Rebuttal to Draft Report (06!29!2012)

8/11/2019 Rebuttal to Draft Report (06!29!2012)

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4039 21st Avenue West Suite SS

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Sound TransitUniversity Link Light Rail TBM Tunnel UWS to CHS Link

Contract U220

Rebuttal to Draft Summary Investigative Report

The draft Summary Investigative Report (Draft Report) sets forth three conclusions: (i) the allegedlysubjective hiring and firing processes used by Traylor Frontier-Kemper Joint Venture (TFK) have adisparate impact on African American laborers; (ii) there is sufficient evidence to support the claims ofrace discrimination made by two of the complainants; and (iii) there is evidence that women werediscriminated against on the basis of gender. None of these conclusions is supported by the record orthe applicable law. 1

i. FAILURE TO ADDRESS CENTRAL ISSUE:The Draft Report does not address the centralissue, which is whether the primary reason certain African American laborers have beenrejected or removed is their race as opposed to their work qualifications or performance.

Instead, the Draft Report presumes that all dispatched laborers were qualified andperformed satisfactorily. In doing so, it presumes what, in actuality, must be, andcannot be, proved and ignores the contrary information and documentation submittedby TFK. The latter evidence shows, among other things, that TFK has principally rejectedor removed only those laborers who were dispatched to perform highly-specialized anddangerous work as Group VI Tunnel Miners, the unavailability of qualified personnel atthat level has been a well-documented problem throughout the project, and thedeployment or retention of unqualified or under-performing laborers at that levelcreates intolerable safety risks.

More specifically, the Draft Report is fundamentally flawed for five basic reasons:

ii. FAILURE TO ADDRESS AND APPLY LEGAL STANDARDS:The Draft Report does notaddress the applicable legal standards, but rather sets forth conclusions which do notwithstand scrutiny when the requisite legal analysis is applied. At a minimum, thatanalysis requires critical examination of the very point the Draft Report presumes, i.e.,whether the Laborers who were rejected were qualified for the Group VI Tunnel Minerpositions they were denied, and whether those who were removed were performingsatisfactorily. Applicable law also places the burden of proof on the complainant toprove discrimination has occurred, not on the employer to disprove it. This means thatonce the employer has stated the legitimate reasons for the decisions or processesunder review, there can be a finding of discrimination only if the evidence shows those

reasons are a pretext. There is no such evidence or analysis in the Draft Report. TheDraft Reports presumption of Laborer qualification is tantamount to a presumption ofTFK discrimination. That is inappropriate under the governing legal standards.

1 TFK principally focuses on the allegations of race discrimination because they are the specific (in fact, only)dimension of the Draft Report to which Sound Transit specifically requested a response. (See April 13, 2012correspondence from James Niemer, Sound Transits Senior Legal Counsel.)


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without providing progressive discipline; it accuses TFK of hiring one African Americanlaborer only to perform custodial work, then adds that [t]he employee preferscustodial work to tunnel work.

v. DISREGARD OF EVIDENCE SUPPORTING TFK: Finally , the Draft Report ignores muchanecdotal evidence that further dispels any inference of pretext for discrimination. Forexample, the genuineness of TFKs emphasis on safety is tied directly to its contract,which requires that TFK maintain a safe worksite and reject or remove unfitpersonnel. That same contract provides financial reward for early completion of work,which, when coupled with the scarcity of Group VI Tunnel Miners, makes clear that TFKhad (and has) no incentive to turn away any qualified Laborer, regardless of his or herrace. Further, almost without exception, the same persons who made the hiringdecisions made the firing decisions, which, of course, begs the question, why would theyfire laborers because of their race after hiring them with knowledge of their race?

Stripped of these defects, each of which is addressed below, the record shows that no worker has beendenied or removed from employment based on anything other than a good faith judgment as to his orher qualifications or performance and an overarching concern for safety. TFK has met both its legalobligations and the still higher standards associated with the privilege of serving as a contractor on theSound Transit U220 project.

1. The Draft Report Does Not Address The Central Issue

TFK only rejected or discharged Laborers who, in its judgment, did not possess the qualifications, skills orexperience to safely and satisfactorily perform the necessary work. These two factorsqualificationsand safetyare the bases for the decisions under review. Throughout this tunneling project, theinability of Local 440 to dispatch a sufficient volume of qualified personnel has been a well-documentedissue. The Draft Report fails to meaningfully consider these facts. Instead, at page 7, it states that alldispatched Laborers are presumed to be qualified. The Draft Report presumes away the very issue itis supposed to analyze. In the process, it ignores a large volume of information and documents thatdefeat the very presumption it adopts, including the following.

Sound Transit awarded TFK Contract No. RTA/LR 001-09 to construct tunnels utilizing tunnel boring

machines (TBMs) between two planned transit stations located near the University of Washington andon Capitol Hill, respectively. The project involves (i) the construction of 11,400-foot long, segmentally-lined, twin-bored tunnels using pressurized face techniques, and (ii) the excavation of 16 cross-passagesat various intervals between the bored tunnels using sequential excavation methods.

In early January, 2010, TFKs physical work commenced. The skill set required of the Laborers changedas work progressed. By the fourth quarter of 2010, the nature of the work began to shift from


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supporting subcontractors to directly performing TFKs own scope(s) of work. By the fourth quarter ofthe following year, TFKs scope of work had progressed to cross-passage excavation. These were twofairly distinct development stages. For some trades, each of these new stages in the work requireddifferent or additional skills. For example, journeymen members of the Carpenters Local had to bereplaced by Journeymen Carpenters with certified welding certificates, and Journeymen Laborers had tobe upgraded from General Laborers (Group III) to Miners (Groups V and VI). The latter escalation ofqualifications was necessary because the then-next phase in the project required a particular skill set,which included, for example, open-ground, hand excavation experience and shotcrete experience inboth vertical and horizontal overhead planes.

