Case 1:19-cv-02465-ADC Document 1 Filed 08/27/19 Page 1 of 7

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

v.

)

)

BALTIMORE COUNTY,

)

MARYLAND

)

)

)

Defendant.

)

____________________________________)

Civil Action No.: 1:19-cv-02465

COMPLAINT

Plaintiff, the United States of America (“United States”), alleges:

1. This action is brought pursuant to 42 U.S.C. § 2000e-6(a) to enforce the

provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as

amended (“Title VII”).

2. All conditions precedent to the filing of suit have been satisfied.

JURISDICTION AND VENUE

3. This Court has jurisdiction of this action under 42 U.S.C. § 2000e-6(b) and 28

U.S.C. §§ 1331, 1343(a)(3), and 1345.

4. Venue is proper in the United States District Court for the District of Maryland

pursuant to 28 U.S.C. § 1391 because Defendant Baltimore County, Maryland (“Baltimore

County”) and its agent, the Baltimore County Police Department (“BCPD”), are located in

this judicial district and all or a substantial part of the acts or omissions giving rise to this

cause of action took place in this judicial district.

PARTIES

5. Plaintiff is the United States of America.

Case 1:19-cv-02465-ADC Document 1 Filed 08/27/19 Page 2 of 7
6. Baltimore County is a governmental entity and/or political subdivision created pursuant to the laws of the state of Maryland.
7. Baltimore County is a “person” within the meaning of 42 U.S.C. § 2000e(a) and an “employer” within the meaning of 42 U.S.C. § 2000e(b).
STATEMENT OF FACTS A. The Selection Process for BCPD Entry-Level Police Officers and Police Cadets 8. Baltimore County maintains the BCPD and, through it, employs police officers and police cadets who, among other things, are responsible for protecting individuals and property in Baltimore County. 9. Baltimore County is responsible for the recruitment and hiring of BCPD entrylevel police officers and police cadets. 10. Baltimore County is responsible for establishing the terms, conditions, and other practices which bear upon the selection and employment of BCPD entry-level police officers and police cadets. 11. Baltimore County has administered and used a multiple-choice written examination in the screening and selection of applicants for hire into the BCPD entry-level police officer and police cadet positions. 12. Applicants for BCPD entry-level police officer and police cadet positions must successfully obtain a passing score on a multiple-choice written examination. 13. Applicants who fail the written exam are not eligible to continue in the BCPD multi-stage selection process and not hired as BCPD entry-level police officers or police cadets.
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B. The Challenged Employment Practices 14. Since January 1, 2013, Baltimore County has administered and used at least three different versions of the written exam in the hiring process for BCPD entry-level police officer and police cadet positions. Each version was developed by the Office of Human Resources of the Baltimore County Government. 15. Baltimore County administered and used one version of the written exam from 2009 to 2013 (“2009 Exam”). The 2009 Exam consisted of 85 questions divided into components identified as reading comprehension (15 questions), vocabulary (15 questions), spelling (20 questions), grammar (15 questions), and logical order/sequencing (20 questions). Applicants who scored 75% or higher on the 2009 Exam were eligible to continue in BCPD’s selection process. 16. From 2009 to 2013, African American applicants passed the 2009 Exam at a lower rate than white applicants passed the 2009 Exam. This difference between the pass rates of white and African American applicants on the 2009 Exam is statistically significant. 17. Baltimore County administered and used a different version of the written exam in 2014 (“2014 Exam”). The 2014 Exam was 100 questions and comprised of two parts. Part I included a note-taking/observation skills section requiring a candidate to review a photograph and answer 15 questions about the photograph. Part II was 85 questions divided into components identified as reading comprehension (15 questions), logical ordering (20 questions), writing skill/grammar (30 questions), and interpretation of data (20 questions). Applicants who scored 70% or higher on the 2014 Exam were eligible to continue in BCPD’s selection process.
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18. African American applicants passed the 2014 Exam at a lower rate than white applicants passed the 2014 Exam. This difference between the pass rates of white and African American applicants on the 2014 Exam is statistically significant.
19. Baltimore County began administering and using a different version of the written exam in 2015 (“2015 Exam”). The 2015 Exam is identical to the 2014 Exam except that Part I of the exam contains different questions and photographs; Part II of the exam is the same. Applicants who scored 70% or higher on the 2015 Exam were eligible to continue in BCPD’s selection process.
20. Between 2015 and 2016, African American applicants passed the 2015 Exam at a lower rate than white applicants passed the 2015 Exam. This difference between the pass rates of white and African American applicants on the 2015 Exam is statistically significant.
21. Upon information and belief, Baltimore County continued to administer the 2015 Exam, or a written examination substantially similar to the 2015 Exam, to applicants for BCPD entry-level police officer and police cadet positions after 2016.
22. Baltimore County’s use of each of these written examinations as a pass/fail screening device is not job related for the BCPD entry-level police officer and police cadet positions and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k).
23. As a result of its use of these written examinations, Baltimore County has hired fewer African American applicants as BCPD entry-level police officers and police cadets since January 1, 2013 than it would have had it used a non-discriminatory screening device.
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UNITED STATES’ PATTERN OR PRACTICE CLAIMS 24. Plaintiff United States re-alleges and incorporates herein by reference paragraphs 1-23. 25. Since January 1, 2013, Baltimore County has engaged in a pattern or practice of discrimination against African American applicants for BCPD entry-level police officer and police cadet positions in violation of Section 703(a)(2) of Title VII, 42 U.S.C. § 2000e2(a)(2), by using the 2009, 2014, and 2015 Exams, which have caused a disparate impact on African American applicants on the basis of race, but which are not job-related for the positions in question and consistent with business necessity as required by Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k). 26. The United States, through the United States Department of Justice, has conducted an investigation of the policies and practices of Baltimore County with respect to its screening and selection of applicants for BCPD entry-level police officer and police cadet positions and the discriminatory effect of such practices on African American applicants. The Department of Justice notified Baltimore County of that investigation and of the United States’ determination that the policies and practices outlined in paragraphs 8 through 23 are unlawful. 27. The Attorney General has reasonable cause to believe that the policies and practices of Baltimore County outlined in paragraphs 8 through 23 above constitute a pattern or practice of resistance to the full enjoyment by African Americans applicants of the rights protected by Title VII.
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PRAYER FOR RELIEF WHEREFORE, the United States prays that the Court order Defendant Baltimore County, and its officers, agents, employees, successors, and all persons in active concert or participation with them, to:
a. refrain from using written examinations to screen and select applicants for BCPD entry-level police officer and police cadet positions where such use results in a disparate impact on African Americans, is not job-related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k);
b. provide make whole remedial relief to all persons who have suffered individual loss as a result of the discrimination alleged in this Complaint; and
c. adopt other appropriate nondiscriminatory measures to correct the present effects of its discriminatory policies and practices, including the use of entrylevel police officer and police cadet selection procedures that comply with Title VII.
Plaintiff United States prays for such additional relief as justice may require, together with its costs and disbursements in this action.
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Case 1:19-cv-02465-ADC Document 1 Filed 08/27/19 Page 7 of 7

Dated: August 27, 2019

Respectfully submitted,
ERIC S. DRIEBAND Assistant Attorney General Civil Rights Division
DELORA L. KENNEBREW Chief Employment Litigation Section Civil Rights Division
/s/ Meredith Burrell MEREDITH L. BURRELL (MD Bar, No Number Issued) Deputy Chief
/s/ Kathleen Lawrence /s/ Kunti Salazar KATHLEEN O. LAWRENCE (NY Reg. No. 4844502) KUNTI D. SALAZAR (CA Bar. No. 279090) Trial Attorneys United States Department of Justice Civil Rights Division Employment Litigation Section 4 Constitution Square 150 M Street, NE / Room Number 9-932 Washington, DC 20002 Telephone: (202) 616-9100 kathleen.lawrence@usdoj.gov kunti.salazar@usdoj.gov
Counsel for Plaintiff United States of America

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 U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:19-cv-02465-CCB

United States of America v. Baltimore County, Maryland Assigned to: Judge Catherine C. Blake Referred to: Magistrate Judge Susan K. Gauvey (Settlement) Cause: 42:2000 Job Discrimination (Race)

Date Filed: 08/27/2019 Date Terminated: 05/19/2021 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff United States of America

represented by Kathleen O'Malley Lawrence US Dept. of Justice 150 M Street NE Room 9-932 Washington, DC 20002 2022371690 Email: kathleen.lawrence@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ejaz Hussain Baluch , Jr. U.S. Department of Justice Civil Rights Division, Employment Litigation Section 4 Constitution Square 150 M Street NE Rm. 9-505 Washington, DC 20002 (202) 353-2087 Email: ejaz.baluch@usdoj.gov ATTORNEY TO BE NOTICED

Kunti D Salazar United States Department Of Justice 4 Constitution Square 150 M Street NE Rm Number 9-932 Washington, DC 20002 2023531282 Email: kunti.salazar@usdoj.gov TERMINATED: 02/18/2020

Meredith L Burrell

V. Defendant Baltimore County, Maryland

US Department of Justice 4 Constitution Square 150 M Street NE Rm 9-1809 Washington, DC 20002 2023059053 Fax: 2025141005 Email: meredith.burrell@usdoj.gov ATTORNEY TO BE NOTICED
Shayna Bloom 4 Consitution Square 150 M St. NE Rm 9.1802 Washington, DC 20002 2023051450 Fax: 2025141005 Email: shayna.bloom@usdoj.gov
represented by Glenn Todd Marrow Baltimore County Office of Law Historic Courthouse 400 Washington Avenue Towson, MD 21204 1-410-887-8447 Fax: (410) 296-0931 Email: gmarrow@baltimorecountymd.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory Edward Gaskins Baltimore County Office of Law Old Courthouse 400 Washington Ave Room 219 Towson, MD 21204 14108874420 Fax: 14102960931 Email: ggaskins@baltimorecountymd.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E Field

Baltimore County Office of Law 400 Washington Ave Room 219 Towson, MD 21204 14108874420 Fax: 14102960931 Email: mefield@baltimorecountymd.gov TERMINATED: 11/20/2019
Michael George Raimondi Baltimore County Office of Law 400 Washington Avenue Suite 219 Towson, MD 21204 410-887-6048 Fax: 410-296-0931 Email: mraimondi@baltimorecountymd.gov TERMINATED: 10/01/2020

Date Filed 08/27/2019
08/27/2019 08/27/2019

# Docket Text
1 COMPLAINT against Baltimore County, Maryland, filed by United States of America. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Salazar, Kunti) (Entered: 08/27/2019)
2 Summons Issued 21 days as to Baltimore County, Maryland.(dass, Deputy Clerk) (Entered: 08/27/2019)
3 NOTICE of Case Assignment. This case has been assigned to Magistrate Judge A. David Copperthite. United States of America or counsel for United States of America are required to review and comply with the Magistrate Judge Pilot Project Procedures which can be downloaded here. Pursuant to Standing Order 2018-04, which can be downloaded here, counsel has 14 days from the date of this notice to file their consent, or decline to consent to proceed before a U.S. Magistrate Judge which can be downloaded here. To file your consent, go to Civil > Other Filings > Other Documents > 25 Pct Mag - Consent to Proceed Before a Magistrate Judge. To file your declination, go to Civil > Other Filings > Other Documents > 25 Pct Mag - Decline to Proceed Before a Magistrate Judge. Failure to file a consent or declination will result in issuance of an Order to Show Cause. Please review the case management order that has been issued in this case. Magistrate Election Form due by 9/10/2019. (dass, Deputy Clerk) (Entered: 08/27/2019)

08/27/2019 08/29/2019 08/29/2019 08/29/2019 09/10/2019 09/12/2019
09/17/2019 09/17/2019 09/19/2019 09/20/2019
09/25/2019 10/01/2019 10/30/2019 10/30/2019

4 Case Management Order. Signed by Magistrate Judge A. David Copperthite on 8/27/2019. (dass, Deputy Clerk) (Entered: 08/27/2019)
5 NOTICE of Appearance by Kunti D Salazar on behalf of United States of America (Salazar, Kunti) (Entered: 08/29/2019)
6 NOTICE of Appearance by Kathleen O'Malley Lawrence on behalf of United States of America (Lawrence, Kathleen) (Entered: 08/29/2019)
7 NOTICE of Appearance by Meredith L Burrell on behalf of United States of America (Burrell, Meredith) (Entered: 08/29/2019)
Case reassigned to Judge Catherine C. Blake. Magistrate Judge A. David Copperthite no longer assigned to the case. (cags, Deputy Clerk) (Entered: 09/10/2019)
11 SUMMONS Returned Executed by United States of America. Baltimore County, Maryland served on 9/3/2019, answer due 9/24/2019. (Attachments: # 1 Affidavit of Kunti D. Salazar, # 2 Exhibit A, # 3 Exhibit B)(Salazar, Kunti) (Entered: 09/12/2019)
12 Local Rule 103.3 Disclosure Statement by Baltimore County, Maryland (Field, Michael) (Entered: 09/17/2019)
13 ANSWER to 1 Complaint by Baltimore County, Maryland.(Field, Michael) (Entered: 09/17/2019)
Telephone Conference held on 9/19/2019 before Judge Catherine C. Blake. (kams, Deputy Clerk) (Entered: 09/26/2019)
14 ORDER confirming results of telephone conference re Referral for mediation with a Magistrate Judge, limited written discovery, and deadline for filing a proposed schedule for full discovery. Signed by Judge Catherine C. Blake on 9/20/2019. (dass, Deputy Clerk) (Entered: 09/20/2019)
15 ORDER REFERRING CASE to Magistrate Judge Susan K. Gauvey for Mediation. Signed by Judge Catherine C. Blake on 9/25/2019. (hmls, Deputy Clerk) (Entered: 09/25/2019)
16 ORDER Scheduling Settlement Conference. Signed by Magistrate Judge Susan K. Gauvey on 10/1/2019. (krs, Deputy Clerk) (Entered: 10/01/2019)
17 NOTICE of Appearance by Michael George Raimondi on behalf of Baltimore County, Maryland (Raimondi, Michael) (Entered: 10/30/2019)
18 Joint MOTION for Extension of Time to submit a discovery plan by Baltimore County, Maryland (Attachments: # 1 Text of Proposed Order)(Raimondi, Michael) (Entered: 10/30/2019)

10/31/2019 11/13/2019 11/20/2019 11/20/2019 11/21/2019 12/13/2019 01/06/2020 01/07/2020 02/18/2020 02/20/2020 02/20/2020 02/21/2020 07/02/2020 07/07/2020

19 ORDER granting 18 Joint MOTION for Extension of Time to submit a discovery plan. Signed by Judge Catherine C. Blake on 10/31/2019. (kw2s, Deputy Clerk) (Entered: 10/31/2019)
Telephone Conference re Settlment held on 11/13/2019 before Magistrate Judge Susan K. Gauvey. (dass, Deputy Clerk) (Entered: 11/13/2019)
20 NOTICE of Appearance by Michael George Raimondi on behalf of Baltimore County, Maryland (Raimondi, Michael) (Entered: 11/20/2019)
21 Joint MOTION for Extension of Time to Submit the Proposed Schedule for Full Discovery by United States of America (Attachments: # 1 Text of Proposed Order)(Lawrence, Kathleen) (Entered: 11/20/2019)
22 ORDER granting 21 Joint Motion to postpone submission of the proposed schedule for full Discovery. Signed by Judge Catherine C. Blake on 11/20/2019. (dass, Deputy Clerk) (Entered: 11/21/2019)
23 NOTICE of Appearance by Ejaz Hussain Baluch, Jr on behalf of United States of America (Baluch, Ejaz) (Entered: 12/13/2019)
24 Joint MOTION for Extension of Time to File Proposed Schedule for Full Discovery by United States of America (Attachments: # 1 Text of Proposed Order)(Baluch, Ejaz) (Entered: 01/06/2020)
25 ORDER granting 24 Joint Motion to Postpone Submission of the Proposed Schedule for Full Discovery. Signed by Judge Catherine C. Blake on 1/7/2020. (dass, Deputy Clerk) (Entered: 01/07/2020)
26 NOTICE by United States of America of Withdrawal of Counsel Kunti Salazar (Salazar, Kunti) (Entered: 02/18/2020)
27 NOTICE of Appearance by Shayna Bloom on behalf of United States of America (Bloom, Shayna) (Entered: 02/20/2020)
28 Joint MOTION for Extension of Time to File Proposed Schedule for Full Discovery by United States of America (Attachments: # 1 Text of Proposed Order)(Baluch, Ejaz) (Entered: 02/20/2020)
29 ORDER granting 28 Joint Motion to Postpone Submission of the Proposed Schedule for Full Discovery. Signed by Judge Catherine C. Blake on 2/21/2020. (bmhs, Deputy Clerk) (Entered: 02/21/2020)
30 Joint MOTION for Extension of Time to File Proposed Schedule for Full Discovery by United States of America (Attachments: # 1 Text of Proposed Order)(Lawrence, Kathleen) (Entered: 07/02/2020)
31 ORDER granting 30 Motion for Extension of Time to File Proposed Schedule for Full Discovery by United States of America. Signed by

