1 On April 17, 1996, a Secretary's
Order was
signed delegating jurisdiction to issue final agency decisions under the executive order and
regulations involved
in this case to the newly created Administrative Review Board. 61 Fed. Reg. 19978 (May 3,
1996) (copy
attached).
Secretary's Order 2-96 contains a comprehensive list of the statutes,
executive order and regulations under
which the Board now issues final agency decisions. A copy of the final procedural revisions to
the regulations
(61 Fed. Reg. 19982), implementing this reorganization is also attached.
2 The ALJ also found that CCF
did not
discriminate against four other employees, as alleged in OFCCP's complaint, and OFCCP did not
file exceptions
to those findings.
3 In an Order granting Plaintiff's
motion
to remand this case to the ALJ for submission of a recommended decision on remedies, the
Secretary ordered
the parties to file their exceptions to the ALJ's decisions within 30 days of the ALJ's
recommended decision on
relief, allowed 30 days for filing responses to exceptions, and established page limits for both the
exceptions (25
pages) and responses (15 pages). The Secretary also later granted Plaintiff's request for a 60 day
extension of
time to file responses to CCF's exceptions. Without requesting relief from the briefing order,
Plaintiff filed its
responses to exceptions together with a motion for leave to exceed the page limit by 15 pages.
Defendant did
not file a response in opposition to that motion and for that reason the motion is granted.
Plaintiff had 90 days
from the filing of Defendant's 13 page exceptions to move for an extension of the page limit, but
instead chose
to file its motion at the same time as its 30 page response. In addition, because Defendant's
exceptions were
limited to the ALJ's findings on only two employees, the factually complex nature of the case
and extensive
record, cited by Plaintiff as justification for its motion, did not support such an extension. In the
future, motions
such as these, not filed sufficiently in advance of a due date with time for the opposing party to
respond before
the passage of the due date, will be disfavored.
4 Westbrook died before the
hearing in
this case, T.228; an OFCCP investigator testified that her impression was that Westbrook was
sincere and did
not believe his charges were false or malicious. T. 406.
121 K. Deliberate false, fraudulent, or malicious statements or action
involving . . .
[CCF], another employee or the public; or other action disloyal to the foundation.
121 R. Any conduct seriously detrimental to patient care, fellow employees,
or [CCF]
operations.
6 Each party and the ALJ relied
on
Hochstadt as supporting their respective positions. We note that several courts have
viewed
Hochstadt as "clearly an exceptional case . . . that must be read narrowly lest
legitimate activism
by employees asserting civil rights be chilled.' Wrightenv. Metropolitan Hospitals,
Inc., 726
F.2d 1346, 1355 (9th Cir. 1984)." Grant v. Hazlett Strip-Casting Corp., 880 F.2d
1564, 1570
(2d Cir. 1989).
7 Westbrook received an overall
performance evaluation of 115 points out of a possible 120, with outstanding ratings on each of
six categories,
on September 15, 1988, after he sent the letter to the Board of Governors and only four days
before being
suspended.
8 CCF argues that Westbrook's
charge
in the July 15 letter that "the stinch [sic] of racism in a workplace rise [sic] this high only
in South
Africa" was inflammatory and he should have known it was false. CCF's Exceptions at 3.
But in
Crown Zellerbach, the court did not find the employee's heated charge that a manager
"has been
the Standard Bearer of the bigoted position of racism at Zellerbach Paper Company," 720
F.2d at 1-11,
sufficient to deprive the letter at issue there of protection.
9 The fact that the ALJ found no
discrimination in the treatment of Jones does not preclude protection for Westbrook's allegations
under the anti-retaliation provision. Rucker, 669 F.2d at 1182.
10 The fact that Seals was
proud of
the photographs on his wall because they depicted famous individuals for whom he had provided
protective
services, T. 1010, and had no intent to harass or discriminate against any employee by exhibiting
the pictures,
does not show that Westbrook's reaction to the picture of Gov. Wallace was unreasonable.
11 By entering into a
stipulation on
relief, CCF demonstrated its good faith intention to comply with the Executive Order and by
including this
provision in the final order we do not intend to question CCF's sincere intent to comply.