TFK notified Local 440 of these requirements and directed it to dispatch Laborers accordingly. Noticewas provided orally and in writing. The latter included a Dispatch Request form, which specifically

identified the heightened requirements. Copies are attached as Exhibit A. (A copy was previouslyprovided to the investigator, though it is neither mentioned nor discussed in the Draft Report.) Theoral notices included a meeting held on December 14, 2010 among representatives of TFK and Local440. Through these and similar efforts, TFK clearly advised Local 440 that it needed Laborers whopossessed the following types of experience and skill:

o Mine phone operationo Confined space operationso Cutting and welding operationso Dewatering pump installationso Grout work including mixing, pumping, and clean upo Waterproofing placing and weldingo Pipe installation and testingo Rigging and signalingo Timber and re-timber worko Tugger operationo Airtrack operation and drillingo Diamond drill operationo Shotcrete work, nozzleman and pump operationo Track and switch worko Compressed air (hyperbaric) worko Air tool operations including chipper, breaker/jackhammer, jack legs, drills, rivet buster

o EPB tunnel boring machine work including segment transport and erection, backfill grouting,cutterhead tool changing (including disk cutters weighing 350 lb), rail laying, utilityinstallation, continuous conveyor belt structure installation, and locomotive operations

o Sequential excavation work including spile installation, hand mining and support, shotcretework including placing and troweling, vacuum well installation

o Tunnel concrete work including cleaning preparations, setting reinforcing steel, pumping,screeding, spreading, finishing, and setting and stripping steel and wood forms


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Local 440 had (and continues to have) difficulty locating and dispatching Laborers who meet theselegitimate, job-related requirements. This is fact, not criticism. The type of tunneling and excavationinvolved in the Sound Transit project is highly specialized work that has not been regularly performed inthe recent past in the greater Puget Sound region. The local pool of Laborers with Group V Minerand/or Group VI Tunnel Miner skills and experience is relatively shallow compared to other parts of thecountry. In stretching to meet TFKs needs, Local 440 has dispatched many Laborersminority andnon-minority, male and femalewhom TFK quickly discovered were not qualified. These workers,regardless of race or gender, were turned around when the deficit became evident upon dispatch, ordischarged when it surfaced later through performance. 2

In this line of work, TFK cannot (and will not) accept poor performance or unqualified workers becausethey jeopardize safety, which is a paramount concern. Underground excavation and tunneling occur in

an extraordinarily demanding environment, one that is unfamiliar, tight, dark, dank, artificiallyventilated, and at times unstable. A 35-ton locomotive regularly transports people and materials in andout of the tunnel. The work involves the regular use of heavy machinery, and requires all employees,including Laborers, to work together closely.

3

Against this backdrop, the number of unqualified Laborers being dispatched by Local 440 was troubling.

TFK could not presume that dispatched Laborers were qualified and immediately deploy them. It also ismore difficult and disruptive to remove an unqualified Laborer from the worksite rather than not deploy

Each must depend greatly on the others. Poorperformance and unsafe practices by one threaten the safety of all. And the potential consequences aresevere, not mere cuts and bruises, but major trauma, concussions, broken bones, loss of limbs, and evendeath. TFK is responsible for making every reasonable effort to prevent these outcomes, and tootherwise maintain the safety and well-being of all persons under its charge. Meeting this responsibilityrequires TFK to act early, and to take precautions and preventive measures when possible, rather thanmerely react after workers already have been injured. At an absolute minimum, it requires TFK to make

good faith judgments regarding the qualifications of Laborers before placing them in the tunnel andpotentially in harms way; to require strict adherence to protocol once deployed; and to act swiftly anddecisively if a Laborer who passed initial review subsequently performs poorly. These realities arereflected in TFKs contract. Article 2, Section 2.02 sets forth its responsibilities as Contractor. Theseinclude that TFK shall enforce strict discipline and good order among [our] employees at all times andshall not employ on the Work any unfit person or anyone not skilled in the task assigned to him or her.Of course, TFK also is subject to multiple safety rules and obligations, and corresponding regulatoryoversight and enforcement, under federal, state and local law.

2 The lack of qualifications and poor performance of these workers casts no shadow over the rest of the workforce.The other Laborers and personnel have performed admirably. TFK recognizes, and is grateful for, their individualand collective contributions to the success of this project. Nothing in this document should be construed tosuggest anything to the contrary.3 The investigator never toured the full extent of the tunnel work sites.


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him or her in the first place. By that time, for example, the company already has gone through theeffort, and incurred the expense, of orienting, scheduling, drug testing, introducing and generallyintegrating the worker. Consequently, beginning in roughly late December, 2010, TFK implemented apost-dispatch, pre-deployment interview process to facilitate a more accurate, early assessment ofwhether the Laborers dispatched as Group V Miners or Group VI Tunnel Miners truly possess therequisite skills and experience. The process involves two steps. The Laborer completes a pre-printedform, indicating which among a laundry list of desired and/or required skills the laborer believes he orshe possesses. That self-assessment, including the specific listed skills, then becomes the springboardfor an interview to further assess qualifications. A sample checklist is attached as Exhibit B. (All of thecompleted checklists were made available to the investigator.)