09/01/2020 09/03/2020
09/03/2020 09/08/2020 09/15/2020 09/28/2020 09/30/2020 10/01/2020 10/01/2020 10/05/2020 10/14/2020
10/15/2020
11/04/2020

Judge Catherine C. Blake on 7/7/2020. (dass, Deputy Clerk) (Entered: 07/07/2020)
32 NOTICE by United States of America of Withdrawal of Counsel (Bloom, Shayna) (Entered: 09/01/2020)
33 ORDER confirming results of teleconference; postponing deadline for parties to submit a full discovery plan; referring case backto Judge Gauvey for additional mediation as appropriate; setting status report deadline. Signed by Judge Catherine C. Blake on 9/3/2020. (dass, Deputy Clerk) (Entered: 09/03/2020)
Telephone Conference held on 9/3/2020 before Judge Catherine C. Blake. (kams, Deputy Clerk) (Entered: 09/25/2020)
Telephone Conference held on 9/8/2020 before Magistrate Judge Susan K. Gauvey. (dass, Deputy Clerk) (Entered: 09/14/2020)
Telephone Conference re Settlement held on 9/15/2020 before Magistrate Judge Susan K. Gauvey. (dass, Deputy Clerk) (Entered: 09/16/2020)
Telephone Conference re settlement held on 9/28/2020 before Magistrate Judge Susan K. Gauvey. (dass, Deputy Clerk) (Entered: 09/28/2020)
Telephone Conference held re Settlement on 9/30/2020 before Magistrate Judge Susan K. Gauvey. (dass, Deputy Clerk) (Entered: 10/01/2020)
Telephone Conference held re Settlement on 10/1/2020 before Magistrate Judge Susan K. Gauvey. (dass, Deputy Clerk) (Entered: 10/01/2020)
34 NOTICE of Appearance by Glenn Todd Marrow on behalf of Baltimore County, Maryland (Marrow, Glenn) (Entered: 10/01/2020)
Telephone Conference held on 10/5/2020 before Judge Catherine C. Blake. (kams, Deputy Clerk) (Entered: 10/09/2020)
35 Joint MOTION for Extension of Time To Submit Joint Status Report by United States of America (Attachments: # 1 Text of Proposed Order)(Lawrence, Kathleen) (Entered: 10/14/2020)
36 ORDER granting 35 Joint Motion to postpone submission of status report. Signed by Judge Catherine C. Blake on 10/15/2020. (dass, Deputy Clerk) (Entered: 10/15/2020)
37 Joint MOTION for Settlement And Request for Provisional Entry and a Fairness Hearing by United States of America (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Appendix A, # 5 Appendix B, # 6 Appendix C, # 7 Appendix D, # 8 Appendix E)(Lawrence, Kathleen) (Entered: 11/04/2020)

11/10/2020 11/18/2020 01/05/2021 02/26/2021 03/15/2021 03/24/2021 03/25/2021 03/29/2021
03/29/2021

Telephone Conference held on 11/10/2020 before Judge Catherine C. Blake. (kams, Deputy Clerk) (Entered: 11/30/2020)
38 ORDER granting 37 Joint Motion to Provisionally Enter the Settlement Agreement and Schedule Fairness Hearing. Signed by Judge Catherine C. Blake on 11/18/2020. (cags, Deputy Clerk) (Entered: 11/18/2020)
39 PAPERLESS Correspondence to counsel: A Status Report is requested in this matter by FEBRUARY 26, 2021. (Blake, Catherine) (Entered: 01/05/2021)
40 STATUS REPORT by United States of America (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Lawrence, Kathleen) (Entered: 02/26/2021)
Telephone Conference held on 3/15/2021 before Judge Catherine C. Blake. (kams, Deputy Clerk) (Entered: 04/01/2021)
41 ORDER approving Additional Notice of Fairness Hearing re 40 Status Report filed by United States of America. Signed by Judge Catherine C. Blake on 3/24/2021. (Attachments: # 1 Notice of Fairness Hearing)(dass, Deputy Clerk) (Entered: 03/24/2021)
Telephone Conference held on 3/25/2021 before Judge Catherine C. Blake. (kams, Deputy Clerk) (Entered: 04/01/2021)
42 SETTLEMENT AGREEMENT Joint Motion to Enter the Amended Settlement Agreement as Final by United States of America (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A - Amended Settlement Agreement and Appendices, # 4 Exhibit B - Objections Bated Numbered 1-454, # 5 Exhibit C Objections Bated Numbered 455-896, # 6 Exhibit D - Objections Bated Numbered 897-1179, # 7 Exhibit E - Objection List by Bates Number, # 8 Exhibit F - Notice of Filing of Document Under Seal, # 9 Exhibit G Declaration of Charles Lawson, # 10 Exhibit H -Declaration of Romaine Williams, # 11 Exhibit I - Objections to Eligibility Criteria, # 12 Exhibit J - Objections Stating Exams Were Fair, # 13 Exhibit K - Objections to Priority Hiring, # 14 Exhibit L - Objections to Retroactive Seniority, # 15 Exhibit M - Objections to Back Pay, # 16 Exhibit N - Miscellaneous Objections, # 17 Exhibit O - Duplicate Objections, # 18 Exhibit P - Blank Objections and Objections with Insufficient Information, # 19 Exhibit Q Objections Stating Support, # 20 Exhibit R - Objections Applying for Relief, # 21 Exhibit S - Untimely Objections)(Baluch, Ejaz) (Entered: 03/29/2021)
43 -SEALED - NOTICE of Filing Under Seal Exhibit F - List of Objectors Intending to Speak at April 6, 2021 Fairness Hearing by United States of

04/01/2021 04/06/2021 05/19/2021 05/19/2021 05/19/2021 05/24/2021 05/27/2021
06/16/2021

America re 42 Settlement Agreement,,,, (Baluch, Ejaz) (Entered: 03/29/2021)
Telephone Conference held on 4/1/2021 before Judge Catherine C. Blake. (kams, Deputy Clerk) (Entered: 04/30/2021)
44 Fairness Hearing held on 4/6/2021 before Judge Catherine C. Blake.(Court Reporter: Christine Asif) (J Herndons, Deputy Clerk) (Entered: 04/06/2021)
45 MEMORANDUM. Signed by Judge Catherine C. Blake on 5/19/2021. (dass, Deputy Clerk) (Entered: 05/19/2021)
46 ORDER re 42 Settlement Agreement filed by United States of America; granting Joint Motion to enter the Amended Settlement Agreement as Final. Signed by Judge Catherine C. Blake on 5/19/2021. (Attachment(s) added: # 1 ORDER) (dass, Deputy Clerk). (Entered: 05/19/2021)
47 (FILED IN ERROR per chambers) AMENDED SETTLEMENT AGREEMENT. (dass, Deputy Clerk) Modified on 5/24/2021 (dass, Deputy Clerk). (Entered: 05/20/2021)
48 AMENDED SETTLEMENT AGREEMENT so Ordered. Signed by Judge Catherine C. Blake on 5/24/21. (dass, Deputy Clerk) (Entered: 05/24/2021)
49 [FILED IN ERROR] NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 4/6/2021, before Judge Catherine C. Blake. Court Reporter Christine T. Asif, Telephone number 410-9624492. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 6/17/2021. Redacted Transcript Deadline set for 6/28/2021. Release of Transcript Restriction set for 8/25/2021.(ca, Court Reporter) Modified on 6/16/2021 (kns, Deputy Clerk). (Entered: 05/27/2021)
50 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 4/6/2021, before Judge Catherine C. Blake. Court Reporter Christine T. Asif, Telephone number 410-962-4492. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 7/7/2021. Redacted Transcript Deadline set for 7/19/2021. Release of Transcript Restriction set for 9/14/2021.(ca, Court Reporter) (Entered: 06/16/2021)

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 Case 1:19-cv-02465-CCB Document 37-3 Filed 11/04/20 Page 1 of 63

IN THE UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

UNITED STATES OF AMERICA,
Plaintiff, v. BALTIMORE COUNTY, MARYLAND,

Civil Action No. 1:19-CV-02465-CCB

Defendant.

SETTLEMENT AGREEMENT

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Case 1:19-cv-02465-CCB Document 37-3 Filed 11/04/20 Page 2 of 63
TABLE OF CONTENTS
I. BACKGROUND AND STIPULATIONS....................................................................... 4 A. Police Officer and Police Cadet Selection Process................................................. 5 B. The Police Officer and Cadet Written Exam .......................................................... 6
II. DEFINITIONS .................................................................................................................. 8 III. PURPOSES OF THE SETTLEMENT AGREEMENT.............................................. 10 IV. FAIRNESS HEARING ON THE TERMS OF THE SETTLEMENT
AGREEMENT ................................................................................................................ 11 A. Provisional Entry of this Agreement..................................................................... 11 B. Claims Administrator............................................................................................ 11 C. Notice of Settlement to Applicants ....................................................................... 12 D. Notice of Settlement to Other Interested Persons & Organizations ..................... 14 E. Objections to Entry of the Settlement Agreement ................................................ 16 F. Final Entry of the Settlement Agreement ............................................................. 17 V. GENERAL INJUNCTIVE RELIEF ............................................................................. 18 A. Injunctions............................................................................................................. 18 B. Settlement Agreement Compliance Officer.......................................................... 19 C. Interim Selection Process...................................................................................... 19 D. Development and Use of The Lawful New Selection Device .............................. 22 VI. INDIVIDUAL RELIEF .................................................................................................. 29 A. Two Forms of Individual Relief ........................................................................... 29 B. Institution and Deposits into a Settlement Fund ................................................... 29 C. Notice of Entry of Settlement Agreement to Applicants ...................................... 30 D. Submission of Interest-in-Relief Forms by Potentially Eligible Applicants ........ 31 E. Determination of Claimants’ Eligibility for Individual Relief ............................. 32 F. Back Pay Relief..................................................................................................... 33 G. Priority Hiring Relief ............................................................................................ 34 H. Proposed Individual Relief Awards List............................................................... 34 VII. FAIRNESS HEARING ON INDIVIDUAL RELIEF .................................................. 35 A. Filing of Proposed Individual Relief Awards Lists with the Court ...................... 35 B. Fairness Hearing on Individual Relief .................................................................. 35 C. Notice of Preliminary Eligibility Determinations to Claimants ........................... 36 D. Objecting to Individual Relief Determinations..................................................... 37 E. Filing Objections to Individual Relief .................................................................. 38 F. Amendment to Preliminary Individual Relief Awards List.................................. 38 G. Approval of Final Individual Relief Awards List ................................................. 39 VIII. EXECUTION OF INDIVIDUAL RELIEF .................................................................. 39 A. Notice of Individual Relief Awards and Acceptance and Release ....................... 39 B. Acceptance of Individual Relief ........................................................................... 40 C. Issuance of Back Pay Award Checks by County.................................................. 43 D. Priority Hiring Relief ............................................................................................ 46
i. Selection Process............................................................................................. 48 ii. Offer of Priority Hire ..................................................................................... 50 iii. Retroactive Seniority to Claimants Hired ..................................................... 51 iv. Hiring Bonus for Claimants Hired ................................................................ 53
2

Case 1:19-cv-02465-CCB Document 37-3 Filed 11/04/20 Page 3 of 63 v. Vacation Benefits for Claimants Hired .......................................................... 54 vi. County’s Reports to the United States on Claimants Hired.......................... 54
E. Confidentiality of Individual Relief...................................................................... 55 IX. RECORD KEEPING AND COMPLIANCE MONITORING................................... 56 X. DISPUTE RESOLUTION ............................................................................................. 57 XI. DURATION OF THE SETTLEMENT AGREEMENT ............................................. 57 XII. COSTS AND FEES......................................................................................................... 58 XIII. MISCELLANEOUS ....................................................................................................... 59
3

Case 1:19-cv-02465-CCB Document 37-3 Filed 11/04/20 Page 4 of 63

APPENDIX A APPENDIX B APPENDIX C
APPENDIX D APPENDIX E

APPENDICES
Notice of Settlement and Fairness Hearing, Instructions for Filing an Objection Prior to the Fairness Hearing, and Objection to the Entry of Settlement Agreement Form
Notice of Entry of Settlement Agreement, Instructions for Completing an Interest-in-Relief Form, and Interest-in-Relief Form
Cover Letter Regarding Individual Relief Determination and Providing Notice of Fairness Hearing on Individual Relief, Instructions for Filing an Objection to Individual Relief, and Objection to Preliminary Determination of Individual Relief Form
Notice of Individual Relief Award
Acceptance of Individual Relief Award and Release of Claims Form

I. BACKGROUND AND STIPULATIONS This action was brought by Plaintiff United States of America (“United States”) against
Defendant Baltimore County, Maryland (“County”) to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”). This Court has jurisdiction of this action under 42 U.S.C. § 2000e-6(b) and 28 U.S.C. §§ 1331, 1343(a)(3) and 1345.
In its Complaint, filed in August 2019, the United States alleged that since January 1, 2013, the County, through its department, the Baltimore County Police Department (“BCPD”), has engaged in a pattern or practice of discrimination against African American applicants for BCPD entry-level police officer and police cadet positions by making hiring decisions based on written examinations that caused a disparate impact on African Americans in violation of Section 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(k). Specifically, the Complaint alleged that the County’s use of at least three different versions of a multiple-choice written examination to screen and select applicants for the entry-level police officer and cadet positions had an adverse impact

