and Order Enforcing Onsite Review. (Doc. 9-2 at PageID 1440-61.) The ALJ resolved all legal issues in OFCCP's favor, and concluded that an onsite compliance review had begun on May 11, 2016, with OFCCP's telephone interview of Baker DC's managers. (PageID 1458.) Baker filed exceptions to the ALJ's Recommended Decision before the Department of Labor's Administrative Review Board. (PageID 1505-33.) The Administrative Review Board did not issue a final order within 30 days of the time for filing exceptions so the ALJ's Recommended Decision and Order became a final administrative order on the 31st day, pursuant to 41 C.F.R. § 60-30.37. Baker then appealed the final administrative order to this Court pursuant to the APA. This matter is now before the Court on Plaintiff's and Defendants' Motions for Summary Judgment (Docs. 12 and 13).
When reviewing a final administrative order under the APA, "the usual rules governing summary judgment do not apply." Integrity Gymnastics & Pure Power Cheerleading, LLC v. U.S. Citizenship and Immigration Servs., 131 F.Supp.3d 721, 725 (S.D. Ohio 2015) (citing City of Cleveland v. Ohio, 508 F.3d 827 (6th Cir. 2007)). Rather, a district court is to determine only whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(a)(2). "A determination of whether an agency's action was arbitrary, capricious, or an abuse of discretion must be made on the basis of the administrative record." Integrity Gymnastics, 131 F.Supp.3d at 726; 5 U.S.C. § 706; Trinity Industries, Inc. v. Occupational Safety and Health Review Comm'n., 16 F.3d 1455 (1994). "[O]ur review of the ALJ's factual determinations is limited to determining whether those determinations are supported by substantial evidence on the record as a whole—not whether there was substantial evidence in the record for a result other than that arrived at by the ALJ." Steeltech, Ltd. v. United States E.P.A., 273 F.3d 652, 657 (6th Cir. 2001). The Court reviews "questions of law de novo, though some deference may be owed where the agency is reasonably interpreting the statutes it is charged with administering." R/T 182, LLC v. F.A.A., 519 F.3d 307, 309 (6th Cir. 2008)
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