Even with this reasonable mechanism in place, Local 440 continued to dispatch unqualified Laborers

making it difficult for TFK to maintain adequate staffing. By letters dated September 19, 2011, January5, 2012, January 9, 2012, and February 2, 2012, TFK raised these issues with Local 440 and the SeattleTunnel and Rail Team. Copies of these letters are attached as Exhibits C-F, respectively, and werepreviously provided to the investigator, though they are not mentioned in the Draft Report. TFKsSeptember 19, 2011 correspondence addressed a specific situation where Local 440 was unable tosatisfy a call for three Group VI Tunnel Miners. The January 5 and 9, 2012, letters discussed the general,on-going unavailability of qualified Group VI Tunnel Miners and cited a specific circumstance onDecember 23, 2011, where Local 440 was unable to satisfy a call for 20 Miners, specifically 15 Group VIMiners and five Shifters. Local 440 was able to supply only eight Group VI Tunnel Miners, less than halfthe number necessary at the time, together with one Apprentice and two Shifters. To make matters

worse, several of those dispatched were not, in fact, qualified. Both letters noted that, due to thepersistent unavailability of qualified personnel, TFK likely soon would find it necessary to submit arequest for a time extension, an equitable adjustment in Contract price, and/or extended overheadcosts. The February 2, 2012, letter was in follow-up to TFKs January correspondence. It noted that bythat date, roughly six weeks since the December 23, 2011, call for 20 qualified Group VI Tunnel Minersand Shifters, less than 20% ha[d] been dispatched. It repeated that not having the requiredworkforce to complete the cross-passage work will impact our critical path schedule as well our cost.

In addition to repeatedly pressing Local 440, TFK undertook other steps to try to locate the necessarynumber of qualified personnel. These included having Local 440 issue a national call for certified

shotcrete hands (which remains in place to this day); assuming the full cost of having Laborers re-certified through the American Concrete Institute; implementing a program to self-certify shotcreteLaborers in an effort to avoid the delay of that traditional certification process; contacting unions andlocals in Sacramento, Los Angeles, and San Diego regarding qualified Laborers who might be interestedin this project; recruiting and/or requesting specific Laborers, including at least one woman and oneAfrican American (who was hired as a Foreman and remains in TFKs employ to this day); andapproaching Sound Transit regarding the problem. See Exhibit G, email of January 6, 2012. Local 440


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undertook remedial steps, as well. For example, effective January, 2011, Local 440 created the Group VITunnel Miner category (Group V Miner previously had been the highest level) and tied it directly to theattainment of additional training, which Local 440 financed by way of a small surcharge applied to thehourly rates of its members.

This is the larger context within which (out of hundreds of workers employed on this project) sixLaborers filed complaints of discrimination with the EEOC. Five alleged race discrimination and onealleged gender discrimination. None of these complainants was turned around at the interview stage.Fully aware of their race and gender, TFK hired all of them. In response to each charge, TFK submitteddetailed position statements, supported by contemporaneous documentation. These submissionsexplained the reasons for each decision under challenge and set forth additional facts that furtherdispelled any inference of discrimination. TFK provided these submissions to the investigator for her

review. Read together, they are central to TFKs position. Yet, they are ignored in the Draft Report (and,therefore, presumably in the underlying investigation, as well). In fact, the Draft Report contains asingle reference to the responses, which is found at page 5. Remarkably, that reference makes nomention of the abundance of information in those responses, but instead dismissively notes one pieceof information allegedly absent from them: the EEOC responses prepared by TFK for 4 of the 6 EEOCcomplainants did not reference formal discipline. It is disappointing that the Draft Report finds thissingle data point, which is not even relevant, to be the only piece of information worthy of mention.Copies of TFKs responses, with the names of the complainants redacted, are attached hereto as ExhibitsH-L. Here, TFK summarizes the information in them. 4

Complainant A, an African American, was dispatched and hired on or about June 2,2011, as a Group V Miner. He was assigned to the graveyard shift as part of a four-person crew (two Caucasians, one person of Hispanic descent, and Complainant A). Heperformed poorly. TFK repeatedly counseled and warned him, stressing the importanceof him being able to pull his weight and work as part of a team, particularly from asafety perspective. After another complaint from a crew member, TFK moved him to theday shift and had the Local 440 business agent speak to him about his performance andlevel of motivation. He continued to perform poorly, prompting more complaints fromco-workers. On July 8, 2011, after four weeks of effort by TFK and opportunity forComplainant A, TFK discharged him.

Complainant B, an African American, was dispatched and hired on or about July 28,2011. TFK assigned him to a tunnel conveyor. On at least two occasions, a fellow crewmember observed him place his hand on the moving conveyor belt. TFK admonished

4 TFK has not included copies of all of the exhibits to each response simply because of their volume. However,these supporting documents certainly will be made available upon Sound Transits request.


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him and explained that he was risking serious injury. Over the next week, TFK counseledand warned him additional times for unsafe behavior. The crew member who hadreported that Complainant B was attempting to hold or grip the conveyor belt finallytold the crew supervisor that Complainant B was an accident waiting to happen, andhe could no longer work with him. TFK assigned Complainant B to a different crew.Problems continued. At times, his work was so poor the crew had to re-do it. In afurther attempt to retain him, TFK next assigned him to a two-person crew that wasresponsible for attaching clips to the bag-line for ventilation. Complainant Bs specifictask was to keep a look out for the locomotive and warn the second crew memberwhen it was coming. Twice he failed to do so. On August 19, 2011, after nearly fourweeks of effort by TFK, several complaints and two reassignments, TFK dischargedComplainant B.

Complainant C, an African American, was hired in December, 2010, as a Group V Minerreporting to an African American foreman. He lasted four days. He was assigned to a13-person crew, which included one Hispanic laborer, two African Americans, one AsianAmerican, and one Native American. Two co-workers complained that he was notperforming his share of the work and asked not to have to continue working with him.The crew supervisor observed him take an inordinate amount of time to complete tasks;on two occasions, he was slowed in part because he had misplaced his tool belt. On orabout December 30, TFK discharged him.