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on African American applicants who disproportionately failed the written entrance examinations. The United States further alleged that these practices have not been shown to be job related for the BCPD entry-level police officer and police cadet positions and consistent with business necessity. The United States did not allege that the County intentionally discriminated against African American applicants. The County denies that it has violated Title VII. Nonetheless, the County and, specifically, the County Executive sworn into office in December 2018 (after the County had begun administering the tests in question), have expressed a commitment to working with the United States to resolve the allegations in the Complaint.
The United States and the County, desiring that this action be settled by an appropriate settlement agreement (“Agreement”) and without the burden of protracted litigation, agree to the jurisdiction of this Court over the Parties and the subject matter of this action. The United States and the County further agree to this Agreement as final and binding between themselves as to the issues raised in the United States’ Complaint in this action, as well as any Title VII claims the United States could have asserted based on the interim written examination(s) administered by the County beginning in June 2019 described in Section V., Subsection C. below. Subject to the Court’s approval of this Agreement, the Parties waive findings of fact and conclusions of law on all issues, except as to the following, to which the Parties stipulate for the purposes of this settlement, and which the Court finds:
A. Police Officer and Police Cadet Selection Process i. Baltimore County maintains the BCPD and, through it, employs police officers and cadets
who, among other things, are responsible for protecting individuals and property in Baltimore County. ii. Baltimore County is responsible for the recruitment and hiring of BCPD entry-level police officers and police cadets, including establishing the terms, conditions, and other practices which bear upon the selection and employment of BCPD entry-level police officers and police cadets.
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iii. At all relevant times, the County used a multi-step selection process to hire both entry-level police officers and police cadets. The cadet position was for applicants between 17 1/2 and 20 1/2 years old, while the police officer position was for applicants who were 20 1/2 years old and older.
iv. The County’s selection process for entry-level police officers and cadets began with a multiple-choice written examination, which the County administered to interested applicants throughout the year.
v. Applicants for BCPD entry-level police officer and police cadet positions were required to successfully obtain a passing score on the multiple-choice written examination to proceed to the other steps in the selection process (including, among other things, a physical agility test, medical exam, psychological exam, and background investigation.) Those who passed the written examination were also required to meet certain other qualifications for employment. Applicants who failed the written exam were removed from further consideration.
B. The Police Officer and Cadet Written Exam
i. From 2009 through April 27, 2019, Baltimore County administered and used four different versions of a multiple-choice written examination in the screening and selection of applicants for hire into the BCPD entry-level police officer and police cadet positions. Each version of the written exam was developed by the Office of Human Resources of the Baltimore County Government.
ii. Baltimore County administered and used one version of the written exam from 2009 through 2013 (“2009 Exam”). The 2009 Exam consisted of 85 questions divided into components identified as reading comprehension (15 questions), vocabulary (15 questions), spelling (20 questions), grammar (15 questions), and logical order/sequencing (20 questions). Applicants who scored 75% or higher on the 2009 Exam were eligible to continue in BCPD’s selection process.
iii. From 2009 through 2013, African American applicants passed the 2009 Exam at a lower rate than white applicants passed the 2009 Exam. This difference between the pass rates of white and African American applicants on the 2009 Exam is statistically significant at 10.34 standard deviations.1
iv. Baltimore County administered and used a different version of the written exam in 2014 (“2014 Exam”). The 2014 Exam consisted of 100 questions and was comprised of two parts. Part I included a note-taking/observation skills section requiring a candidate to review a photograph and answer 15 questions about the photograph. Part II was 85 questions divided into components identified as reading comprehension (15 questions), logical ordering (20 questions), writing skill/grammar (30 questions), and interpretation of data (20 questions). Applicants who scored 70% or higher on the 2014 Exam were eligible to continue in BCPD’s selection process.
1 All calculations of statistical significance referenced herein were calculated by the United States in its investigation and are based on information Baltimore County produced to the United States between January 30, 2012 and July 21, 2016.
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v. African American applicants passed the 2014 Exam at a lower rate than white applicants passed the 2014 Exam. This difference between the pass rates of white and African American applicants on the 2014 Exam is statistically significant at -7.57 standard deviations.
vi. Baltimore County began administering and using a different version of the written exam in 2015 (“2015 Exam”). The 2015 Exam is identical to the 2014 Exam except that Part I of the exam contains different questions and photographs; Part II of the exam is the same. Applicants who scored 70% or higher on the 2015 Exam were eligible to continue in BCPD’s selection process.
vii. Between 2015 and 2016, African American applicants passed the 2015 Exam at a lower rate than white applicants passed the 2015 Exam. This difference between the pass rates of white and African American applicants on the 2015 Exam is statistically significant at 10.94 standard deviations.
viii. Baltimore County continued to administer the 2015 Exam to applicants for BCPD entrylevel police officer and police cadet positions until September 2016.
ix. Baltimore County began administering and using a different version of the written exam in September 2016 (the “2016 Exam”). The 2016 Exam is nearly identical to the 2015 Exam. Baltimore County continued to administer the 2016 Exam through April 27, 2019.
x. Based on information available to it at the time of filing its Complaint, the United States estimates that at least 23 additional African American applicants would have been hired by the County as BCPD entry-level police officers and/or cadets since January 1, 2013 absent the disparate impact of the pass/fail use of the 2009 Exam, 2014 Exam, and 2015 Exam.
xi. The United States contends that the County’s use of these written exams as a pass/fail screening device was not job related and consistent with business necessity.
xii. Though the Parties stipulate to the foregoing for the purposes of this settlement, the County does not admit to liability under Title VII. In the event the Court does not approve the Settlement Agreement, the Parties agree that the stipulations herein may not be used in subsequent proceedings to establish the County’s liability under Title VII.
xiii. The relief provided by this Agreement does not exceed make-whole relief to individuals who would otherwise have been hired as entry-level police officers and cadets but for the disparate impact of the practices challenged by the United States, and the procedures set forth in this Agreement for identifying Claimants and allocating relief among them are fair, adequate, and reasonable, and are not illegal, a product of collusion, or against the public interest.
In resolution of this action, with the agreement of the Parties, IT IS THEREFORE
ORDERED AND ADJUDGED as follows:
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II. DEFINITIONS 1. “Back Pay Relief” means a monetary award that represents the value of some of the wages that a Claimant would have received from the County if he or she had not been disqualified by the Challenged Written Exams and had been hired into the entry-level police officer or cadet position for which he or she applied. 2. “Claimant” refers to any person who submits an Interest-in-Relief Form. 3. “Days” means calendar days unless business days are clearly specified. If any deadline referenced in this Agreement should fall on a weekend or federal holiday, the deadline shall be moved to the next business day. 4. “Date of Entry” means the date on which the Court enters the Agreement as a final order at or after the Fairness Hearing on the Terms of the Settlement Agreement as set forth in Paragraph 27 of this Agreement. 5. “Individual Relief” under this Agreement means Back Pay Relief and/or Priority Hiring Relief as defined in this Section. 6. The “Parties” to this Agreement are the United States, by the Department of Justice (“DOJ”), and Baltimore County, Maryland. 7. “BCPD” means the Baltimore County Police Department, which is a department of Baltimore County, Maryland. 8. The “Challenged Written Exams” means all written examinations used by Baltimore County from 2009 through April 2019, as described in Stipulations B.ii, B.iv, B.vi and B.ix. 9. “Priority Hire” means a Claimant who (i) is eligible for Priority Hiring Relief; (ii) is deemed qualified to be a police officer or cadet by the County by way of successfully completing the County’s police officer and cadet screening and selection procedures 8

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that are then in effect and required of all other police officer and cadet applicants; (iii) receives and accepts an offer of priority hire, pursuant to Paragraphs 108 and 109; and (iv) upon beginning the academy, is hired by the County as an entry-level police officer or cadet. 10. “Priority Hiring Relief” means the opportunity for an eligible Claimant to participate in the priority hiring selection process. Eligibility to participate in the priority hiring selection process does not guarantee a Claimant will receive an offer of priority hire from the County. 11. “Retroactive Seniority” refers to seniority credit in the entry-level police officer or cadet position that a Priority Hire is entitled to receive under this Agreement, which corresponds to the date a Claimant first took and failed one of the Challenged Written Exams.
a. Specifically, Retroactive Seniority applies to a Priority Hire’s seniority for purposes of calculating the regular rate of pay (and any other types of pay calculated based on the regular rate), annual leave, accrual of vacation leave after the first year of employment, layoffs/reductions in work force, recall from layoffs/reduction in work force, assignments to specialized units (e.g., Homicide), and transfers between precincts. Retroactive Seniority shall be limited to this expressly listed group of benefits. The Parties agree that in considering assignments to specialized units, Retroactive Seniority will be used exactly as seniority is used in this process, pursuant to the Memorandum of Understanding Between the Baltimore County Administration and the Fraternal Order of Police, Lodge #4 (“MOU”). As of the date of this Agreement, Section 13.3 of the
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MOU governs assignments to specialized units (though it refers to these assignments as “transfers”) and specifically states that seniority is used only when other specified factors are relatively equal. b. Retroactive Seniority does not refer to seniority used for scheduling the following: leave, personal time, vacation time or days off from work of any type or nature. c. Retroactive Seniority shall not be used to satisfy any applicable probationary periods or any time-in-grade minimums required to be eligible for promotions, assignments, or transfers. 12. “New Selection Device” means any examination, test, requirement, or other criterion used by the County in place of the Challenged Written Exams to evaluate an applicant’s qualifications for hire as an entry-level police office or cadet (e.g., written or video examination.) 13. “Hiring Shortfall” as used in this Agreement means an estimate of the number of additional African Americans who would have been hired as police officers or police cadets absent the use of the interim written examination. III. PURPOSES OF THE SETTLEMENT AGREEMENT 14. The purposes of this Agreement are to ensure that: a. The County replaces the Challenged Written Exams with a New Selection Device that promotes its own public safety needs to hire qualified police officer and cadet candidates and also complies with Title VII’s requirements; and b. The County provides, as appropriate, Individual Relief to eligible African American applicants who, the United States alleges, were not afforded further consideration for employment as entry-level police officers and cadets with
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BCPD due to the County’s written examinations challenged by the United States in this case. IV. FAIRNESS HEARING ON THE TERMS OF THE SETTLEMENT AGREEMENT A. Provisional Entry of this Agreement 15. Upon execution of this Agreement by the Parties, the Parties shall promptly file a joint motion for the provisional approval and entry of the Agreement by the Court and request a Fairness Hearing on the Terms of this Settlement Agreement to allow the Court to determine whether the terms of the Agreement are fair, adequate, reasonable, lawful, and not a product of collusion or against the public interest. The Parties will request that the Court provide notice at least one hundred thirty (130) days before the date and time set for a Fairness Hearing on the Terms of the Settlement Agreement. The Court shall not set a Fairness Hearing sooner than one hundred thirty (130) days from the date the Parties request a Fairness Hearing. 16. The purpose of the Fairness Hearing on the Terms of the Settlement Agreement and the related notification provisions of this Agreement is to provide all persons who may be affected by the terms of the Agreement with notice and an opportunity to present objections prior to final entry of the Agreement, in accordance with Section 703(n) of Title VII, 42 U.S.C. § 2000e-2(n). B. Claims Administrator 17. The County shall retain a Claims Administrator to assist the Parties with the notice and claims process. The County shall bear all costs and expenses of the Claims Administrator, which shall be in addition to, and not deducted from, any and all other monetary commitments the County has under this Agreement. The County shall submit to the Baltimore County Council a proposed contract with a Claims Administrator in a
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timeframe that will allow the County to officially retain the Claims Administrator on November 16, 2020. If the County does not retain the Claims Administrator by November 17, 2020, the County will notify the United States in writing that day, and the Parties will meet and confer within one (1) business day to discuss a resolution. If the Parties do not reach a resolution during that meeting, either Party may immediately submit the disputed issue to the Court for resolution without any further written notice to the other party. 18. The Claims Administrator’s contract with the County requires the Claims Administrator to perform the work outlined in this Agreement and to work under the control and supervision of the County in the conduct of its activities. The Claims Administrator’s contract also requires it to report regularly and provide all reasonably requested information to both the United States and the County. In the event that the United States or the County has reason to believe that the Claims Administrator is not adequately performing the work outlined in this Agreement, the United States and the County will meet and confer to find a mutually agreeable course of action to effectuate the Claims Administrator’s adequate performance of the work outlined in this Agreement. In the event that the United States and the County are unable to agree upon a course of action to effectuate the Claims Administrator’s adequate performance of the work outlined in this Agreement, the Parties may present the matter to the Court pursuant to the dispute resolution provisions set forth in Paragraph 122 of this Agreement. C. Notice of Settlement to Applicants 19. No later than ninety (90) days prior to the Fairness Hearing on the Terms of the Settlement Agreement, the County shall provide to the Claims Administrator and the United
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States the last-known mailing address and e-mail address of each applicant who identified as African American when applying for any of the County’s selection processes for entry-level police officers or cadets and who took and failed the Challenged Written Exams between 2009 through 2019. The Claims Administrator shall conduct reasonable additional research necessary to determine if there is a more current address for each applicant. 20. No later than eighty (80) days prior to the Fairness Hearing on the Terms of the Settlement Agreement, the Claims Administrator shall provide a copy of a Notice of Settlement and Fairness Hearing, Instructions for Filing an Objection Prior to the Fairness Hearing, and a blank Objection to the Entry of the Settlement Agreement Form (collectively, “Notice Documents”) in the formats set forth in Appendix A via e-mail to the last-known e-mail address and via first-class U.S. mail to the last-known mailing address of the applicants identified in Paragraph 19 above. 21. The Claims Administrator shall keep records of all Notice Documents that are returned to the Claims Administrator as undeliverable. If any applicant’s Notice Documents are returned to the Claims Administrator as undeliverable (whether via e-mail or first-class U.S. mail), the Claims Administrator shall promptly notify the Parties and attempt to identify an updated electronic and/or postal mailing address as soon as practicable. If the Claims Administrator or one of the Parties identifies an alternate electronic and/or postal mailing address, the Claims Administrator shall re-send the Notice Documents to the applicant within two (2) business days of receipt of the alternate address. The
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Claims Administrator’s obligation to identify an updated electronic and/or postal mailing address and re-send the Notice Documents will end fifty (50) days before the Fairness Hearing on the Terms of the Settlement Agreement. D. Notice of Settlement to Other Interested Persons & Organizations 22. No later than eighty (80) days prior to the Fairness Hearing on the Terms of the Settlement Agreement, the County shall provide a copy of the Notice Documents described in Paragraph 20 in the formats set forth in Appendix A, to:
a. Each police officer and cadet currently employed by the County, via hand delivery, at the place of the person’s employment, by U.S. mail to his or her home address, or as an attachment to or an enclosure with each such person’s regularly distributed paycheck; and
b. The Fraternal Order of Police, Lodge #4, and any other union that has a contractual relationship with the County authorizing it to represent police officers or cadets in the BCPD, via U.S. mail.
23. The County shall publish a notice of the Settlement and the Fairness Hearing, in a form substantially the same as contained in Appendix A, on the County’s website (https://www.baltimorecountymd.gov), BCPD’s website (https://www.baltimorecountymd.gov/Agencies/police/index.html), in the Baltimore Sun, and via social media (i.e., Facebook and/or Twitter) regularly used by the County and/or the BCPD. a. The published notice on the County’s website and BCPD’s website shall include a publicly-accessible link from which the Notice Documents and the Agreement can be accessed. This publicly-accessible link and notice shall be published and remain on the websites for no less than eighty (80) days prior to the Fairness Hearing on the Terms of the Settlement Agreement. 14

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b. Eighty (80) days prior to the Fairness Hearing on the Terms of the Settlement Agreement and again sixty (60) days prior to the Fairness Hearing on the Terms of the Settlement Agreement, the County shall publish a notice in the Baltimore Sun in a form substantially the same as contained in Appendix A. The published notice also shall provide the website address from which Notice Documents and the Agreement can be accessed, and the phone number of the Claims Administrator.
c. Eighty (80) days prior to the Fairness Hearing on the Terms of the Settlement Agreement and again sixty (60) days prior to the Fairness Hearing on the Terms of the Settlement Agreement, the County shall publish notice via social media as follows: i. The County shall post on the County’s Facebook page (https://www.facebook.com/BaltCoGov/) and on BCPD’s Facebook page (https://www.facebook.com/BaltCoPolice/) with the following text and a publicly-accessible link from which the Notice Documents and the Agreement can be accessed: “The County has entered into a Settlement Agreement with the U.S. Department of Justice to resolve allegations that the Baltimore County Police Department’s use of certain written examinations in its hiring process discriminated against African American applicants, which the County denies. To learn more, visit: [link].” The County shall not delete these posts prior to the Fairness Hearing on the Terms of the Settlement Agreement.
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ii. The County shall post a tweet on the County’s Twitter page (@BaltCoGov) and on BCPD’s Twitter page (@BaltCoPolice) with the following text and a publicly-accessible link from which the Notice Documents and the Agreement can be accessed: “The County settled a race discrimination hiring lawsuit with the Dept. of Justice @CivilRights involving the Baltimore County Police Department. Read more: [link].” The County shall not delete these tweets prior to the Fairness Hearing on the Terms of the Settlement Agreement.
E. Objections to Entry of the Settlement Agreement 24. A person who wishes to object to the terms of the Settlement Agreement may file a
written objection as follows: a. Objections shall be submitted to the Claims Administrator using the objection form included in Appendix A and shall state the objector’s name, mailing address, telephone number, and e-mail address, if any; set forth a specific description of the objector’s basis for objecting; include copies of any documentation supporting the objection; state the name and contact information of the objector’s counsel, if any; and state whether the objector wishes the opportunity to be heard in Court at the Fairness Hearing on the Terms of the Settlement Agreement. b. Objections submitted via mail must be postmarked no later than fifty (50) days before the Fairness Hearing on the Terms of the Settlement Agreement, and objections submitted via e-mail must be transmitted electronically no later than fifty (50) days before the Fairness Hearing on the Terms of the Settlement Agreement. 16

