OFCCP v. The Bridgeway Inc., 2002-OFC-4 (ALJ Oct. 7, 2003)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue Date: 07 October 2003

CASE NO.: 2002-OFC-00004

IN THE MATTER OF

OFFICE OF FEDERAL CONTRACT COMPLIANCE
PROGRAMS, U.S. DEPARTMENT OF LABOR,
    Plaintiff

    v.

THE BRIDGEWAY, INC., and UNIVERSAL HEALTH
SERVICES, INC.,
    Defendant

   This Consent Decree is entered into between the Plaintiff, United States Department of Labor, Office of Federal Contract Compliance Programs (hereinafter "OFCCP"), and Defendants, The BridgeWay, Inc. and Universal Health Services, Inc. (hereinafter "Defendants"), in resolution of the Administrative Compliant filed by OFCCP pursuant to Executive Order 11246 (30 Fed. Reg. 12319), as amended by Executive Order 11375, 12086 and 13279 (32 Fed. Reg. 14303, 43 Fed. Reg. 46501 and 67 Fed. Reg. 77141, respectively) (hereinafter "Executive Order"), Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 793 (hereinafter "Section 503"), the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act, as amended, 38 U.S.C. § 4212 (hereinafter "VEVRAA"), and the rules and regulations issued pursuant thereto. The Administrative Complaint alleges that Defendants have been part of a single entity that is a Government contractor or subcontractor within the meaning of the Executive Order, Section 503 of the Rehabilitation Act, VEVRAA and the implementing regulations thereunder, and that such Defendants failed to comply with the requirements of the Executive Order, Section 503 of the Rehabilitation Act, VEVRAA and the implementing regulations thereunder by failing to submit a copy of its written Affirmative Action Programs upon OFCCP's request.

   1. The record on the basis of which this Consent Decree is entered shall consist of the Complaint and the Consent Decree.

   2. This Consent Decree shall not become final until it has been signed by the Administrative Law Judge and the effective date of the Decree shall be the date it is signed by the Administrative Law Judge.

   3. This Consent Decree shall be binding upon the Defendants and any and all purchasers, successors, assignees, and/or transferees, and shall have the same force and effect as an order made after a full hearing.

   4. All further procedural steps to contest the binding effect of the Consent Decree, and any right to challenge or contest the obligations entered into in accordance with the agreement contained in this Decree, are waived by the parties.

   5. Subject to the performance by the Defendants of all duties and obligations 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 the Defendants from compliance with the requirements of the Executive Order, Section 503 of the Rehabilitation Act, VEVRAA, or their regulations, not to limit OFCCP's right to review Defendants' compliance with such requirements, subject to the provisions set forth in paragraph twelve (12) below.

   6. Defendants agree 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 in connection with this Decree.

   7. On June 30, 2000, the OFCCP sent the Defendant BridgeWay a letter scheduling a compliance review of the BridgeWay (hereinafter "Scheduling Letter"). In such letter, the OFCCP requested that the BridgeWay submit to the OFCCP a copy of its Affirmative Action Programs and specific support data necessary for the OFCCP to conduct the desk audit phase of its compliance review.

   8. By letter dated July 12, 2000, the Defendant Bridge Way responded to OFCCP's Scheduling Letter by denying that it was a Government contractor or subcontractor within the meaning of the Executive Order, Section 503 of the Rehabilitation Act, VEVRAA and the implementing regulations thereunder.

   9. On August 10, 2000, the OFCCP issued to the Defendant BridgeWay a Notice to Show Cause why enforcement proceedings should not be initiated for the Defendant's failure to submit to the OFCCP copies of its Affirmative Action Programs.

   10. Because voluntary compliance was not achieved following the OFCCP' s issuance of the Notice to Show Cause to the Defendant BridgeWay, on May 15, 2001, Plaintiff filed an Administrative Complaint in this matter.