Complainant D, an African American, was dispatched and hired on or about November10, 2010 as a Group III General Laborer. TFK assigned him to a 16-person crew, whichincluded two other persons of color. He performed satisfactorily. On or aboutDecember 8, 2010, TFK discharged him as a part of a larger reduction in force, becausethe project had progressed to a stage requiring Group V Miner and Group VI TunnelMiner skills and experience, which he did not possess.

Complainant E, an African American, was one of five Group V Miners who weredispatched on or about July 8, 2011. TFK had specifically requested miners who hadverified shotcrete experience. Only two did. Complainant E acknowledged he had onlyvertical, but no horizontal, shotcrete experience. TFK hired him anyway. It assigned himto an eight-person crew on the graveyard shift. The other crew members included threeCaucasians, one Native American and three laborers of Hispanic descent. To hissupervisors observation, Complainant E spent a great deal of time lobbying for ashotcrete position to the detriment of his actual assignment. At the time, walkways hadnot yet been installed in the tunnels. One day, TFK announced no foot traffic wasallowed in the tunnel, because the thirty-five ton locomotive with limited visibility


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would be traveling through it. This presented significant risk of substantial harm toanyone on the tracks. A worker on another project in Seattle, with a differentcontractor, had been killed under similar circumstances. Complainant E violated thedirective, walking out of the tunnel (to use the restroom) and then walking back into it.He acknowledged he understood the directive and did not know the location of thelocomotive. This reflected an unacceptable disregard for safety. On or about July 20,2011, TFK discharged him.

Again, none of this detail is addressed in the Draft Report.

2. The Draft Report Contains No Legal Analysis.

The applicable legal standards also are ignored in the Draft Report. 5 The Draft Report references threetheories, namely, hostile work environment, disparate treatment, and disparate impact. It concludes(correctly) that there is no evidence of a hostile environment. 6

A disparate impact claim challenges employment practices that are facially neutral in their treatment ofdifferent groups but that fall more harshly on one group than another and cannot be justified bybusiness necessity. Intl Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977). It

requires proof that a specific employment practice has caused a disproportionately adverse impact on aprotected group, and the causal connection rests on the protected trait. Wards Cove Packing Co., Inc. v.Antonio, 490 U.S. 642, 656-658 (1989). It does not require evidence of an actual intent to discriminate.Id. It focuses on effects, not intentions. By contrast, disparate treatment claims require proof by apreponderance of the evidence that a protected trait was a substantial or motivating factor behind thedecision being challenged. Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). They requireevidence that the decision-makers are, in fact, biased against persons who have the protected trait. Id.

That leaves disparate treatment anddisparate impact. The Draft Report concludes that TFKs hiring and firing processes have a disparateimpact on laborers based on race, and that there was sufficient evidence to support the claims of racediscrimination by two of the complainants. TFK addresses the legal principles behind each of thesetheories here, and applies them in the sections that follow.

5

This is another significant omission. The Draft Report is essentially a legal document, was prepared by aninvestigator who is a lawyer, addresses alleged violation of legal rights, and presents controlling issues that arelegal in nature. Those issues are not to be addressed in a vacuum or against the protean concept of fairness. Itsdisposition is governed by well-settled legal principles, which should be identified and discussed.6 At page 5, the Draft Report refers to the potential existence of a pattern of discrimination against AfricanAmerican workers. If the word pattern is intended to refer to the pattern or practice legal theory, it ismisplaced. Circuit courts have consistently concluded that the pattern-or-practice method of proof ofdiscrimination under Title VII is not available in private, non-class action lawsuits. Walech v. Target Corporation,2012 WL 1068068 (W.D.Wash.).


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Both claims involve a so-called shifting burdens analysis. In the context of a disparate treatment claim,the complainant must first establish a prima facie case through evidence that he or she is a member of aprotected group, was qualified for a particular position or was performing it satisfactorily, andnevertheless was rejected or removed under circumstances that give rise to a reasonable inference thatthe protected trait was a substantial or motivating factor behind the decision. Id. If the complainantsatisfies this burden, the burden of production, not persuasion, shifts to the employer. Its burden issatisfied if it simply explains what [it] has done or produces evidence of legitimate non-discriminatoryreasons. Texas Dept of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981). To establish a valid claim,the complainant must then prove that the employers stated reasons are a pretext for unlawfuldiscrimination. Id.

Similarly, in the context of a disparate impact analysis, the complainants must first establish a prima

facie case via proof of the elements described above. If a prima facie case is established, the employernevertheless prevails if it shows that the challenged practice is supported by business necessity.Watson, 487 U.S. at 997-999. This does not require proof that the challenged practice is essential orindispensable, only that it serves, in a significant way, the legitimate employment goals of theemployer. Wards Cove Packing, 490 U.S. at 659-661. If the employer meets this burden, thecomplainant then must prove the existence of an alternative selection device that is equally effective forthe employers stated purposes but that does not disproportionately impact the protected group. Id .That evidence, if produced, is tantamount to demonstrating that the employers test was a pretext fordiscrimination. Id.

Under both theories, the burden of proof always remains with the complainant. Both theories requirecomprehensive, fact-specific analyses which reject conclusory assertions in favor of rigorousexamination of the evidence, principally the facts supporting the employers stated reasons for itsactions, on the one hand, and the complainants evidence of pretext, on the other. This is precisely thedepth of review that is conspicuously absent from the Draft Report. Once conducted, it is clear there isno viable claim under either theory because discrimination has not occurred.