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25. No later than forty-five (45) days prior to the date set for the Fairness Hearing on the Terms of the Settlement Agreement, and on a rolling weekly basis thereafter (if necessary), the Claims Administrator shall serve upon the Parties copies of the objections it has received. The Claims Administrator shall provide the Parties with two copies of each of the objections: (i) one copy of all of the objections in their original form; and (ii) one copy of all objections with all personally identifying information (“PII”) redacted. Specifically, for the second copy of objections forms, the Claims Administrator will redact objectors’ addresses, telephone numbers, and email addresses, as well as any other information later identified for redaction by the Parties.
26. No later than ten (10) days prior to the Fairness Hearing on the Terms of the Settlement Agreement: a. The United States shall file with the Court copies of all redacted objections received by the Claims Administrator; and b. The United States and the County shall file their responses, if any, to objections timely received by the Claims Administrator in accordance with the deadlines set forth in Appendix A.
F. Final Entry of the Settlement Agreement 27. The Court shall approve and enter the Agreement at or after the Fairness Hearing on
the Terms of the Settlement Agreement if the Court determines that the terms of this Agreement are fair, adequate, reasonable, lawful, and not a product of collusion or against the public interest.
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V. GENERAL INJUNCTIVE RELIEF A. Injunctions
28. Except as provided in Paragraphs 33-39 of this Agreement, the County, its officials, agents, employees, and successors, and all persons acting on behalf of or in active concert or participation with it, are enjoined from using any written exam as part of its selection process for entry-level police officers or cadets in any manner that results in disparate impact upon African American applicants and is not shown to be job related and consistent with business necessity under Title VII or, if job related and consistent with business necessity under Title VII, from refusing to adopt an alternative employment practice that exists within the meaning of 42 U.S.C. § 2000e-2(k)(1)(A)(ii).
29. The County, and its officials, agents, employees, and successors, and all persons acting on behalf of or in active concert or participation with it, are specifically enjoined from using the Challenged Written Exams.
30. Except as provided in Paragraphs 33-39 of this Agreement, during the term of this Agreement, the County shall not administer any written exam for use in selecting entrylevel police officers or cadets without the assent of the United States or, if the Parties cannot reach agreement, approval by the Court.
31. The County is enjoined from retaliating against any person because he or she opposed the alleged discrimination at issue in this case, in any way participated in or cooperated with the United States’ investigation or litigation of the alleged discrimination at issue in this case, has been involved with the development or administration of this Agreement, or seeks or receives relief under any provision of this Agreement.
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B. Settlement Agreement Compliance Officer 32. No later than thirty (30) days after the date this Agreement is provisionally entered by
the Court, the County shall designate a Settlement Agreement Compliance Officer who may be a County employee. The Compliance Officer shall report quarterly on the status of the implementation of this Agreement to the County Attorney and to the United States, through the County Attorney, during the period that this Agreement is in effect. The Compliance Officer shall include in these quarterly reports any complaints of (i) discrimination on the basis of race arising from the County’s screening of applicants for entry-level police officer and police cadet positions and (ii) retaliation prohibited by Paragraph 31 above. C. Interim Selection Process 33. The Parties recognize that the proper development of a New Selection Device to replace the Challenged Written Exams will take time, and that the County’s immediate operational needs require the hiring of entry-level police officers and cadets before the development and implementation of the New Selection Device pursuant to Paragraphs 40-47 of this Agreement. 34. In order to address the County’s immediate operational needs, the Parties agree that the County may, on an interim basis, continue using the National Police Officer Selection Test (the “interim written examination”). The County independently began using this interim written examination in June 2019. The County’s continued use of the interim written examination will be on a pass/fail basis. 35. No later than thirty (30) days after the County’s first administration of the New Selection Device implemented pursuant to Paragraphs 40-47 of this Agreement, the County will produce applicant flow data necessary for the United States to determine if the
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interim written examination caused an adverse impact on African American applicants and to calculate any resulting Hiring Shortfall caused by the interim written examination, as well as any information then in its possession regarding the validity of the interim written examination. Specifically, the County will provide the following information for each individual who took the interim written examination: name; social security number; contact information; race; test date; written examination overall test score, as well as the scores on each component of the exam; the written examination pass/fail determination; whether the individual was hired; final offer date (if applicable); and other related data points collected as part of the County’s routine recordkeeping process identified by the United States. Such information shall be produced in an electronic format agreed to by the Parties. 36. The United States shall review the materials provided and, no later than forty-five (45) days after receipt of all documents and information required by Paragraph 35, notify Baltimore County in writing whether it has found that the interim written examination caused an adverse impact on African American applicants, its calculation of any resulting Hiring Shortfall, and whether it believes the information provided by the County about the validity of the interim written examination satisfies the County’s burden to establish that its use of the interim written examination complies with Title VII (i.e. was job related and consistent with business necessity). 37. If the United States notifies the County that the interim written examination caused an adverse impact that resulted in a Hiring Shortfall and that the information provided by the County does not demonstrate that the interim written examination complies with Title VII, the County shall notify the United States within ten (10) days whether it
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intends to produce additional evidence in support of the validity of the interim written examination. If the County intends to produce additional evidence, it must do so no later than thirty (30) days after receipt of the notification from the United States described in Paragraph 36. 38. No later than sixty (60) days after receipt of a production of additional evidence from the County pursuant to Paragraph 37, the United States shall review the materials, determine whether the County’s use of the interim written examination complied with Title VII, and notify the County in writing of its determination. 39. If the United States determines that the interim written examination did not comply with Title VII, the County will, no later than sixty (60) days after receiving notification from the United States under Paragraph 38, invite all African Americans who failed the interim written examination to take the New Selection Device developed pursuant to Paragraphs 40-47 of this Agreement. The County shall hire up to six (6) people from the pool of invited African American individuals who appear for and pass the New Selection Device and successfully complete the County’s other police officer and cadet screening procedures then in effect into the first available BCPD Academy class. The County’s obligation to hire individuals under this Paragraph shall be limited to the Hiring Shortfall identified by the United States under Paragraph 36 or six (6), whichever is lower. The individuals hired pursuant to this Paragraph will not be eligible for back pay (beyond that which they may be eligible for pursuant to Section VI.E.) or a hiring bonus, but will be granted seniority credit and vacation benefits corresponding to the year in which the individual first took and failed the interim written examination as follows:
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a. On the date on which an individual hired pursuant to this Paragraph 39 enters

the BCPD Academy, the County shall credit the individual with seniority for

purposes of calculating the regular rate of pay (and any other types of pay cal-

culated based on the regular rate), annual leave, and accrual of vacation leave

after the first year of employment as outlined in the table immediately below.

b. Upon the individual’s successful completion of the BCPD Academy, the

County will grant individuals hired pursuant to this Paragraph 39 with a certain

number of vacation days for their first year of employment as outlined in the

table immediately below.

Year Interim Written Examination First Taken and Failed 2019

Date for Seniority Credit 7/1/2020

Vacation Days Granted Upon Graduation from Academy 13

2020 2021 2022

7/1/2021 (unless actual start 12 date is earlier) 12/1/2021 (unless actual start 12 date is earlier) 7/1/2022 (unless actual start 12 date is earlier)

D. Development and Use of The Lawful New Selection Device 40. The County will adopt and use a lawful New Selection Device to hire police officers
and cadets in place of the Challenged Written Exams. The New Selection Device shall either have no statistically significant adverse impact on the basis of race, or shall have been demonstrated to be job related for the police officer and cadet position and consistent with business necessity in accordance with Title VII. In selecting or developing the New Selection Device, the County shall make reasonable efforts to explore the

