ARB CASE NO. 00-034
ALJ CASE NO. 97-OFC-1
DATE: January 31, 2003
In the Matter of:
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
PLAINTIFF,
v.
BRIDGEPORT HOSPITAL,
DEFENDANT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Plaintiff:
Howard M. Radzely, Acting Solicitor of Labor, Gary M. Buff, Associate Solicitor, Heidi Dalzell-Finger, Counsel for Litigation, United States Department of Labor, Washington, D.C.
For the Defendant:
Michael N. LaVelle, Esq., Pullman & Comley, LLC, Bridgeport, Connecticut
FINAL DECISION AND ORDER
This case arises under Executive Order 11246 (E.O. 11246), Section 503 of the Rehabilitation Act (RA), and Section 402 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA).
Executive Order 11246 prohibits Federal contractors and subcontractors from discriminating based on race, color, religion, sex, or national origin. 30 Fed. Reg. 12,319 (Sept. 24, 1965) as amended by Executive Order 11375, 32 Fed. Reg. 14,303 (Oct. 13, 1967) (adding gender to list of protected characteristics), as amended by Executive Order 12086, 43 Fed. Reg. 46,501 (Oct. 5, 1978) (consolidating enforcement function in DOL).
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Section 503 of the Rehabilitation Act protects employees of Federal contractors and subcontractors from discrimination based on disability. 29 U.S.C.A. § 793 (West 1999).
VEVRAA protects employees of Federal contractors and subcontractors from discrimination based on disability and veteran status. 38 U.S.C.A § 4212 (West 2002).
The Office of Federal Contract Compliance Programs (OFCCP) cited Bridgeport Hospital (Bridgeport) for noncompliance with the anti-discrimination provisions based on Bridgeport's failure to have in place an affirmative action program as required by implementing regulations. Bridgeport denied that it was covered by the anti-discrimination provisions and moved for summary judgment on that ground. The ALJ recommends that Bridgeport's motion for summary judgment be granted.
OFCCP timely excepted to the ALJ's recommendation. We have jurisdiction to review the ALJ's recommended Decision and Order and to issue the Department's final decision in this case pursuant to 41 C.F.R. §§ 60-30.28, 60-250.65(b), 60-741.66(b) (1996). Our standard of review is de novo.United States Steel v. M. Dematteo Construction Co., 315 F.3d 43 (1st Cir. 2002). For the reasons discussed below, we agree with the ALJ's recommendation to grant summary judgment for Bridgeport and dismiss the complaint.
1 Bridgeport and Blue first entered into the agreement in 1989. The agreement was renewed annually and was in effect in 1996, when OFCCP issued the citation at issue here.
2 This is the period for which OFCCP initially sought evidence from Bridgeport of compliance with the affirmative action requirements of the three anti-discrimination laws.
3 OFCCP's Table of Contents lists three points of exception:
Exception 1. The ALJ Erred in Characterizing Bridgeport's
Agreement with Blue as a Reimbursement Agreement rather
than a Contract.
Exception 2. Bridgeport is a Federal Subcontractor under 41
C.F.R. § 60-1.3 Because it Furnishes Medical Services that are
Necessary to Perform Blue's Government Contract with
OPM.
Exception 3. Bridgeport is a Federal Subcontractor Under 41
C.F.R. § 60-1.3 Because it Performs, Undertakes or Assumes
a Portion of Blue's Obligation to Provide Medical Services
Under its Government Contract with OPM.
4 OFCCP also argues over whether the reimbursement agreement between Blue and Bridgeport was a contract. We fail to see the significance of this point inasmuch as the relevant regulations apply equally to both, using the terms "agreement" and "arrangement" interchangeably.
5 OFCCP's argument does not take into account the addendum to the contract, which clarifies the specific obligations that Blue assumed.