3. The Statistical Analysis Only Considers Race

The statistical evidence in the Draft Report is offered in connection with both theories, particularlydisparate impact, but it supports neither. Review of that evidence begins with the premise thatstatistics are to be approached with caution, given their inherently slippery nature, Wilkins v.University of Houston, 654 F.2d 388 (5 th Cir. 1981), and the vitally important fact that statisticallysignificant results are not necessarily legally significant results, Gay v. Waiters & Dairy LunchmensUnion, 694 F.2d 531, 553 (9 th Cir. 1982). The latter distinction is important because statisticsdemonstrating that chance is not the more likely explanation are not by themselves sufficient to


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demonstrate that race is the more likely explanation. Id. (Emphasis in original.) As the Supreme Courtexplains:

It is completely unrealistic to assume that unlawful discrimination is the sole cause ofpeople failing to gravitate to jobs and employers in accord with the laws of chance. Itwould be equally unrealistic to suppose that employers can eliminate, or discover orexplain, the myriad of innocent causes that may lead to statistical imbalances in thecomposition of their work forces.

Watson, 487 U.S. at 992. The Supreme Court further cautions that statistics are not irrefutable; theycome in infinite variety and, like any other kind of evidence, they may be rebutted. In short, theirusefulness depends on all the surrounding facts and circumstances. Intl Bhd. Of Teamsters, 431 U.S. at340. Consequently, the complainants burden in establishing a prima facie case goes beyond the needto show that there are statistical disparities in the employers workforce. Watson, 487 U.S. at 992.Rather, as noted above, [c]ausation must be proved, which means that the disparities must be of akind and degree sufficient to show that the practice in question has caused the exclusion of applicantsfor jobs or promotions because of their membership in a protected group. Id. The evidence must alsoisolate and identify the specific practice that is responsible for the disparate impact and must do morethan merely point to a generalized policy that leads to such impact. Smith v. City of Jackson, 544 U.S.228, 241 (2005). This burden is not a trivial one and serves to avoid holding employers liable for themyriad of innocent causes that may lead to statistical imbalances. Meachum v. Knolls Atomic PowerLab., 554 U.S. 84 (2008). And, of course, the data upon which the statistics rest must be reliable.

The statistical evidence upon which the Draft Report relies falls short of these standards. It reportssome correlation between race and adverse outcome (i.e., turn around or discharge), but nothing more.It makes no effort to determine the likely causes of that correlation. The actual statistical report onwhich the Draft Report relies concludes by squarely acknowledging this fact:

A limitation of the study is that the only potentially causative factor studied is ethnicity.Qualifications and other factors were not considered.

Instead, the statistical analysis makes the same baseless presumption that anchors the larger DraftReport, which is that all dispatched Laborers were qualified and performed well. As noted above,disparate impact claims require evidence of causation, not just correlation. This requirement makessense in order to avoid the logical fallacy of assuming that correlation necessarily implies causation.Proof causation, in turn, requires that the analysis take into account the major variables, which, here,include position, qualifications and performance. As the Supreme Court has explained, statistics basedon an applicant pool containing individuals lacking minimal qualifications for the job would be of little


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probative value. Watson, 487 U.S. at 996. Absent additional analysis, the correlation that appears inthe Draft Report is of little legal significance. See, e.g., Guz v. Bechtel National, Inc., 24 Cal. 4 th 317, 369(2000) (Any inference that Guzs raw age comparisons indicate age-based discrimination is furtherblurred by the weak evidence that the workers retained or hired over him were similar or comparableexcept for their dates of birth); Bickerstaff v. Vassar College, 196 F.3d 435, 449 (2d Cir. 1999) (in contextof race and gender discrimination claims, regression analysis inadmissible because it omitted the majorvariables, including experience and performance); EEOC v. Sears, Roebuck & Co., 628 F.Supp. 1264(N.D.Ill. 1986), affd, 839 F.2d 302 (7 th Cir. 1988), cert. denied, 111 S.Ct. 370 (1990)(statistical analysis ofpromotion decisions in gender case flawed because rests on unproven assumption of no differences ininterests and qualifications of men and women); Stockwell v. City and County of San Francisco, 2011 WL4803505 (N.D.Cal.)(rejecting statistical analysis in support of class certification of age discriminationchallenge to promotion practices because it failed to address potential independent variables includingtest scores, job performance, seniority and experience); Valentino v. United States Postal Service , 511F.Supp. 917 (D.D.C. 1981)(rejecting analysis in gender discrimination promotion case because made noeffort to capture other relevant factors such as occupation, age, time in level, etc.). 7

The statistical analysis referenced in the Draft Report also fails to distinguish between job categories.TFK retained a statistician to go that step further. A copy of his full report is attached as Exhibit M. Hecategorized the workers among four groups, specifically, Apprentices, Groups III and IV, Group V, andGroup VI. Within the Apprentices category and Groups III and IV, there is no correlation between raceand discharge at all. Within Group V, there is a modest correlation, but under the most commonly usedmeasure it is not statistically significant. Only within the category of Group VI Tunnel Miners is there astatistically significant correlation.

These findings are inconsistent with the conclusions in the Draft Report. One would reasonably expectany institutional bias or disparate impact to manifest itself across all labor groups. But that has notoccurred. Instead, the statistical anomaly is specific to Laborers classified or dispatched as Group VITunnel Minters, which is consistent with TFKs claim that it has had particular difficulty locating qualifiedworkers at that level. Other data are consistent with that claim, as well. For example, nearly 90% of allLaborers TFK dismissed for performance issues fall within Groups V and VI, again, precisely the levelswhere the other evidence shows qualified personnel were fewer in number.