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availability of selection devices that have been shown to reduce or eliminate adverse impact upon African Americans in processes for selecting police officers and cadets. 41. The County has agreed to retain a third party to develop the lawful New Selection Device for hiring entry-level police officers and cadets in place of the Challenged Written Exams (“Test Developer”).
a. The County shall enter into a contract with a test developer. The County shall bear all costs and expenses of the Test Developer, which shall be in addition to, and not deducted from, any and all other monetary commitments the County had under the Agreement. If the County chooses to retain a test developer by utilizing a procedure other than publishing a Request for Proposals (RFP), it will provide the United States notice of its potential selections for a test developer within ten (10) days of the Parties tendering the Settlement Agreement to the Court for provisional approval and entry. If the County publishes a request for proposal (“RFP”) to find a test developer, it will do so within ten (10) days of the Parties tendering the Settlement Agreement to the Court for provisional approval and entry, and will provide any responses received from potential test developers to the United States no later than ten (10) business days after the RFP closing date. No later than ten (10) business days after receipt of the notice of the selected test developer or receipt of the RFP responses, whichever is applicable, the United States will notify the County if it objects to any of the potential test developers. In consultation with the United States, the County will then select and retain a Test Developer. The County may not select a Test De-
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veloper that the United States has objected to and may not select a Test Developer based on price alone. Should the County and the United States have a dispute about the selection of the Test Developer, either party may submit the dispute to the Court in accordance with the dispute resolution provisions set forth in Paragraph 122 of this Agreement. b. The lawful New Selection Device must be developed, validated, and used in accordance with Title VII, the Uniform Guidelines on Employee Selection Procedures (“UGESP”), 29 C.F.R. Part 1607, the Principles for the Validation and Use of Personnel Selection Procedures of the Society for Industrial and Organizational Psychologists (“SIOP Principles”), and the terms of this Agreement. c. The County will require the Test Developer to prepare a work plan for the development of the lawful New Selection Device that details each stage of the design, development, and validation of the test and that contains estimated timelines for each stage. The work plan will also include a timeline for producing information to the United States, through the County, at particular milestones of the design, development, and validation process (e.g. the production of a job analysis) so that the United States can ensure compliance with Paragraph 41(b). The County must submit this work plan to the United States no later than one hundred fifty-five (155) days after the Parties tender the Settlement Agreement to the Court for provisional approval and entry if the County used the RFP process to retain a test developer, or no later than one hundred thirty (130) days after the Parties tender the Settlement Agreement to the Court for provisional approval and entry if the County used an alternative procurement process to
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retain the test developer, unless the Parties mutually agree in writing signed by the Parties to modify this time. d. The United States shall review the work plan provided and, no later than thirty (30) days after receipt of the work plan, notify the County in writing of any requested modifications or objections to the work plan. If the United States does not notify the County within said time, it waives its right to object to the work plan, unless the Parties mutually agree in writing to modify the time or there is good cause for the United States’ delay. e. If the United States objects pursuant to Paragraph 41(d) to the Test Developer’s work plan, the Parties and the Test Developer shall within thirty (30) days, unless another period of time is mutually agreed upon in writing signed by the Parties, meet and confer to discuss the United States’ objection and whether resolution is possible. If the Parties fail to reach an agreement resolving the issues raised by the United States’ objection within thirty (30) days, the Parties may submit the dispute to the Court in accordance with the dispute resolution provisions set forth in Paragraph 122 of this Agreement. f. The United States will review the information produced by the Test Developer pursuant to the work plan agreed upon by the Parties and notify the County of any objections during the development process. If the United States objects to any aspect of the design, development, or validation process pursuant to this Paragraph, the Parties and the Test Developer shall within thirty (30) days meet and confer to discuss the United States’ objection and whether resolution is possible. If the Parties fail to reach an agreement resolving the issues raised by
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the United States’ objection within thirty (30) days, the Parties may submit the dispute to the Court in accordance with the dispute resolution provisions set forth in Paragraph 122 of this Agreement. g. The County must make the Test Developer that it retains in accordance with this Paragraph available for consultation with the United States, its contractors, and experts throughout the design, development, and validation process within ten (10) days of a request by the United States unless another time period is agreed upon by the Parties in writing. 42. Sixty (60) or more days before the County administers its lawful New Selection Device, the County shall submit to the United States a proposal to use the New Selection Device for hiring entry-level police officers and cadets in place of the Challenged Written Exams. This proposal shall include all information available to the County about the development and/or validation of the proposed New Selection Device, except that the County need not reproduce information already made available to the United States through implementation of the work plan as outlined in Paragraph 41(c). The proposal may include: a description of the New Selection Device and the manner in which the County intends to use it (including, but not limited to the proposed scoring method, the proposed passing score, time limit, and any other requirement to pass any component of the test); the known, or likely, adverse impact upon African Americans of the intended use of the New Selection Device, if any, including the known or likely adverse impact upon African Americans resulting from the passing scores proposed to be used by the County; all evidence of job relatedness or validity of the New Selection Device, including all job analyses, test plans, expert reports, and validation studies, as well as
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data underlying such analyses, plans, reports, or studies; and, any basis for a conclusion that the proposed use of the New Selection Device (including proposed passing scores) is job related for the position and consistent with business necessity. The County’s submission shall also identify any alternative selection device(s) that the County considered, but did not adopt, as well as its consideration of any other manner of using the New Selection Device(s) the County proposes implementing, if applicable. 43. No later than thirty (30) days after receiving the proposal and information described in Paragraph 42, above, the United States shall notify the County in writing whether it objects to the County’s proposed use of the New Selection Device; otherwise, the County may administer the New Selection Device. 44. No later than thirty (30) days following the first administration of the County’s New Selection Device (before hiring based on any such selection device) and on a quarterly basis thereafter for one year, the County shall provide the following information to the United States: a list of all applicants who took the County’s New Selection Device, to include each applicant’s race; whether they are eligible for Priority Hiring Relief; and data indicating each candidate’s raw score(s) on the County’s New Selection Device, as well as the performance of each applicant on each item of the County’s New Selection Device. The Parties agree that this list of information is not exhaustive and that there may be other, relevant information about the County’s use of its New Selection Device for hiring police officers and cadets that may become available after test administration. The County agrees to provide to the United States, upon request, any additional information relevant to the evaluation of its new hiring process for Title VII compliance. If the United States determines that the County’s use of the New Selection
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Device does not comply with Title VII and/or this Agreement, the United States shall, within forty-five (45) days of receiving the information identified in this Paragraph from the County, notify the County in writing that the United States objects to the County’s continued use of the New Selection Device, and state the basis for any such objection. 45. If the United States objects pursuant to Paragraph 44 above, to the County’s use of the New Selection Device, the Parties shall, within thirty (30) days of the United States’ stating its objection, meet and confer to discuss the United States’ objection and whether resolution is possible. If the Parties fail to reach an agreement resolving the issues raised by the United States’ objection within thirty (30) days, the Parties may submit the dispute to the Court in accordance with the dispute resolution provisions set forth in Paragraph 122 of this Agreement. 46. If the United States objects pursuant to Paragraph 44, above, to the County’s use of the New Selection Device, no person shall be hired as an entry-level police officer or cadet based on the New Selection Device except by written agreement of the Parties or order of the Court. The Parties agree that, in the event an objection is submitted to the Court, they each have a duty to work expeditiously toward an interim agreement that would enable the County to address immediate hiring exigencies while the objection is resolved. 47. For the duration of this Agreement, if the County proposes to replace or change its use of the New Selection Device:
a. The County shall provide written notice to the United States at least sixty (60) days prior to the intended effective date of the replacement or change, including
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all information and documentation related to the design, development, and validation of the proposed replacement or change, including, but not limited to, the proposed scoring method and whether such change or modification will have more or less adverse impact on African Americans than the previous New Selection Device. b. The United States shall inform the County whether it objects to the proposed replacement or change no later than thirty (30) days after receipt of the written notice set forth in Paragraph 47(a) (above). If the United States does not object, the County may implement the proposed change or modification. If the United States does object, then the County may not implement the proposed replacement or change unless the Parties engage in the dispute resolution process set forth in Paragraph 122.
VI. INDIVIDUAL RELIEF A. Two Forms of Individual Relief
48. The County will provide Individual Relief to eligible Claimants in the form of Back Pay Relief and/or Priority Hiring Relief, including Retroactive Seniority and other benefits for selected Priority Hires described below.
B. Institution and Deposits into a Settlement Fund 49. No later than seven (7) business days after the Date of Entry of this Agreement, the
County shall propose in writing to the United States the name of a federally insured financial institution for the deposit of $2,000,000 into an interest-bearing account from which Back Pay Relief will be distributed to eligible Claimants pursuant to this Agreement. The United States shall provide a written response to the County’s proposal
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within seven (7) business days of its receipt, either consenting to the County’s proposed financial institution or objecting and proposing an alternative financial institution. If the Parties cannot agree on a federally insured financial institution, either party may submit the dispute to the Court for resolution upon providing the other party with seven (7) business days written notice of its intent. 50. No later than thirty (30) days after the Date of Entry of this Agreement, the County shall deposit the sum of One Million Dollars ($1,000,000) into an interest-bearing account in the federally insured financial institution that has been approved by the Parties or, if applicable, the Court. 51. On July 1, 2021, the County shall deposit an additional One Million Dollars ($1,000,000) into an interest-bearing account in the federally insured financial institution that has been approved by the Parties or, if applicable, the Court. 52. Together the two deposits by the County, totaling $2,000,000, plus any interest accrued on those amounts, shall constitute the “Settlement Fund” that shall be used to make back pay awards to eligible Claimants pursuant to this Agreement. Funds from the Settlement Fund shall not be used to satisfy any of the County’s other obligations in this Agreement. C. Notice of Entry of Settlement Agreement to Applicants 53. No later than thirty (30) days after the Date of Entry of this Agreement, the Claims Administrator shall send a copy of the Notice of Entry of Settlement Agreement, Instructions for Filing a Claim to be Considered for a Back Pay Award or Priority Hiring Consideration, and Interest-in-Relief Form (collectively, “Interest-in-Relief Form Documents”), in the formats set forth in Appendix B to each applicant who identified as African American when applying for any of the County’s selection processes for the
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entry-level police officer or cadet position and who took and failed the Challenged Written Exams between January 2010 and April 27, 2019. Such notice shall be sent by e-mail to the last-known e-mail address, if available, and via first-class U.S. mail to the last-known mailing address. The Claims Administrator will include a self-addressed return envelope, with postage prepaid, with the Interest-in-Relief Form Documents provided via first-class U.S. mail. 54. The Claims Administrator shall keep records of, and, if possible, shall re-send, all Interest-in-Relief Form Documents returned as undeliverable by the same procedures described in Paragraph 21. The Claims Administrator’s obligation to identify an updated electronic and/or postal mailing address and re-send the Interest-in-Relief Form Documents will end seventy-five (75) days after the Date of Entry of this Agreement. D. Submission of Interest-in-Relief Forms by Potentially Eligible Applicants 55. Any applicant who wishes to be considered for an award of Individual Relief under this Agreement must return a completed Interest-in-Relief Form (Appendix B) to the Claims Administrator no later than seventy-five (75) days after the Date of Entry of this Agreement. Any applicant who fails to return an Interest-in-Relief Form by the deadline shall be deemed to have waived any right to be considered for an award of Individual Relief under this Agreement, except for good cause as determined by the United States. 56. The submission date of each Interest-in-Relief Form shall be the date on which the form was e-mailed to the Claims Administrator, as determined by the e-mail date stamp, or the date on which the form was mailed to the Claims Administrator, as determined by the postmark. In the event the postmark is missing or illegible, the submission date of
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the Interest-in-Relief Form shall be deemed to be five (5) days prior to the date the form was received by the Claims Administrator. 57. The Claims Administrator will assign a Claimant ID number to each individual who submits an Interest-in-Relief Form. No later than eighty-five (85) days after the Date of Entry of this Agreement, the Claims Administrator shall provide to the Parties with two copies of all Interest-in-Relief Forms received by the Claims Administrator: (i) one copy as received, with the Claimant ID number marked on each page of the form; and (ii) one copy with the Claimant ID number marked on each page of the form and with all personally identifying information redacted. Specifically, on this second redacted copy, the Claims Administrator will redact Claimants’ names, social security numbers, dates of birth, addresses, telephone numbers, email addresses, signatures, and initials, as well as any other PII identified by the Parties. Copies of Interest-in-Relief Forms received by the Claims Administrator more than ten (10) days after the deadline for submission of claim forms will be provided to the Parties in the same format described above on a weekly rolling basis. E. Determination of Claimants’ Eligibility for Individual Relief 58. The United States will determine whether a Claimant is eligible for Individual Relief under this Agreement, subject to objection and Court approval process outlined below. 59. A Claimant is eligible for Back Pay Relief under this Agreement if: (i) the Claimant is African American; (ii) between January 2010 and April 27, 2019, the Claimant took and failed any of the Challenged Written Exams; and (iii) the Claimant met the minimum qualifications for employment that existed at the time the Claimant was disqualified by failure of any of the Challenged Written Exams. Claimants who are current
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BCPD police officers or cadets who otherwise satisfy the requirements set forth in this Paragraph 59 will be eligible for Back Pay Relief. 60. A Claimant is eligible for Priority Hiring Relief under this Agreement if the Claimant satisfies the criteria in Paragraph 59(i-iii) and meets the minimum qualifications in effect and required of all police officer and cadet applicants at the time the Claimant is completing the County’s screening and selection procedures. Claimants who are current BCPD police officers or cadets are not eligible for Priority Hiring Relief under this Agreement. 61. As of the date of the Parties’ execution of this Agreement, the minimum qualifications for hire as an entry-level police officer or cadet with the BCPD remain the same as those in place since January 1, 2010 and are:
a. Police officer applicants must be age 21 upon graduating from BCPD’s sixmonth police academy.
b. Police cadet applicants must be at least 18 years of age at the time of hire. They can apply at 17 1/2 years of age.
c. Both police officer and cadet applicants must not have: 1. Felony convictions that are not expunged. 2. Used marijuana within three years. 3. Ever used heroin, PCP or LSD.
F. Back Pay Relief 62. The United States shall determine which Claimants are eligible for Back Pay Relief
under Paragraph 59. In order to be eligible for Back Pay Relief, a Claimant need not express an interest in, or be eligible for, Priority Hiring Relief, or accept an offer of employment as an entry-level police officer or cadet in the BCPD.
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63. The United States shall determine each eligible Claimant’s back pay award exclusively from the Settlement Fund, such that awards from the Settlement Fund are distributed among all eligible Claimants who sought Back Pay Relief, taking into account when each Claimant was first disqualified by any of the Challenged Written Exams and the position for which they were eligible to be hired at the time they were first disqualified. The County’s limit of liability for Back Pay Relief shall not be greater than the total sum of Two Million Dollars ($2,000,000) deposited into the Settlement Fund, except as set forth in Paragraph 92.
G. Priority Hiring Relief 64. The United States shall determine each Claimant’s eligibility to participate in the pri-
ority hiring selection process subject to Paragraph 60. Eligibility to participate in the priority hiring selection process does not ensure a Claimant will receive an offer of priority hire from the County. The County shall require any Claimant deemed eligible for Priority Hiring Relief to successfully complete the County’s screening and selection procedures that are then in effect and required of all other entry-level police officer and cadet applicants. H. Proposed Individual Relief Awards List 65. No later than one hundred twenty (120) days after the Date of Entry of this Agreement, the United States shall provide the County with a Proposed Individual Relief Awards List that identifies by Claimant ID number: all Claimants who timely returned an Interest-in-Relief Form (or who falls within a good cause exception); the type of relief each Claimant sought; what, if any, relief the United States finds the Claimant eligible for based on the Interest-in-Relief Forms received by the Claims Administrator and any
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additional information submitted by the Claimant; if the United States finds the Claimant eligible for Back Pay Relief, the amount of Back Pay Relief that the United States has determined should be awarded to the Claimant; and, if the United States finds the Claimant ineligible for either type of relief sought, the reason for the United States’ determination that the Claimant is not eligible for such relief. 66. No later than one hundred fifty (150) days after the Date of Entry of this Agreement, the County shall notify the United States in writing if it objects to any of the United States’ determinations regarding eligibility for Priority Hiring Relief. The Parties shall attempt to resolve any objections submitted by the County to the United States’ determinations. VII. FAIRNESS HEARING ON INDIVIDUAL RELIEF A. Filing of Proposed Individual Relief Awards Lists with the Court 67. No later than one hundred eighty (180) days after the Date of Entry of the Agreement, the United States shall file with the Court and serve upon the County the Proposed Individual Relief Awards List, incorporating adjustments agreed to by the Parties as described in Paragraph 66. 68. At the same time, the United States will also file the redacted Interest-in-Relief forms provided by the Claims Administrator to protect Claimants’ privacy interests and personally identifiable information. B. Fairness Hearing on Individual Relief 69. Upon filing the Proposed Individual Relief Awards List, the United States shall simultaneously move the Court to hold a Fairness Hearing on Individual Relief to allow the Court to determine whether the Proposed Individual Relief Awards List should be approved or amended. The Court will provide the Parties with at least one hundred and
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twenty (120) days’ notice of the date and time set for the Fairness Hearing on Individual Relief. C. Notice of Preliminary Eligibility Determinations to Claimants 70. No later than ninety (90) days before the date set for the Fairness Hearing on Individual Relief, the Claims Administrator shall send to each Claimant who submitted an Interest-in-Relief Form via e-mail to the last-known e-mail address, if available, and via first-class U.S. mail to the last-known mailing address the following Notice of Individual Relief Fairness Hearing Documents:
a. A cover letter, in the format attached in Appendix C, notifying the Claimant of the determinations regarding the Claimant’s eligibility for Individual Relief under the Settlement Agreement, the reason(s) for any determination that the Claimant is ineligible for any particular form of requested relief, the Claimant’s proposed back pay award as stated on the Proposed Individual Relief Awards List, if any; and the Fairness Hearing on Individual Relief;
b. Instructions for Filing an Objection to Individual Relief and an Objection Form, in the formats attached as Appendix C; and
c. A return envelope addressed to the Claims Administrator with postage pre-paid. 71. The Claims Administrator shall keep records of, and, if possible, shall re-send, all No-
tice of Individual Relief Fairness Hearing Documents returned as undeliverable by the same procedures described in Paragraph 21. The Claims Administrator’s obligation to identify an updated electronic and/or postal mailing address and re-send the Notice of Individual Relief Fairness Hearing Documents will end fifty (50) days prior to the date set for the Fairness Hearing on Individual Relief.
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D. Objecting to Individual Relief Determinations 72. A Claimant who wishes to object to the United States’ determination regarding his or
her Individual Relief must file a written objection as follows: a. Objections shall be submitted to the Claims Administrator by completing the objection form included in Appendix C; such objections shall state the Claimant’s name, Claimant ID number, mailing address, telephone number, and email address, if any; set forth a specific description of the Claimant’s basis for disputing the relief determinations in the Proposed Individual Relief Awards List; include copies of all documentation supporting the objections; state the name, mailing and e-mail addresses, and telephone number of the Claimant’s counsel, if any; and state whether the Claimant wishes the opportunity to be heard in Court at the Fairness Hearing on Individual Relief. b. Objections submitted via mail must be postmarked no later than fifty (50) days prior to the date set for the Fairness Hearing on Individual Relief, and objections submitted via e-mail must be transmitted electronically no later than fifty (50) days prior to the date set for the Fairness Hearing on Individual Relief.
