Proposed Settlement of Diamond v. Department of Health & Human Services
| Decision Date | 04 December 1998 |
| Docket Number | 98-31 |
| Citation | 22 Op. O.L.C. 257 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Proposed Settlement of Diamond v. Department of Health & Human Services |
RANDOLPH D. MOSS, Acting Assistant Attorney General Office of Legal Counsel
Proposed Settlement of Diamond v. Department of Health & Human Services
The Department of Health & Human Services may lawfully enter into a settlement providing that the positions of specific employees will not be reclassified until they vacate the positions if, in light of the facts of the case and recognizing the inherent uncertainty of litigation, the agency concludes that a court might find that there was a cognizable danger of recurrent sexual discrimination in the reclassifications in violation of Title VII of the Civil Rights Act of 1964.
This memorandum responds to your letter requesting our views on the lawfulness of a provision in a proposed settlement agreement in the case of Sarah Diamond v. Department of Health & Human Services, EEOC Case No 110—96-8155X.[1] We conclude that on a finding of discrimination in the reclassification, a court could enjoin reclassification of the positions of specific employees if the court found some cognizable danger of recurrent violation. If the record contained abundant evidence of consistent past discrimination, a court would likely presume an injunction was appropriate unless the agency presented clear and convincing proof of no reasonable probability of future noncompliance with the law. If the court found only an isolated occurrence of discrimination, plaintiffs would have to provide additional evidence of the cognizable danger of a recurrent violation to justify such an injunction. If, in addition, the facts indicated that the affected employees were close to retirement or, for other reasons, expected to vacate the positions in a relatively proximate and definite period of time, the injunction would be less vulnerable to challenge as overbroad than if the employees were relatively new or otherwise could be expected to stay on for several years.
The Department of Health & Human Services ("HHS") thus may enter into a settlement providing that the positions of specific employees will not be reclassified until they vacate the positions if, in light of the facts and recognizing the inherent uncertainty of litigation, the agency concludes that a court might reasonably find that there was a cognizable danger of recurrent violation in the reclassifications. The risk that a court would find a cognizable danger of recurrent violation could be a risk of retaliation against the employees, of further use of discriminatory practices or procedures in the reclassification, or that the reclassification [ 258] of these employees would perpetuate the effects of past discrimination. This is not to say the agency must conclude that it believes future violations will occur. Rather, the agency may settle where it concludes, on the basis of a good faith assessment of the litigation risk, that there is a genuine risk of an adverse judgment on the question.
The lawfulness of including such a term in a settlement therefore, depends upon the particular facts. Because we are not in a position, and have not been asked, to evaluate the factual predicate for the proposed settlement, including the circumstances surrounding the employment and reclassification of the three employees who will be permitted to remain in their pre-classification positions, we cannot reach a conclusion regarding the final legality of this provision. We conclude, however, that there could be facts under which such relief would be lawful.
Under Title 5 of the United States Code, each position in a covered federal agency is placed in the appropriate "class" and "grade" based upon the level of difficulty, responsibility, and qualification requirements of the work. See 5 U.S.C. §§5101, 5106 (1994). The Office of Personnel Management ("OPM"), after consulting with the relevant agencies, is charged with developing the standards for placing positions in their proper class and grade. See 5 U.S.C. §5105 (1994). A covered agency has the authority and obligation to "place each position under its jurisdiction in its appropriate class and grade in conformance with standards published by [OPM]." 5 U.S.C. §5107 (1994). Periodically, OPM must review a sample of the positions in each agency ' 'to determine whether the agency is placing positions in classes and grades in conformance with or consistently with published standards." 5 U.S.C. §5110(a) (1994). If, during the review pursuant to §5110(a), OPM finds that an agency has failed to place a position in its proper grade and class, the statute directs OPM to place the position in the appropriate grade and class. Id. § 5110(b). If OPM finds that an agency is not classifying positions in accordance with published standards, OPM "may revoke or suspend the authority granted to the agency by section 5107 . . . and require that prior approval of [OPM] be secured'' before a classification decision becomes effective for payroll and personnel purposes. 5 U.S.C. §5111 (1994).