7 To be clear, TFK does not contend that the statistical analysis must account for every conceivable variable; thatclearly is contrary to applicable law. Bozemore v. Friday, 478 U.S. 385, 400 (1986). But it must account for themajor variables, which it does not. As a practical matter, doing so may not be possible. The primary variable inquestion is the qualifications of the Laborers. To the extent those qualifications are not definitively establishedthrough concrete, readily verifiable means, such as the possession of a specific degree, they do not lendthemselves to numerical analysis. That is the situation here. Other than the shotcrete certification, Group V Minerand VI Tunnel Miner status are not conferred through the completion of a specific program or curriculum or theissuance of a certificate or diploma.


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The report gives these words connotations they do not support. TFK appreciates that there are phraseswidely (and justifiably) viewed as thinly veiled code for race-based stereotypes. The words highlightedin the Draft Report simply are not among them. Stating that an employee works slowly, cannot graspfundamentals, or is an accident waiting to happen is not remotely suggestive of race bias. The courtsagree. See, e.g., Clay v. Interst. Natl Corp., 900 F.Supp. 981, 991-92 (N.D.Ill. 1995), affd, 124 F.3d 203(1997) (remark, you people are causing problems, was hopelessly ambiguous, and not probative ofunlawful animus); de la Cruz v. New York City Hum. Res. Admin. Dept., 884 F.Supp. 112, 115-16 (S.D.N.Y.1995), affd, 82 F.2d 16 (2 nd Cir. 1996) (claim rejected, despite employers stated opinions that plaintiffswork problems were cultural and plaintiff and Hispanic supervisor will understand each otherbetter); EEOC v. Clay Printing Co., 955 F.2d 936 (4 th Cir. 1992)(deadwood, at best, refers toseniority/productivity, not age); Kishaba v. Hilton Hotels Corp., 737 F.Supp. 549, 576 (D.Hawaii 1990),affd, 936 F.2d 578 (9 th Cir. 1991) (no inference of race bias from you people statements because notdiscriminatory and did not single out particular race); Randle v. LaSalle Telecommunications, Inc. , 876F.2d 563, 570 (7 th Cir. 1989) (statements that plaintiffs contract meant nothing to [supervisor], it was just a piece of paper, and [she] should be grateful for whatever it is that [she] get[s] not probative ofrace bias).

The absence of any racial dimension to these words is further reflected in the undisputed fact that TFKmanagers have used the same terms to describe concerns with the performance of non-minorityworkers. At page 8, immediately after declaring the above-referenced phrases are reflective of racebias, the Draft Report expressly acknowledges that similar terms were used to describe two Caucasianemployees who were discharged. As a matter of both fact and law, TFKs periodic use of these terms

does not support the inference of unlawful animus the Draft Report posits.

The Draft Reports reliance on the concept of progressive discipline is equally misplaced. At page 5, itnotes that two complainants were discharged without prior progressive discipline (which, of course,means that the others did receive that process). At page 7, the Draft Report adds that the disciplineprocess used is contrary to policy in Traylor Hourly Employee Handbook. The first statement is madewithout context, and the second is flat wrong. The statements serve no discernible purpose other thanto misleadingly imply that TFK acted inappropriately by denying minority workers progressive disciplinethat was otherwise required or promised and afforded to Caucasian Laborers. This implication is false.TFK had no contractual or legal obligation to provide progressive discipline. Section 3.13 of the Hourly

Employee Handbook, titled Discipline Procedure, begins with the express statement that progressivediscipline is not promised and discharge may occur immediately at the companys discretion:

Not all steps in the progressive discipline procedure are followed in every case.Depending on the severity of the offense, some steps may be skipped and an employeeterminated immediately.


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Further, in exercising that discretion, TFK has, in fact, provided some Laborersminority and non-minority alikewith reassignment, feedback and additional chances before finally removing them, i.e.,a progressive process. The Draft Report acknowledges this fact, albeit grudgingly and without attachingsignificance. At page 4, it notes: Some individuals may have received some feedback regarding themanner in which they performed the job. At page 5, it adds that with respect to one complainant,[t]here is evidence that he was coached. ) There also is no evidence that TFK has exercised its right todischarge without prior discipline only with respect to minority Laborers. TFK has discharged many non-minority Laborers in the same fashion. 9

As further anecdotal evidence of race bias, the Draft Report repeatedly asserts that TFKs hire and firedecisions, and particularly the post-dispatch interview process, are subjective, unstructured andlargely undocumented. Again, the assertion fails factually and legally. Before any interviews started,the Laborer reviews a pre-printed checklist of specific skills, experience and knowledge TFK deemednecessary for the work to be performed safely and satisfactorily. The Laborer completes the form him-or herself, essentially providing a self-assessment of qualifications. All dispatched Laborers, regardlessof race, are required to complete the form. The form then becomes the basis, the frame of reference,for the interview. The entire process is structured and directed at objectively determining the Laborersactual qualifications. The checklists help to standardize the self-reporting process and to ensure that allLaborers are being assessed against the same set of objective criteria. Further, even if the process was

entirely subjective, as a matter of well-settled law that fact does not, and may not, support an inferenceof discrimination. The United States Supreme Court has expressly stated, for example, that [a]nemployers policy of leaving promotion decisions to the unchecked discretion of lower-level supervisorsshould itself raise no inference of discrimination. Watson , 487 U.S. at 990. See also Denney v. City ofAlbany, 247 F.3d 1172, 1186 (11 th Cir. 2001)(It is inconceivable that Congress intended anti-

Finally, the Draft Report ignores the fact that TFK has noobligation to slow work on the project and jeopardize the safety of other workers to afford a muchsmaller number of Laborers the time and opportunity to develop skills they were reasonably required tohold in the first place.