73. No later than forty-five (45) days prior to the Fairness Hearing on Individual Relief, and on a rolling weekly basis thereafter (if necessary), the Claims Administrator shall serve upon the Parties two copies of the objections it has received: (i) one copy as received by the Claimant and (ii) one copy with all personally identifiable information redacted. Specifically, for this second copy, the Claims Administrator will redact Claimants’ names, addresses, telephone numbers, email addresses, signatures, and any other information identified by the Parties.
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E. Filing Objections to Individual Relief 74. No later than ten (10) days prior to the Fairness Hearing on Individual Relief, the United
States shall file with the Court copies of all redacted objections received by the Claims Administrator to protect the privacy interests of the Claimants and their personally identifiable information. 75. No later than ten (10) days prior to the Fairness Hearing on Individual Relief, the Parties shall file their responses, if any, to all objections. The Parties’ responses will identify Claimants by Claimant ID number only and will not include any PII of the Claimants. In the County’s filing, the County may also address its unresolved objections made pursuant to Paragraph 66 in response to any of the United States’ eligibility determinations made pursuant to Paragraph 62, 63, and 64. 76. No later than the day of the Fairness Hearing on Individual Relief, the County shall provide the Claims Administrator and the United States with any and all withholding tax forms that the County will require Claimants to complete, as well as detailed instructions outlining what information must be included by Claimants on the withholding tax forms for them to be considered fully executed for purposes of processing payment to the Claimants. F. Amendment to Preliminary Individual Relief Awards List 77. At or after the Fairness Hearing on Individual Relief, the Court shall determine which, if any, objections to the Proposed Individual Relief Awards List are well-founded. The Court shall then approve the list as submitted or, if the Court finds that any objections are well-founded, shall request that the Parties make any necessary adjustments to the list consistent with such findings.
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78. The Court will find that an objection to Proposed Individual Relief Awards List, including an objection to the amount of Back Pay Relief to be awarded to a Claimant, is well-founded if the Court finds that the determination is not fair, adequate, and reasonable; or is otherwise inconsistent with the provisions of this Agreement or Title VII.
G. Approval of Final Individual Relief Awards List 79. If the Court determines that the Individual Relief awards are fair, adequate, and reason-
able, the Court shall approve the Individual Relief Awards List as final (the “Final Individual Relief Awards List”) at or after the Fairness Hearing on Individual Relief. VIII. EXECUTION OF INDIVIDUAL RELIEF A. Notice of Individual Relief Awards and Acceptance and Release 80. No later than twenty (20) days after the Court approves the Final Individual Relief Awards List, either at or after the Fairness Hearing on Individual Relief, the Claims Administrator shall provide notice to each Claimant determined by the Court to be entitled to such relief. 81. The Claims Administrator shall send notice to each Claimant via e-mail to the lastknown e-mail address, if available, and via first-class U.S. mail to the last-known mailing address. The notice shall include:
a. The Notice of Individual Relief Award in the form set forth in Appendix D; b. An Acceptance of Individual Relief Award and Release of Claims Form in the
form set forth in Appendix E. If the Claimant is eligible for Priority Hiring Relief, this form will include a statement of the Claimant’s eligibility for such relief and a description of the Retroactive Seniority, vacation benefits, and hiring bonus the Claimant will receive if he or she is ultimately selected as a Priority Hire; and
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c. Any withholding tax forms necessary for the County to comply with its withholding obligations under law and Paragraph 91 of this Agreement, as well as the detailed instructions referenced in Paragraph 76 outlining what information must be included by Claimants on the withholding tax forms.
d. A return envelope addressed to the Claims Administrator with postage pre-paid. 82. The Claims Administrator shall keep records of, and, if possible, shall re-send, all no-
tice documents described in Paragraph 81 that are returned as undeliverable by the same procedures described in Paragraph 21. The Claims Administrator’s obligation to identify an updated electronic and/or postal mailing address and re-send all notice documents described in Paragraph 81 will end eighty (80) days after the Court approves the Final Individual Relief Awards List. B. Acceptance of Individual Relief 83. To receive an award of Individual Relief, a Claimant must return to the Claims Administrator an Acceptance of Individual Relief Award and Release of Claims Form as set forth in Appendix E of this Agreement, along with any applicable withholding tax forms, no later than fifty (50) days after the Court approves the Final Individual Relief Awards List. 84. The submission date of each Acceptance of Individual Relief Award and Release of Claims Form shall be determined as described in Paragraph 56. 85. Within no more than five (5) business days of the Claims Administrator’s receipt of an Acceptance of Individual Relief Award and Release of Claims Form and any applicable withholding tax forms, the Claims Administrator shall review the form(s) to determine whether it is fully executed with the information that is necessary to effectuate the Claimant’s Individual Relief award.
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a. An Acceptance of Individual Relief Award and Release of Claims Form is fully executed if the Claimant completes all blanks that require a response as indicated by an asterisk on the form. A withholding tax form is fully executed based on whether it complies with the instructions provided to the Claims Administrator by the County pursuant to Paragraph 76.
b. If the form is not fully executed, within no more than five (5) business days of the Claims Administrator’s receipt of an Acceptance of Individual Relief Award and Release of Claims Form and any applicable withholding tax forms, the Claims Administrator shall notify the Claimant via e-mail, mail, and by telephone, if a telephone number is available, that his/her form(s) was not fully executed, providing a clear explanation of how his or her form was deficient. The Claims Administrator will include any new forms as necessary in the mail and email notifications.
c. The Claims Administrator shall continue to conduct such review of all returned forms and to notify Claimants who submitted forms that were not fully executed until the deadline set forth in Paragraph 88.
86. The Claims Administrator shall forward to the Parties copies of all Acceptance of Individual Relief Award and Release of Claims Forms and withholding tax forms it receives from Claimants named in the Final Individual Relief Awards List on a rolling weekly basis, with all timely forms to be forwarded to the Parties no later than fiftyfive (55) days after the Court approves the Final Individual Relief Award List.
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87. No later than sixty-five (65) days after the Court approves the Final Individual Relief Awards List, the Claims Administrator shall provide the Parties with a list of all Claimants who submitted Acceptance of Individual Relief Award and Release of Claims Forms and withholding tax forms, identifying which Claimants submitted fully executed forms, as described in Paragraph 85, and which Claimants submitted forms that were not fully executed.
88. No later than eighty (80) days after the Court approves the Final Individual Relief Awards List, Claimants whose Acceptance of Individual Relief Award and Release of Claims Form and/or any applicable withholding tax forms were not fully executed must provide any missing information, and must return fully executed forms. A Claimant’s failure to return fully-executed forms by this deadline, absent good cause as determined by the United States, shall constitute a rejection of the offer of Individual Relief and shall release the Parties from any further obligation under the Agreement to make an award of Individual Relief to the Claimant. No later than five (5) business days after this deadline, the Claims Administrator shall provide the Parties with all of the returned Acceptance of Individual Relief Award and Release of Claims Forms and any applicable withholding tax forms.
89. No later than ninety (90) days after the Court approves the Final Individual Relief Awards List, the Claims Administrator shall provide the Parties with an updated list of all of the Claimants who submitted Acceptance of Individual Relief Award and Release of Claims Forms and any applicable withholding tax forms, identifying which Claimants submitted fully-executed forms and which Claimants submitted forms that were not fully executed. If any Claimant listed on the Final Individual Relief Awards List
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rejects a Back Pay Relief award, the United States shall reallocate that amount of Back Pay Relief to other Claimants who timely returned all forms required by Paragraph 83, in a way which preserves the relevant proportions of the Claimants’ shares of the Settlement Fund as stated on the Final Individual Relief Awards List. Under no circumstances will the United States reallocate funds to Claimants in a way which would result in any Claimant receiving more than make-whole relief. No later than one hundred and five (105) days after the Court approves the Final Individual Relief Awards List, the United States shall provide the County and the Claims Administrator with an Amended Final Individual Relief Awards List. The Amended Final Individual Relief Awards List will identify whether each Claimant timely returned all forms required by Paragraph 83 and the amount of back pay award to be paid to each Claimant after accounting for the United States’ reallocation. The Amended Final Individual Relief Awards List shall also identify each Claimant who is eligible for Priority Hiring Relief. C. Issuance of Back Pay Award Checks by County 90. No later than one hundred thirty-five (135) days after approval of the Final Individual Relief Awards List or August 1, 2021, whichever date is later, the Claims Administrator shall mail via first-class U.S. mail with delivery tracking service a back pay award check to each Claimant listed on the Amended Final Individual Relief Awards List. The amount of the back pay award check shall be the amount shown for the Claimant on the Amended Final Individual Relief Awards List, less all appropriate taxes and other amounts withheld in accordance with Paragraph 91. 91. As directed by the County, the Claims Administrator shall withhold from each Claimant’s back pay award the Claimant’s portions of all federal, state, and local taxes, and
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any other amounts that are required to be withheld by law, including appropriate employee contributions to Medicare and the Social Security fund. The Claims Administrator shall be responsible for remitting the monetary sums and reporting such Claimant-side deductions and withholdings to the appropriate taxing authorities 92. The County shall be responsible for and will remit to the appropriate taxing authorities the County’s portion of all payroll taxes applicable for any Back Pay Relief award paid to a Claimant, including the County/employer contributions to Medicare and the Social Security fund. The employer portion of such taxes shall not be deducted from any Claimant’s Back Pay Relief award, and such amounts shall not be payable from the Settlement Fund. 93. The Claims Administrator shall keep records of, and, if possible, shall re-send, all back pay award checks returned as undeliverable by the same procedures described in Paragraph 21. The Claims Administrator’s obligation to identify an updated electronic and/or postal mailing address and re-send back pay award checks will end two hundred (200) days after the Claims Administrator first mails the back pay award checks. 94. No later than fifteen (15) days after the Claims Administrator mails the back pay award checks, the Claims Administrator shall provide to the Parties a statement indicating the amount of the monetary payment made to each Claimant, the amounts withheld from each such back pay award check for taxes and other amounts required to be withheld by law, and the purpose of each such withholding. 95. No later than thirty (30) days after the Claims Administrator mails the back pay award checks, the Claims Administrator shall provide to the Parties a list of all Claimants whose back pay award payments are still outstanding. The list shall identify which
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Claimant’s checks appear to have been delivered (no returned check) but have not been cashed, and which Claimant’s checks have been returned to the Claims Administrator as undeliverable. The Claims Administrator shall also provide a statement of the amount of funds remaining in the Settlement Fund. 96. No later than thirty (30) days after the Claims Administrator mails the back pay award checks, the Claims Administrator shall e-mail and mail a letter to all Claimants whose back pay award payments are still outstanding to inform such Claimants that their awards may be redistributed or otherwise reallocated if they do not accept payment by a specified date one hundred eighty (180) days after issuance of the check. 97. No later than one hundred and forty (140) days after the Claims Administrator mails the back pay award checks, the Claims Administrator shall provide to the Parties an updated list of all Claimants whose back pay award payments are still outstanding. The updated list shall identify which Claimant’s checks appear to have been delivered (no returned check) but have not been cashed, and which Claimant’s checks have been returned to the Claims Administrator as undeliverable. The Claims Administrator shall also provide a statement of the amount of funds remaining in the Settlement Fund. 98. No later than one hundred and fifty (150) days after the Claims Administrator mails the back pay award checks, the Claims Administrator shall e-mail and mail a letter to all Claimants whose back pay award payments are still outstanding to provide such Claimants with final notice that their awards may be redistributed or otherwise reallocated if they do not accept payment by a specified date one hundred eighty (180) days after issuance of the check. The letter shall state that no further warnings regarding such distribution will be given.
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99. No later than one hundred ninety (190) days after the Claims Administrator mails the back pay award checks, the Claims Administrator shall provide the Parties with a list of all Claimants whose back pay award checks were returned as undeliverable and/or uncashed, as well as a statement of the amount of funds remaining in the Settlement Fund.
100. No later than two hundred (200) days after the Claims Administrator mails the back pay award checks, the United States shall inform the County and the Claims Administrator either that: (1) the remaining funds should be reallocated among the other Claimants who are listed on the Amended Final Individual Relief Awards List in a manner designed to preserve the relative proportions of the Claimants’ shares of the Settlement Fund, or (2) that reallocation is unnecessary because the United States determines either that remaining funds are de minimis or that all other Claimants listed on the Amended Final Relief Awards List have already received make-whole relief. Under no circumstances will the United States reallocate funds to Claimants in a way which would result in any Claimant receiving more than make-whole relief. If the United States determines that reallocation is unnecessary, any remaining funds should be returned to the County.
D. Priority Hiring Relief 101. From the Claimants on the Amended Final Individual Relief Awards List who are
deemed eligible for Priority Hiring Relief, the County shall make up to, but no more than, twenty (20) Priority Hires. Subject to the terms and limitations in this Agreement, all individuals selected to be Priority Hires will receive (i) an award of Retroactive Seniority corresponding with the Claimant’s retroactive seniority date for purposes of calculating an individual’s the regular rate of pay (and any other types of pay calculated
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based on the regular rate), annual leave, vacation accrual after the Priority Hire’s first year of employment, layoffs/reductions in work force, recall from layoffs/reduction in work force, assignments to specialized units (e.g., Homicide), and transfers between precincts, as described in Paragraph 111; (ii) a hiring bonus in lieu of retroactive pension benefits as described in Paragraph 112; and (iii) vacation days granted upon graduation from the Academy as described in Paragraph 113. 102. To count as a Priority Hire under this Agreement, the person must be a Claimant who is eligible for Priority Hiring Relief as indicated by the Amended Final Individual Relief Awards List and who is hired by the County after receiving an offer of priority hire as defined by Paragraph 109. A Claimant is considered hired by the County when the Claimant begins his or her first day of paid employment in the BCPD Academy. 103. Nothing in this Agreement shall preclude any Claimant from applying for hire or being hired into the entry-level police officer or cadet position under any of the County’s regular selection processes. However, hire of a Claimant under one of the County’s regular selection processes, whether or not the hiring predated the Date of Entry of the Agreement, shall not be counted toward fulfillment of the County’s priority hiring obligations under this Agreement. Hire of a Claimant under one of the County’s regular selection processes shall not affect the Claimant’s eligibility for Back Pay Relief under this Agreement. The County also may not refuse to select or hire a Claimant under one of its regular selection processes because the Claimant is eligible for Individual Relief under this Agreement. 104. The County’s priority hiring obligation under this Agreement is satisfied when either (a) twenty (20) eligible Claimants from the Amended Final Individual Relief Awards
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List have been hired, or (b) all eligible Claimants from the Amended Final Individual Relief Awards List have either been (i) hired as Priority Hires pursuant to the terms of this Agreement (ii) disqualified from hire in a manner consistent with the terms of this Agreement; (iii) rejected an offer of priority hire (including by failing to timely accept an offer of priority hire, absent good cause as determined by the United States), (iv) accepted an offer of priority hire but failed to appear to begin the BCPD Academy on the date scheduled without good cause as determined by the United States, (v) or have failed the post-offer medical or psychological examination, or other post-offer requirement regularly required of newly-hired police officers or police cadets.
i. Selection Process 105. To obtain an offer of priority hire, eligible Claimants must appear for and successfully
complete the County’s police officer and cadet screening and selection procedures that are then in effect and required of all other police officer and cadet applicants. The County must invite eligible Claimants to begin the selection process by providing them with notice (via mail and email if provided) of administration dates for the New Selection Device after the United States provides the County and the Claims Administrator with an Amended Final Individual Relief Awards List. The notice must: (i) identify the dates of all upcoming administrations of the New Selection Device that will occur within six months of the date the notice is mailed, (ii) be sent at least thirty (30) days prior to the earliest administration date of the New Selection Device identified in the notice, and (iii) be updated and re-sent if the County adds any additional test administration dates that will occur within six months of the original notice.
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106. The County may propose disqualification of a Claimant from an offer of priority hire if: (a) the Claimant fails to take the New Selection Device agreed upon by the Parties pursuant to Section V.D. of this Agreement within six (6) months from the date that the Claimant was invited to take such selection device (after the United States provides the County with the Amended Final Individual Relief Awards List); or (b) the Claimant fails to continue with the next step in the selection process within one year of taking the New Selection Device. The County shall make reasonable efforts as with all other applicants to accommodate Claimants in scheduling the screening and selection procedures that are then in effect and required of all other police officer and cadet applicants.
107. If the County disqualifies any Claimant listed on the Amended Final Priority Hire Claimant List based on any part of its screening and selection process before fulfilling its priority hiring obligations under the Agreement, the County shall, within ten (10) days of making such determination, send the United States written notice of its determination, the basis of its determination, and any supporting documentation. If the United States disagrees with the County’s determination to disqualify any Claimant, it shall notify the County in writing within ten (10) days of its receipt of the County’s determination, and the Parties shall make a good faith effort to resolve the disagreement. If the Parties cannot resolve the disagreement, either Party may seek judicial resolution pursuant to the dispute resolution procedures set forth at Paragraph 122. In any proceedings regarding such a dispute as to whether a Claimant is properly disqualified from hire based on the screening and selection process, the County shall bear the burden of proving by a preponderance of the evidence that the Claimant is not presently
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qualified pursuant to its screening and selection procedures that are then in effect and required of all other police officer and cadet applicants.
ii. Offer of Priority Hire 108. The County will provide the Claimant with a written offer of priority hire upon a Claim-
ant’s successful completion of the County’s entry-level police officer and cadet screening and selection procedures that are then in effect, that are required of all other entrylevel police officer and cadet applicants; provided that, if the offer of priority hire would lead to more than ten (10) Priority Hires being in the same BCPD Academy class, the County shall delay written offers of priority hire to additional individuals until the following Academy class. The County will endeavor to make offers of priority hire as early as possible upon a Claimant’s successful completion of the County’s entry-level police officer and cadet screening and selection procedures, so that if a Claimant rejects an offer of priority hire or does not timely respond to an offer of priority hire, the County will have sufficient time prior to the next BCPD Academy class to appoint ten (10) Priority Hires. The County will not make offers of priority hire within twenty-eight (28) days of the starting date of the Academy class to which the individual is being invited, unless the Parties mutually agree in writing otherwise. 109. The written offer of priority hire will be sent via first-class U.S. mail and email, and prominently indicate: (i) that the offer is an offer of priority hire being made pursuant to the Agreement; (ii) that, upon entry into the BCPD Academy, the Claimant will be entitled to Retroactive Seniority corresponding with the Claimant’s retroactive seniority date as provided by this Agreement, as well as, subject to the terms of this Agreement, a hiring bonus and additional vacation days as provided by this Agreement; (iii) the specific starting salary that the County will provide upon entry into the BCPD
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Academy and the retroactive seniority date used to calculate the other Retroactive Seniority benefits ; (iv) the amount of the hiring bonus and number of additional vacation days that the County will provide and when the County will provide those benefits; (v) the telephone number at which the Claimant may contact the County’s Settlement Agreement Compliance Officer with any questions regarding the offer of priority hire; (vi) the date on which the Claimant will begin police academy training if the offer is accepted; (vii) that the Claimant has fourteen (14) days from the date on which the Claimant receives the written offer of priority hire to notify the County that the Claimant accepts the offer; and (viii) that the County will keep the Claimant’s designation as a Priority Hire pursuant to this Agreement confidential and will not disclose the Claimant’s designation as a Priority Hire in any document filed with the Court without a Court order permitting disclosure. On the date that such an offer of priority hire is provided to a Claimant, the County shall send a copy of the offer of priority hire to the United States. 110. If a Claimant fails to report to the BCPD Academy on the start date identified in the County’s offer of priority hire, after accepting the County’s offer, then except for good cause as determined by the Parties, the County’s obligation to provide the offer to or make a priority hire of that Claimant ceases. However, such instances shall not constitute priority hiring under Paragraph 102 and shall not decrease the number of priority hires that the County must make under Paragraph 101.
iii. Retroactive Seniority to Claimants Hired 111. On the date on which a Claimant who is hired as a Priority Hire enters the BCPD Acad-
emy, the County shall credit the Claimant with a retroactive seniority date for purposes of calculating the regular rate of pay (and any other types of pay calculated based on
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the regular rate), annual leave, accrual of vacation leave after the first year of employ-