   11. The Office of Administrative Law Judges shall retain jurisdiction in this case for a period of twelve (12) months from the effective date of this Consent Decree or the conclusion of OFCCP's review of Northwest Texas Healthcare System in Amarillo, Texas (hereinafter "Northwest Texas") and McAllen Medical Center and McAllen Heart Hospital in McAllen, Texas (hereinafter "McAllen Medical Center"), whichever is earlier.

   12. In settlement of the instant matter, and without admitting that the BridgeWay, Inc. and Universal Health Services, Inc. have been or are part of a single entity that is a Government contractor or subcontractor within the meaning of the Executive Order, Section 503 of the Rehabilitation Act, VEVRAA and the implementing regulations thereunder, and without admitting that Universal Health Services, Inc. and/or any of its facilities currently holds a federal contract that would subject it to coverage under the OFCCP's laws and regulations, the Defendants agree to the following: Northwest Texas and McAllen Medical Center shall submit to desk audits of their written Affirmative Action Programs. If an indicia of discrimination is found as a result of the identified desk audits in either or both Northwest Texas or McAllen Medical Center, such entity or entities shall submit to an on-site evaluation by OFCCP. Neither Northwest Texas nor McAllen Medical Center shall allege that the OFCCP improperly selected it for investigation. Further, neither Northwest Texas nor McAllen Medical Center shall challenge OFCCP's jurisdiction.

   13. For twelve (12) months following the effective date of this Consent Decree, OFCCP will send scheduling letters initiating reviews only for those Universal Health Services, Inc. subsidiaries that have direct covered contracts with the Government. This twelve-month grace period applies to both complaint and compliance investigations.

   14. The OFCCP states that it will administratively close its investigation, Case No. CRFF 2506, of the River Parishes Medical Center, a subsidiary of Defendant Universal Health Services, because River Parishes Medical Center does not have a direct covered contract with the government.

   15. Jurisdiction, including the authority to issue any additional, orders or decrees necessary to effectuate the implementation of the provisions of this Consent Decree, is retained by the Office of Administrative Law Judges for a period of twelve (12) months from the date this Consent Decree becomes final. If any motion is pending before the Office of Administrative Law Judges twelve months from the date this Consent Decree becomes final, jurisdiction shall continue beyond twelve (12) months and until such time as the pending motion is finally resolved.

   16. If, at any time during the twelve (12) months following the effective date of this Consent Decree, the OFCCP believes that either or both named Defendants have violated any portion of this Consent Decree, such Defendant 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 such Defendant with fifteen (15) days to respond in writing except where OFCCP alleges that such a delay would result in irreparable injury.

   17. Enforcement proceedings for violation of this Consent Decree may be initiated at any time after the fifteen (15)-day period referred to in Paragraph 15 has elapsed (or sooner, if irreparable injury is alleged) upon filing with the Court a motion for an order of enforcement and/or sanctions. The issues in a hearing on the motion shall relate solely to the issues of the factual and legal claims made in the motion.

   18. Liability for violation of this Consent Decree shall subject Defendant(s) to sanctions set forth in the Executive Order, Section 503 of the Rehabilitation Act, VEVRAA, and their implementing regulations, and other appropriate relief, including contract cancellation.

   19. If an application or motion for an order of enforcement or clarification indicates by signature of counsel that the application or motion is unopposed by the Plaintiff or Defendant(s), as appropriate, the application or motion may be presented to the Court without hearing and the proposed Order may be implemented immediately. If an 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.

   20. Each party agrees to bear its/his own attorneys' fees, costs and other expenses incurred by such party in connection with any stage of the above-referenced proceeding including, but not limited to, attorney's fees which may be available under the Equal Access to Justice Act, as amended.

   21. The Agreement, herein set forth, is hereby approved and shall constitute the final Administrative Order in this case.

   IT IS SO ORDERED this 7th day of October, 2003.

      LARRY W. PRICE
      Administrative Law Judge

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