This case arises from a 1995 position classification review at the Centers for Disease Control and Prevention ("CDC"), an agency of HHS. Pursuant to the review, CDC downgraded eighty-two administrative positions. Sixty-eight of the affected employees were women.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e—2000e-17 (1994 & Supp. II 1996), requires that "[a]ll personnel actions affecting employees or applicants for employment... in [federal] executive agencies . . . shall be made [ 259] free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. §2000e-16(a). The Equal Employment Opportunity Commission ("EEOC") has authority to enforce Title VII against federal agencies through an administrative process. See 42 U.S.C. §2000e-16(b). In February of 1996, Sarah Diamond, on behalf of herself and the other sixty-seven affected female employees, filed discrimination complaints against CDC and OPM with the EEOC challenging the classification review as discriminatorily targeting women's jobs for downgrading and as having a discriminatory impact on women employees.[2]See Memorandum for Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from Lorraine Lewis, General Counsel, Office of Personnel Management at 12 (May 1, 1998) ("OPM Memorandum"). The complaints alleged that sex discrimination tainted "the entire process, from the identification of the positions which would be reviewed to the audits, and ultimately to the actual downgrades." HHS Memorandum at Attachment 4 (Complainants' Response to OPM's Motion to Dismiss at 7 (May 30, 1997)).
The administrative law judge ("ALJ") assigned to the cases ordered that OPM be joined with CDC as a defendant in a single, consolidated case. See HHS Memorandum at 3. In April of 1997, OPM unsuccessfully moved to dismiss the complaint. OPM argued that the complainants had not exhausted administrative remedies and that the EEOC had no jurisdiction over the case. OPM offered three theories as to why EEOC lacked jurisdiction. First, it argued that reclassifying a position is not a "personnel action" covered by Title VII. Second, OPM maintained that the EEOC did not have authority to remedy discrimination in a classification decision by ordering an agency to place a complainant in a grade different from the grade assigned by OPM. Third, OPM stated that the EEOC had no authority to review "the classification system"—i.e. any actions taken under the classification statutes and the corresponding OPM regulations. Id. at Attachment 2 (OPM's Motion to Dismiss at 8-10 (Apr. 25, 1997)). The EEOC denied the motion to dismiss. Id. at Attachment 6 (Order Denying Motion to Dismiss (Jun. 10, 1997)).
After the ALJ denied OPM's motion, CDC made efforts to locate other positions for the affected employees at their pre-review grade and pay. Many were moved to new positions. CDC restructured the duties of others in order to preserve their pre-review grade. At the time of the HHS request for our views, three class members remained for whom no grade-saving positions could be found. See HHS Memorandum at 2. [ 260]
On July 10, 1997, HHS and the class reached a tentative settlement agreement. Paragraph 1 of the settlement provided:
The class members who have not (a) been placed in other positions at their original grade, or (b) otherwise voluntarily removed to another position, or (c) left the employment of the CDC, through resignation, retirement, or death, shall be allowed to remain in their current positions, at the grade they held prior to the classification review. Said positions will be subject to reclassification consistent with applicable classification standards when the class members who encumber them vacate said positions by any means, including but not limited to selection or reassignment to another position, resignation from CDC, retirement, or death.
OPM Memorandum at Attachment A (Settlement Agreement between Complainant Class and Department of HHS ¶ 1 (Nov. 7, 1997)) ("HHS Settlement Paragraph 1").
OPM objected to paragraph 1 of the proposed HHS settlement. OPM informed HHS that if HHS implemented this provision, OPM would, pursuant to 5 U.S.C. §5111(a), revoke or suspend HHS's authority to classify positions at CDC. See HHS Memorandum at 4.
On November 7, 1997, HHS and the plaintiff class executed a settlement that included paragraph 1 but conditioned its implementation on two events: a determination by the Office of Legal Counsel ("OLC") that the provision was lawful, and agreement by OPM not to revoke...
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