ment, layoffs/reductions in work force, recall from layoffs/reduction in work force, as-

signments to specialized units (e.g., Homicide), and transfers between precincts. The

Parties agree that in considering assignments to specialized units, Retroactive Seniority

will be used exactly as seniority is used in this process, pursuant to the Memorandum

of Understanding Between the Baltimore County Administration and the Fraternal Or-

der of Police, Lodge #4. As of the date of this Agreement, Section 13.3 of the MOU

governs assignments to specialized units (though it refers to these assignments as

“transfers”) and specifically states that seniority is used only when other specified fac-

tors are relatively equal. Claimants will not be granted retroactive seniority for pur-

poses of scheduling the following: leave, personal time, vacation time, or days off from

work of any type of nature. Retroactive Seniority will not be used to satisfy any appli-

cable probationary periods or any time-in-grade minimums required to be eligible for

promotions, assignments, or transfers. The retroactive seniority date credited to a

Claimant will correspond to the date associated with the year in which the Claimant

first took and failed any of the Challenged Written Exams, as outlined below.

Year Claimant First Took and Failed Any Challenged Written Exam

Retroactive Seniority Date

2010-2013

7/1/2015

2014

7/1/2016

2015

7/1/2016

2016

7/1/2017

2017

7/1/2018

2018

7/1/2019

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2019

7/1/2020

iv. Hiring Bonus for Claimants Hired 112. The County will pay a hiring bonus to each Claimant who is hired as a Priority Hire in

lieu of retroactive pension benefits subject to the terms and limitations in this Agree-

ment. The amount of the hiring bonus paid to each such Claimant will correspond to

the year in which the Claimant first took and failed any of the Challenged Written Ex-

ams, as outlined below, subject to the condition that the Claimant is employed with the

County on the date the hiring bonus obligation matures. For hiring bonus payments

below $10,000, the County will pay the hiring bonus to the Claimant in one lump sum

four (4) months after the Claimant’s successful completion of the BCPD Academy.

For hiring bonus payments above $10,000, the County will pay the hiring bonus to the

Claimant in two installments: the County will pay fifty percent (50%) of the hiring

bonus four (4) months after completion of the BCPD Academy, and the remaining fifty

percent (50%) ten (10) months after completion of the BCPD Academy. For each pay-

ment, the hiring bonus matures the date that payment is due and owing and in the case

of installment payments, matures in part, on the date each installment payment is due.

Year Claimant First Took and Failed Any Challenged Written Exam
2010-2013 2014 2015 2016 2017 2018

Hiring Bonus
$22,124.75 $22,124.75 $18,297.89 $14,353.69 $10,330.61 $6,227.08

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2019

$2,123.55

v. Vacation Benefits for Claimants Hired 113. The County will grant a certain number of vacation days to each Claimant who is hired

as a Priority Hire for their first year of employment. The number of vacation days

granted to each such Claimant for their first year of employment will correspond to the

year in which the Claimant first took and failed any of the Challenged Written Exams,

as outlined below. Each such Claimant will receive these vacation days upon success-

ful completion of the BCPD Academy.

Year Claimant First Took and Failed Any Challenged Written Exam
2010-2013 2014 2015 2016 2017 2018 2019

Vacation Days to Be Granted for First Year 19 19 19 13 13 13 13

vi. County’s Reports to the United States on Claimants Hired 114. No later than thirty (30) days after the beginning of any BCPD Academy class for
which offers of priority hire are made, the County shall provide to the United States a written report identifying: (i) the name of each Claimant who was offered a priority hire position; (ii) whether each such Claimant accepted the offer of a priority hire position; (iii) whether each such Claimant began the BCPD Academy and was credited

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with Retroactive Seniority; and (iv) for any Claimant who did not begin the BCPD Academy, a statement of the reason(s) that any Claimant was not hired, along with all available documentation relating to such reason(s). 115. No later than thirty (30) days after the completion of any BCPD Academy class for which offers of priority hire have been made, the County shall provide to the United States a written report identifying those Claimants who successfully completed academy training and those who did not successfully complete academy training. For Claimants who did not successfully complete academy training, the report shall include a statement of the reason(s) that the Claimant did not complete academy training, along with all available documentation relating to such reason(s). For those Claimants who successfully completed academy training, this report shall also confirm that vacation benefits were credited to the Claimant pursuant to Paragraph 113 and identify the number of vacation days credited to each such Claimant. 116. No later than eleven (11) months after the completion of any BCPD Academy class that includes Priority Hires, the County shall provide to the United States a written report identifying the hiring bonuses that have been paid to Priority Hires attending that particular BCPD Academy. E. Confidentiality of Individual Relief 117. The Parties agree that they will keep confidential the names and personally identifiable information (“PII”) of any individual who seeks or receives relief under this Agreement, including, but not limited to, the identity of individuals designated as Priority Hires pursuant to this Agreement. The Parties will not file any document with the Court that identifies the name or other PII of any individual seeking or receiving relief under this Agreement absent a court order permitting disclosure.
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IX. RECORD KEEPING AND COMPLIANCE MONITORING 118. While this Agreement remains in effect, the County shall maintain all of the following records: a. All applications for the entry-level police officer and cadet positions; b. All documents relating to the screening, evaluation, or selection of applicants for the position of entry-level police officer and cadet, other than documents the County is contractually obligated to return to a test developer after use thereof; c. All data and documents relating to the administration of any selection device adopted or utilized pursuant to this Agreement, including, but not limited to, the interim written examination and the New Selection Device; d. All documents relating to written or verbal complaints made by any person or organization regarding (i) discrimination on the basis of African American race in the appointment of applicants to the entry-level police officer or cadet position; or (ii) retaliation prohibited by Paragraph 31 above; e. All documents relating to the evaluation, selection, designation, and/or employment of Priority Hires under this Agreement; and f. All other documents relating to the County’s compliance with the requirements of this Agreement, including but not limited to documents relating to the payment or award of Individual Relief to any Claimant under this Agreement. 119. Except as otherwise provided in this Agreement, the County will make available to the United States, no later than thirty (30) days after the United States so requests in writing, any records maintained in accordance with Paragraph 118, and any additional documents relating to any dispute arising under the Agreement.
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120. When possible, all records furnished to the United States shall be provided in a computer-readable format to be agreed upon by the Parties prior to production.
121. Within thirty (30) days after the United States so requests in writing, the County shall make available in Baltimore County for interview or deposition (at the United States’ option) any agent, employee, or official of the County who the United States reasonably believes has knowledge or information necessary to verify the County’s compliance with the terms of this Agreement or to resolve a dispute arising under this Agreement.
X. DISPUTE RESOLUTION 122. The Parties shall attempt in good faith to resolve informally any disputes that arise under this Agreement. If the Parties are unable to resolve the dispute expeditiously, either party may submit the disputed issue to the Court for resolution upon fifteen (15) days written notice to the other party, unless a different time period has been specified elsewhere in the Agreement.
XI. DURATION OF THE SETTLEMENT AGREEMENT 123. Provided there are no outstanding disputes being resolved pursuant to Paragraph 122, this Agreement shall be dissolved without further order of the Court upon the occurrence of the latest of the following three events: a. Fulfillment of the Parties’ obligations regarding General Injunctive Relief set forth in Paragraphs 33 through 47 of this Agreement; b. Completion of the process regarding issuance of back pay award checks set forth in Paragraphs 90 through 100 of this Agreement; and c. The passage of forty-five (45) days after the date the County provides the last of the reports and statements regarding Priority Hires required by Paragraphs 114, 115, and 116 of this Agreement. The Parties specifically agree that this 57

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Agreement may dissolve pursuant to this Paragraph even if the County does not hire twenty (20) priority hires, provided that the County has satisfied the priority hiring obligations outlined in Paragraph 104. 124. Upon motion by the County, the Court may terminate any provision of the Agreement if the County demonstrates that it has fulfilled the obligations required by the provision. XII. COSTS AND FEES 125. The County shall bear all of the costs incurred by the Claims Administrator in the implementation of the Agreement, including the cost of all notification and publication procedures required by this Agreement. 126. Other than the payment of costs pursuant to Paragraph 125, each party shall bear its own costs, and other expenses incurred as a result of obligations imposed by this Agreement. 127. Each party shall bear its own costs, attorneys’ fees, and other expenses incurred in this litigation. 128. This Settlement Agreement does not require the County to pay fees, costs, or expenses other than those associated with the obligations set forth in this Agreement. Further, this Settlement Agreement does not entitle persons other than those listed in the Amended Final Individual Relief Awards List to individual relief based on the allegations made in the aforementioned Complaint filed in August 2019. Notwithstanding the foregoing, this Agreement does not guarantee that the County will not be subject to litigation initiated by third parties, even if the Agreement could serve as a defense to liability in such litigation. The Parties agree that this Agreement is final and binding as to the allegations raised in the United States’ Complaint, and the United States agrees that, subject to the Court’s approval of this Agreement, it will not file a separate lawsuit
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re-asserting that the County’s use of the Challenged Written Exams caused an unlawful disparate impact on African American police officer and police cadet applicants in violation of Title VII. XIII. MISCELLANEOUS 129. The Court shall retain jurisdiction over this Agreement for the purpose of resolving any disputes or entering any orders that may be appropriate to implement the Agreement until the obligations set forth in Paragraph 123 have been met. 130. The Parties shall, at a minimum, meet bi-annually (in person or by telephone, at the option of the Parties) during the duration of the Agreement to discuss any issues relevant to implementation of the Agreement. Six months after the Fairness Hearing on Individual Relief, and every six months thereafter for the duration of the Agreement, the Parties shall file a status report with the Court. The status report will identify the settlement implementation obligations that have been fulfilled in the prior six months. 131. If there is any conflict between this Agreement and the requirements of any state or local law or regulation, Federal law and the terms of this Agreement shall control. 132. This Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements, representations, negotiations, and undertakings not set forth or incorporated herein. 133. The Parties agree that the text of this Agreement will control, not the document headings or titles. 134. Unless the parties have agreed in writing otherwise, all written information and documents required to be delivered under this Agreement to the United States by the County shall be sent via electronic mail to the attorneys of record on this case. To the extent documents are too large to transmit via electronic mail, the County should consult with
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the United States at least seven (7) business days prior to the relevant deadline to discuss an alternate form of delivery. 135. Unless the parties have agreed in writing otherwise, all written information and documents required to be delivered under this Agreement to the County by the United States shall be sent via electronic mail to the attorneys of record on this case. To the extent documents are too large to transmit via electronic mail, the United States should consult with the County at least seven (7) business days prior to the relevant deadline to discuss an alternate form of delivery. 136. If any provision of this Agreement is found to be unlawful, only the specific provision in question shall be affected, and the other provisions will remain in full force and effect. 137. Final entry of this Agreement constitutes the entry of final judgment within the meaning of Rule 54 of the Federal Rules of Civil Procedure as to all claims asserted in this action. It is so ORDERED, this ____ day of __________________, 2021.
__________________________________________ JUDGE CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE
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CONSENTED TO BY:

FOR PLAINTIFF UNITED STATES OF AMERICA: BY:

ERIC S. DREIBAND Assistant Attorney General
DELORA L. KENNEBREW Chief
MEREDITH L. BURRELL Deputy Chief
/s/ Kathleen O. Lawrence KATHLEEN O. LAWRENCE

10/30/20 DATE

/s/ Ejaz. H. Baluch, Jr. EJAZ H. BALUCH, JR.
Trial Attorneys U.S. Department of Justice Civil Rights Division Employment Litigation Section 4 Constitution Square 150 M Street, NE / Room Number 9-932 Washington, DC 20002 Telephone: (202) 616-9100 Facsimile: (202) 514-1005

10/30/20 DATE

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FOR DEFENDANT BALTIMORE COUNTY, MARYLAND: BY:

____________________ ___ STACY L. RODGERS County Administrative Officer
Signed in the presence of:
______________________ Witness Signature
___L_e_s_l_ie__W__ig_f_ie_l_d_______ Witness Name (Printed)

___1_0_/2_7__/2_0_2_0________ DATE
__1_0__/2_7_/_2_0_2_0_________ DATE

Reviewed and Approved for Form and Legal Sufficiency:

_______________________ JAMES R. BENJAMIN, JR. County Attorney Baltimore County Office of Law 400 Washington Avenue Towson, MD 21204 Telephone: 410-887-4420

October 27, 2020 _______________________ DATE

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 Case 1:19-cv-02465-CCB Document 45 Filed 05/19/21 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA

*

*

*

v.

*

*

*

BALTIMORE COUNTY, MARYLAND *

******

Civil Action No. CCB-19-2465

MEMORANDUM

This case involves an alleged pattern or practice of discrimination in hiring entry-level

police officers and cadets for the Baltimore County Police Department (“BCPD”). Following a

multi-year investigation and extended negotiations, the plaintiff United States of America and the

defendant Baltimore County, Maryland, jointly move for the entry of an Amended Settlement

Agreement (“Agreement”) as final. A fairness hearing on the terms of the Agreement was held on

April 6, 2021. For the reasons explained below, the court concludes that that terms of the

Agreement are fair, adequate, reasonable, lawful, and not a product of collusion or against the

public interest. All objections to the Agreement will be overruled, and the joint motion to enter the

Agreement as final will be granted.

BACKGROUND

The United States filed a complaint against Baltimore County on August 27, 2019, pursuant

to Section 707 of Title VII, 42 U.S.C. § 2000e-6(a), (ECF 1, Compl.). The United States alleged

that, since January 1, 2013, the County used written examinations for selecting entry-level police

officers and cadets that had a disparate impact on African American applicants and were not job-

related and consistent with business necessity. (Id. ¶¶ 14–25). The County denies liability. (ECF

13, Answer). The parties engaged in settlement discussions beginning in the second half of 2019,