9 The same conclusion applies even if progressive discipline had been required, because there must be evidencethat ties the claimed procedural irregularity to the complainants race, and here there is none. As one federalcourt has stated in the hire context: [E]ven if a court suspects that a job applicant was victimized by poorselection procedures, it may not second guess an employers personnel decision absent demonstrably

discriminatory motive. Id. at 1183, quoting, Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982). See alsoHarris v. Niagara Mohawk Power Corp., 252 F.3d 592, 599 (2 nd Cir. 2001) (mere fact that an employer failed tofollow its own internal procedures does not necessarily suggest the employer was motivated by illegaldiscriminatory intent), quoting Raudle v. City of Aurora, 69 F.3d 441, 454 (10 th Cir. 1995); Chock v. NorthwestAirlines, 113 F.3d 861, 864-65 (8 th Cir. 1997) (no claim where employer did not enforce rule requiring candidates tocomplete one year in current position before promotion); United Assn of Black Landscapers v. City of Milwaukee,916 F.2d 1261, 1266-67 (7 th Cir. 1990) (no inference of bias where employer discarded test on which African-American had highest score and required re-examination of all applicants).


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discrimination statutes to deprive an employer of the ability to rely on important criteria in itsemployment decisions merely because those criteria are only capable of subjective evaluation.). Finally,the interview process is not nearly as unusual as the Draft Report suggests. TFK uses a similar processwith respect to dispatched Electricians and Operators. The former are required to pass a written testand the latter are interviewed regarding their knowledge of, and experience with, the specific machineryto which they will be assigned (e.g., cranes, loaders, TBMs, and locomotives). Notably, there is no claimor evidence that either of these processes has caused, contributed to, or facilitated discrimination basedon race or any other protected characteristic, despite their substantial similarity to the post-dispatchinterviews of Laborers dispatched for Group V Miner and Group VI Tunnel Miner work.

The Draft Report contains an equal number of statements of opinion and purported fact that areinaccurate and/or irrelevant. Consider the many references to retaliation. The first paragraph of the

Investigation Process section is devoted to this concept, even though there is no retaliation claimunder investigation. It states that some hourly employees were unusually concerned aboutretaliation, that the concern extended to future projects, and that it even affected the investigatorsdecisions regarding the structure of [her] investigation. Similarly, at page 8, the Draft Report refers tothe unusual fear of employee witnesses. These conclusory statements, viewed individually orcollectively, are fraught with negative implications for which no supporting detail is offered. Theircollective thrust is the false impression that TFK has created a work environment of fear andintimidation. By design or default, they lend visceral support to the core complaints of discrimination.That should not be permitted. To TFKs knowledge, no employee who has participated in this reviewprocess has complained of retaliation. Nor has any employee refused to speak with the investigator for

fear of retaliation (or any other reason, for that matter). And TFK has undertaken significant precautionsto avoid even the appearance of retaliation. TFK did not participate in the interview process, did nothave a representative present during the interviews, and did not receive any witness statement or otherinformation about what any witness said. The point of this non-participation (all of which wascommunicated to the investigator, but none of which is found in the Draft Report) was to assureemployees that TFK would abide by its policy and commitment that there will be no retaliation. Finally,the undeniable fact is that expressions of concern regarding potential retaliation are the rule, not theexception. They are an unfortunate but understandable dimension of nearly every investigation. Onewould expect a seasoned investigator to make this type of experience-based, tempering observation,and then turn a critical eye to ferreting out the basis for the stated concern, rather than adopt andrepeat it at face value. 10

10 Because the Draft Report offers no supporting detail, the false implication is nearly immune to more specificrebuttal. The unanswered questions include: How many employees expressed this concern? What did they say?What is their concern based on? Do any of them claim that any representative of TFK said or did anything thatcaused or contributed to the concern, or does it trace to a generalized fear about becoming involved? How didtheir expressions of concern affect the investigators decisions regarding the structure of the investigation? Did


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that male witnesses and female witnesses complained on behalf of some women and/or womengenerally. Within its ten pages of verbiage, the Draft Report offers three bullet points in support of thefinding. Each is inaccurate and/or incomplete, and the Draft Report expressly states that two are noteven part of the investigation (which, of course, raises the question why there are referenced at all).Specifically, the Draft Report misquotes and misinterprets a TFK managers personal observation that itmeet the female Apprentice goal because the demands of working in the tunnel are such that fewwomen appear to be interested in it, and transforms it into an alleged expression gender bias. Second,the Draft Report refers to an unidentified female Laborer who allegedly was turned around becauseshe did not look capable of performing the work for which she was dispatched, but who was notincluded in the investigation because it was outside the scope. If the situation was not investigated,which is clear, then it should not be referenced in the report, it should not be described as statement ofestablished fact, and TFK should not be required to respond unless and until the investigator firstdetermines that it has some basis. 13

At bottom, the finding of gender discrimination essentially rests on one or more uninitiated, informalcomplaints by proxy, made by an unknown number of unidentified persons on behalf of an unknownnumber of other unidentified persons (none of whom felt strongly enough to complain themselves) andbased on unidentified allegations about unidentified persons and events. At the same time, it ignores

many other contrary facts, including, for example, that TFK currently employs 3 female Laborers and 7females total; the pool of qualified female craftsmen, including Laborers, is far smaller than the pool ofqualified men in those trades; the pool of available female Group V Miners and Group VI Tunnel Minersis even smaller; and TFK has recruited or requested specific female Laborers, and specifically requestedthe unions to dispatch more female workers in general.

Finally, it refers to a female Electrician who allegedly had issueswith TFK that were not initially addressed by TFK. This female Electrician is not a TFK employee. Noris the person who allegedly harassed her. Both are employees of one of the project subcontractors,namely, Tunnel Electric, Inc. And TFK never knew she had any issues before reading the Draft Reportbecause she never disclosed them to TFK, a fact that TFK confirmed directly with the female Electrician.

7. Conclusion.

In the final analysis, the only thing TFK is guilty of is insisting on fully qualified Laborers to maintain thequality and timeliness of its work and, more importantly, the safety of its personnel. TFK is deeplyfrustrated by a Draft Report that gives these fundamental considerations short shrift, while offering atangle of speculation and conclusory assertions that obscure rather than elucidate. TFK favorstransparency and has participated in this review process accordingly. But TFK must insist on atransparent assessment in return, rather than the opaqueness that characterizes the Draft Report.

13 TFK assumes this female Laborer is the female who filed the EEOC charge referenced earlier in the Draft Reportand, again, specifically excluded from the underlying investigation.


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APPENDIX A

Additional Unsubstantiated Opinions and Assertions

Assertion/Opinion: Termination decisions reviewed by MFR were not supported by supervisornotes or other comparable records. Termination paperwork currently used by TFK is limited to achecked box on a form that offers possible reasons for termination. Draft Report at p. 3.

Fact: All termination decisions under challenge that were made at the point of initial dispatchare documented in (i) self-assessment, skills checklists completed by the dispatched Laborer, and (ii) thehandwritten notes of the TFK manager who subsequently interviewed the dispatched laborer using thatself-assessment as a frame of reference. All of these completed checklists and handwritten notes wereprovided to the investigator. There also is documentation that relates to, and supports, the decisions toterminate the employment of certain Laborers after they commenced active employment. It, too, waspreviously provided to the investigator. In any event, an absence of documentation is not evidence ofdiscrimination.

Assertion/Opinion: Mr. Dore used a generic checklist which enumerated the fulllist of possible skills a group V or VI miner/tunneler might need regardless of whether itwas specifically related to the job for which he was hiring. Draft Report at p. 4.

Fact: The checklist is tailored to the specific work at issue. It identifies tasks and skills thateither were directly required to be performed, or clearly analogous. This is evident from even a cursory

reading of the document. For example, it identifies mine phone operation, confined space operations,shotcrete work, nozzlemen and pump operation, EPB tunnel boring machine work, sequentialexcavation work and tunnel concrete work. TFK never turned around or dismissed a laborer based ona skill or task that was not job-related, and the Draft Report sets forth no evidence to the contrary.

Assertion/Opinion: TFKs hiring process for laborers, which includes interviewsconducted primarily by the U-220 Superintendent, is subjective, contrary to dispatchhiring hall rules and atypical for Puget Sound contractors. Puget Sound laborers aregenerally dispatched and presumed to be qualified to perform the work. Othercontractors put laborers to work after drug testing and orientation without conductingan interview. Draft Report at p. 7.

Fact: As noted above, the interview process is structured and focused on objective criteria.Further, TFK itself put laborers to work after drug testing and orientation without conducting aninterview, and presumed they were qualified to perform the work, until it became painfully evidentthat they were not. Only after that fact became apparent did TFK adopt the interview process. And itdid so with Local 440s knowledge. It hid nothing. The process does not violate any contractual


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provision or hiring hall rules. Local 440 has made no such complaint, by way of grievance or any othermechanism.

Assertion/Opinion: The lack of available documentation, the limited access to witnesses, andthe unusual fear of employee witnesses made it impossible to compare treatment of similarly-situated Caucasian employees to the treatment of [four of the] complainants. Draft Report atp. 8.

Fact: There were no limitations on the investigators access to witnesses. The Draft Report failsto acknowledge the absolute cooperation of TFK in the investigation process. TFK adjusted workerschedules to accommodate the investigators access to witnesses. If there was any limitation on access,it was certainly not because of anything done or not done by TFK. (The references to fear and

documentation are addressed elsewhere in this response.)

Assertion/Opinion: Certain claimants likely were subjected to discrimination, othersmay have been, and with respect to still others there is some evidence ofdiscrimination. Draft Report at p. 10.

Fact: None of these statements, particularly the latter two, are grounded in the applicable lawor otherwise meaningful. The question is not whether discrimination may have occurred, or whetherthere is some evidence that could be interpreted that way. That much could have been said withoutthe expense and effort of an investigation. The investigation commenced in the first place because, atleast from the perspective of the complainants, there was some evidence that discrimination may

have occurred. The point of the investigation is to dig deeper, to collect and marshal the evidence, tolook beyond the surface of opinions and supposition and assess whether they have basis in fact, andultimately render a reasoned judgment whether, based on the standard of a preponderance of theevidence, discrimination has in fact occurred. If there is only some evidence or the most that can besaid is that discrimination may have occurred, the preponderance standard is not met and the claimmust be rejected.

Assertion/Opinion: Several witnesses said environment improved after site meetingwith Michael Traylor (TFK owner) held after initiation of this investigation. DraftReport at p. 8.

Fact: The statement seems entirely out of place since the Draft Report concludes thatthe work environment was not hostile in the first place. Further, the statement misleadinglyimplies that a purpose of the site meeting was to address EEO issues. In point of fact, themeeting had nothing to do with those issues. It was called to address safety concerns, toprovide the owner an opportunity to acknowledge certain then-recent accidents and injuriesand personally affirm TFKs corresponding commitment to workplace safety. (The investigator


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Documents

Rebuttal to Draft Report (06!29!2012)