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and participated in several mediation sessions facilitated by Magistrate Judge Susan K. Gauvey. On November 4, 2020, the parties submitted to the court a proposed settlement agreement. (ECF 37-1, Memo. ISO Joint Mot. to Provisionally Enter Settlement Agreement). On November 18, 2020, the court granted the parties’ motion to provisionally enter the Agreement and scheduled a fairness hearing for April 6, 2021. (ECF 38). On March 29, 2021, the parties submitted an amended Agreement (ECF 42-3) and a joint motion to enter the Agreement as final (ECF 42).1 For purposes of resolving this matter, the parties stipulate to the following.
Since at least 2009, the County has used a multiple-choice written exam to begin its selection process for entry-level police officers and cadets at the BCPD.2 (42-3, Agreement § I.A). From 2009 through April 2019, four versions of this exam (the “challenged exams”) were used to screen applicants based on whether they achieved a predetermined score on the exam. (Id. §§ I.B. ¶¶ i–ix, II ¶ 8). On the three exams administered between 2009 and September 2016, African American applicants passed the exams at a lower rate than white applicants, and these disparities were statistically significant. (Id. § I.B. ¶¶ i–ix). A fourth exam, administered from September 2016 through April 27, 2019, was nearly identical to the one used from 2015 to September 2016. (Id.). The United States contends that approximately twenty-three additional African American applicants would have been hired into entry-level police officer and/or cadet positions with the BCPD since January 1, 2013, absent the County’s use of the challenged exams. (Id. ¶ x). Though
1 The amended version of the Agreement incorporates strictly technical revisions to address some administrative aspects of the claims process applicable following the approval of the Agreement. Those revisions do not affect the interests of third parties to the Agreement. 2 Applicants also must pass additional screening measures, including a physical agility test, a medical exam, a psychological evaluation, and a background investigation. Those measures are not at issue in this case.
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it does not admit liability, the County stipulates that the United States contends that the use of the exams was not job related and consistent with business necessity. (Id.¶¶ xi–xii).
The Agreement will replace the challenged exams with a new selection device that promotes the County’s public safety need to hire qualified police officer and cadet candidates and also complies with Title VII; and will provide individual relief to eligible claimants who, the United States alleges, were not considered for employment due to the challenged exams. To further those purposes, the Agreement provides for injunctive and individual relief. (Id. § III).
I. Injunctive Relief The County will be enjoined from using the challenged exams and from using any written
exam as part of the selection process for entry-level police officers or cadets in any manner that results in a disparate impact upon African American applicants and is not shown to be job related and consistent with business necessity. (Id. § V.A ¶¶ 28–29).3 The County will administer a written
exam as a selection device only with the consent of the United States or, if the parties cannot reach agreement, with the approval of the court. (Id. § V.A. ¶ 30).
In place of the challenged exams, the County will adopt and use a new selection device that has no statistically significant adverse impact on the basis of race, or, if it has such impact shall have been demonstrated to be job related for the police officer and cadet position and consistent with business necessity. (Id. § V.D. ¶ 40). The new selection device will be developed
3 Because the development of a new selection device to replace the challenged written exams will take some time, the parties have agreed that the County will be permitted to use the National Police Officer Selection Test as a selection device on an interim basis. (Id. § V.C. ¶¶ 33–34). The Agreement includes provisions that enable the United States to determine, after the new selection device is in place, whether the use of the interim exam complied with Title VII. If the exam is found not to comply with Title VII, that will trigger additional individual relief, including the priority hiring of up to six people from the pool of African American applicants who fail the interim exam but pass the new selection device. (Id. ¶¶ 35–39).
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by a third-party test developer selected in accordance with the Agreement. (Id. ¶ 41). The Agreement includes standards for validating the new selection device and a timeline for its development, validation, approval by the United States or the court, and implementation. (Id. ¶¶ 41–47).
II. Individual Relief The Agreement provides for two forms of individual relief: back pay and priority hiring.
(Id. § VI.A. ¶ 48). Individual claimants will be eligible for relief if: (i) they are African American; (ii) between January 2010 and April 27, 2019, they took and failed any of the challenged exams; and (iii) they meet the minimum qualifications for employment that existed at the time they were disqualified, and, only in the case of priority hiring relief, if they meet the minimum qualifications in effect and required of all police officer and cadet applicants at the time they are completing the screening and selection procedures. (Id. §VI.E. ¶ 59–61).4 5
The United States will provide the County with a proposed individual relief awards list that identifies the claimants, the type of relief they sought, the relief for which the United States finds them eligible, and, if the United States finds them eligible for back pay, the amount of back pay to be awarded. (id. § VI.H. ¶ 65). The list will be provided to the County no later than 120 days after the date of entry of the Agreement. (Id. § VI.H. ¶ 65).
Claimants will be permitted to object to the United States’ determination regarding their individual relief in accordance with the Agreement following its entry. (Id. VII.D. ¶ 71). The
4 Current BCPD polices officers are eligible for back pay relief, but are not eligible for priority hiring relief. (Id. ¶ 60). 5 The Agreement also establishes a procedure which applicants who wish to be considered for individual relief under the Agreement must follow in order to be considered for such relief. (Id. §§ VI.C–D).
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County also may object in writing to any of the United States’ determinations regarding eligibility for priority hiring relief. (Id. § VI.H. ¶ 66). The court will hold a fairness hearing on individual relief awards and shall approve the United States’ amended list of individual relief awards as final if it determines the awards to be fair, adequate and reasonable. (Id. § VII.G.).
a. Back Pay Relief The County agrees to establish a two-million-dollar ($2,000,000) settlement fund from which back pay relief will be distributed to eligible claimants. (Id. § VI.B.). Claimants eligible for back pay relief will receive an award from the settlement fund as determined by the United States, and approved by the court, taking into account when each claimant was first disqualified by any of the challenged exams and the position for which they were eligible to be hired at the time they were first disqualified. The County’s limit of liability for back pay shall be no greater than $2,000,000.6 (Id. §§ VI.F. ¶ 63, VII.G. ¶78, VIII.A–C.).
b. Priority Hiring Relief From the claimants eligible for priority hiring relief under the amended final individual relief awards list, the County shall make up to twenty priority hires. (Id. § VII.D. ¶ 100). Priority hires will receive (i) an award of retroactive seniority; (ii) a hiring bonus in lieu of retroactive pension benefits; and (iii) vacation days granted upon graduation from the BCPD academy. (Id. ¶¶ 100, 110–12). Eligible claimants must appear for and successfully complete the County’s police officer and cadet screening and selection procedures that are then in effect and required of all other
6 But the County also will be responsible for the county’s portion of payroll taxes and Medicare and Social Security contributions applicable to any back pay relief award. These amounts will not be deducted from any back pay relief and will not be payable from the settlement fund. (Id. § VIII.C. ¶ 91).
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police officers and cadets. (Id. ¶ 104). A written offer of a priority hire is conditional on successful completion of the screening and selection procedures. (Id. ¶ 107).
Claimants will receive retroactive seniority for the purposes of calculating an individual’s regular rate of pay, annual leave, vacation accrual after the first year of employment, layoffs/reductions in work force, recall from layoffs/reduction in work force, assignments to specialized units, and transfers between precincts. (Id. ¶ 110). Retroactive seniority will not be granted for the purposes of scheduling leave, personal time, vacation time, or days off from work of any type, nor will it be used to satisfy any applicable probationary periods or any time-in-grade minimums required to be eligible for promotions, assignments, or transfers. (Id.).
III. Required Notice and Processes to Protect the Agreement from Collateral Attack To protect against later challenges to the Agreement, see 42 U.S.C. § 2000e-2(n)(1), and
enable the court to hear any third-party objections to the Agreement, the Agreement provides for two fairness hearings—one on the Agreement itself prior to its final approval, and one on the individual relief, discussed above, to be held prior to the implementation of that relief. (ECF 42-3, Agreement §§ IV, VII). Prior to the fairness hearing on the Agreement held April 6, 2021, persons whose interests might be affected by the Agreement were provided with notice of the Agreement and of the hearing and were provided an opportunity to object to the Agreement. (Id. §§ IV.C–E). This court has reviewed the written objections to the Agreement received by the parties, and eight individuals who objected to the Agreement spoke on the record during the April 6, 2021, fairness hearing.
The parties agree, and the court is satisfied, that the notice provisions of the Agreement and procedures set forth therein are sufficient to meet the requirements of Section 703(n)(1) of
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Title VII, 42 U.S.C. § 2000e-2(n)(1) and to protect the Agreement from collateral attack, while
addressing due process concerns.7
STANDARD OF REVIEW
In considering whether to enter a proposed settlement agreement in a Title VII pattern or
practice suit, the court is guided by the general principle that settlements are encouraged under
Title VII. See United States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999); Carson v. Am.
Brands, Inc., 450 U.S. 79, 88 n.14 (1981). The court “must satisfy itself that the agreement is fair,
adequate, and reasonable, and is not illegal, a product of collusion, or against the public interest.”
L.J. Wilbon, 633 F. 3d 297, 311 (4th Cir. 2011) (quoting North Carolina, 180 F.3d at 581).
7 Section 703(n)(1) of Title VII provides: (A) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or Federal civil rights laws may not be challenged under the circumstances described in subparagraph (B). (B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws-(i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had-(I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and (II) a reasonable opportunity to present objections to such judgment or order; or (ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.
42 U.S.C.A. § 2000e-2(n)(1).
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The fairness of the proposed agreement is judged “by weighing the plaintiff's likelihood of success on the merits against the amount and form of the relief offered in the settlement.” Carson, 450 U.S. at 88 n.14. This assessment is not to be on the scale of “a trial or a rehearsal of the trial[;]” but the court must ensure that it reaches “an informed, just and reasoned decision.” North Carolina, 180 F.3d at 581 (internal quotation marks omitted). The court must also consider “the extent of discovery that has taken place, the stage of the proceedings, the want of collusion in the settlement and the experience of plaintiffs’ counsel who negotiated the settlement.” Id.
DISCUSSION I. Fairness, Adequacy, and Reasonableness
a. The United States Is Likely to Succeed on the Merits Under Title VII The United States’ complaint alleges that the County used policies and practices that discriminate against African Americans because of their race, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a)’s mandate that employers may not engage in practices that “adversely affect” or have a disparate impact on an individual’s status as an employee because of their race. (ECF 1, Compl. ¶ 25). Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). For example, testing mechanisms used to screen potential employees are unlawful under Title VII if they disproportionately screen out African American candidates compared with their white counterparts and the test is shown to be unrelated to measuring the candidates’ job capabilities. Id. at 432; see also 42 U.S.C. § 2000e-2(k). The United States alleges that the County’s use of the challenged exams in the selection of entry level police officers and cadets has had an unlawful
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disparate impact on African American applicants and is not job related and consistent with business necessity as required by 42 U.S.C. § 2000e-2(k).
Were this case to proceed to trial, the United States would first be required to establish a prima facie case of discrimination, by showing that the challenged exams disproportionately impact (that is, they disproportionately exclude) African American applicants. See 42 U.S.C. § 2000e-2(k)(1)(A)(i). Plaintiffs commonly establish evidence of such a disparate impact using statistical evidence that shows members of a protected class are less likely to pass the test in question, to a degree that the disparity raises “an inference of causation.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 (1988); see also Walls v. City of Petersburg, 895 F.2d 188, 191 (4th Cir. 1990).
In this case, the United States analyzed the pass rates for African American applicants compared to white applicants on each of the challenged exams. For the purposes of the Settlement Agreement, the parties have stipulated that the results of those analyses showed that for each challenged exam, African American applicants passed at a lower rate than white applicants, and that, using a standard deviation analysis, the disparities were shown to be statistically significant.8
(ECF 42-3, Amended Settlement Agreement § I.B ¶¶ iii, v, vii, ix). A standard deviation analysis is a method of determining whether the “underrepresentation of a protected minority group in any sample made up of a protected and a nonprotected group . . . might be attributable to normal fluctuations of chance rather than to discriminatory” effect. EEOC v. Am. Nat’l Bank, 652 F.2d
8 During the fairness hearing, at least one objector expressed the belief that they were excluded from consideration for a police officer or cadet position simply because they identified themselves as African American on the challenged exams or in some part of the BCPD hiring process. The United States has made no allegation that the County excluded African Americans from consideration on such an explicit basis. Rather, the claim is that fewer African Americans received a passing score on the facially neutral challenged exams and that the exams were not shown to be related to the police officer or cadet position.
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1176, 1191 (4th Cir. 1981). “The difference between actual (‘observed’) numbers of the protected group in such a sample and the number that would be ‘expected’ in a perfectly proportional process of selection from the appropriate pool can then be expressed in numbers of standard deviations.” Id. The greater the standard deviation gleaned from this analysis, the smaller the probability that the disparity is a result of chance. Id. The Court of Appeals for the Fourth Circuit has recognized that the probability that a disparity is due to chance is just five percent at two standard deviations; accordingly, analyses that show a standard deviation in the range of two or three may be sufficient to establish a prima facie case of disparate impact. Id. at 1192–93. Here, the United States’ standard deviation analysis showed that the disparity equates to over seven units of standard deviation for each exam, meaning that it is highly unlikely that the disparities in the pass rates for the exams are due to chance. The United States’ evidence thus supports a prima facie case of disparate impact if this case were to proceed to trial.
Once the prima facie case is established, to defend its exams the County would be required to prove, by the use of a professionally acceptable methodology, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975), that its use of the challenged exams was “job related” for the entry level police officer and cadet positions “and consistent with business necessity,” 42 U.S.C. § 2000e-2(k)(1)(A)(i). For the purposes of the Agreement, the County has stipulated that the challenged exams were not properly validated by an acceptable methodology and were not job related and consistent with business necessity for the positions in question. Therefore, it appears that were this case to proceed to trial the County would be unlikely to rebut the United States’ prima facie case of disparate impact, and the United States would be likely to succeed on the merits.
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b. Adequacy of Relief The court also must consider whether the amount and form of relief contemplated by the Agreement is adequate. See North Carolina, 180 F.3d at 581. It is clear that the agreed upon injunctive and individual relief, including priority hiring, back pay, and retroactive seniority, outlined above, comports with the purposes of Title VII in that it is intended to cure the discriminatory effect of the challenged exams and prevent future discrimination in the County’s hiring for entry-level police officer and cadet positions. In a pattern and practice case, a finding of a violation alone merits an award of injunctive relief. Int’l Broth. of Teamsters v. United States, 431 U.S. 324, 361 (1977). Furthermore, one of the “central purposes of Title VII is ‘to make persons whole for injuries on account of unlawful employment discrimination.’” Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976) (quoting Albemarle, 422 U.S. at 418). Injured parties are to be placed, “as near as may be, in the situation [they] would have occupied if the wrong had not been committed.” Albemarle, 422 U.S. at 418–19. In pattern and practice cases that identify an unlawful hiring practice, “three basic components” of “make whole” relief are “a job offer, backpay, and retroactive seniority.” See Wrenn v. Dep’t of Veterans Affs., 918 F.2d 1073, 1076 (2d Cir. 1990) (citing Franks, 424 U.S. at 781; Albemarle, 422 U.S. at 421). The limited number of objections that were received do not persuade the court that the relief is inadequate or otherwise inappropriate under Title VII. Notice of the Agreement was sent to over 1600 potential claimants, to additional interested persons, including each police officer and cadet currently employed with the County and unions authorized to represent police officers and cadets in the BCPD, and to the public at large. (ECF 42-3, Agreement § IV.D.). Considering the large number of persons so apprised of the settlement, opposition to the Agreement is minimal. The parties received 216 objections to the Agreement, the majority of which did not provide a
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substantive basis for objecting to the relief discussed herein.9 Those objections that can properly
be considered substantive fall into five categories, which the court will address in turn.
First, three objections claimed that all applicants to the positions in question, not just
African Americans, should receive relief. (See, e.g., ECF 42-4 at 76). The court will overrule these
objections. The claims in this lawsuit address only the disparate impact of the County’s use of the
challenged exams and found a disparate impact only on African American applicants. There is no
claim that the challenged practices had an unlawful disparate impact on any other protected class;
thus, it would not be appropriate to award relief to persons who are not alleged to have been harmed
by the County’s conduct.
Second, twenty-six objectors claimed that the challenged exams were not discriminatory
because the challenged exams were not intentionally biased and tested all applicants on the same
material. The objections of Objector Numbers 1 and 15510 are representative of this category of
objections. These objectors maintained that a test could not be discriminatory if all applicants were
given the same exam and that the exams were job-related because they tested such skills as
9 Of the 216 objections, fifty-one objections were duplicates of previously submitted objections (see ECF 42-17); seventy-four objections were blank or provided insufficient information as to the nature of the objection (see ECF 42-18); forty-seven objections were attempts to apply for relief or informing the United States that the objector failed one of the challenged exams or was otherwise disqualified from BCPD hiring or subjected to discrimination by the County (see ECF 42-20); and three objections supported or were neutral as to the Agreement (see ECF 42-19). 10 Pursuant to the Agreement, the parties agreed that they will keep confidential the names and personally identifiable information of any individual who seeks or receives relief under the Agreement. (ECF 42-3, Agreement § VIII.E ¶ 116). Because it appeared that some individual objectors may be eligible to apply for relief, the parties assigned all objectors a number for the purposes of the fairness hearing in order to maintain the anonymity of individuals who may later seek relief under the Agreement. Regardless whether an individual objector intended to seek relief under the Agreement, the court permitted all objectors to remain anonymous during the fairness hearing and will refer to objectors by number in this Memorandum.
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observation, reading, writing, spelling, grammar, and vocabulary. (ECF 42-4 at 4; ECF 42-5 at 234).11
The court will overrule these objections. The United States’ claim does not require it to show that the County intentionally discriminated against African American applicants for the entry level police officer and cadet positions. An employment practice, including a written exam, that applies the same criteria to all employees or applicants may nonetheless operate to exclude a protected class on a disparate basis. See Griggs, 401 U.S. at 431. When a practice does so, and it is not job-related and consistent with business necessity, it creates an arbitrary and discriminatory barrier based on protected class status and violates Title VII. See Ricci v. DeStefano, 557 U.S. 557, 577–78 (2009) (citing Griggs, 401 U.S. at 431, 432). The court acknowledges the objectors’ anecdotal observations that the challenged exams test skills they believe to be of value to police officers and cadets in the BCPD. But “nonempirical or anecdotal” assertions that an exam relates to the job in question are insufficient to justify a disparate impact. See 28 C.F.R. § 50.14. And for the purposes of the Agreement, the County has stipulated to the contrary—African American candidates were disproportionately screened out of the hiring process through the use of the challenged exams, which were not shown to be properly validated as job related or consistent with business necessity. (ECF 42-3, Agreement § I.B. ¶¶ i–xi).
Third, five objections claimed that the priority hiring relief will result in the hiring of unqualified officers and cadets, and is therefore a public safety risk. (See, e.g., ECF 42-4 at 105;
11 Objector 155 further suggested that the disparity is a result of fewer African Americans taking the challenged exams. (ECF 42-5 at 234). The record contains no information on the raw number of individuals who took the challenged exams; further, it is not the case that a small sample size invariably will produce a disparity in pass rates for one group compared with another. Here, the United States has shown that the difference in pass rates between African American and white applicants is statistically significant and not due to chance.
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ECF 42-5 at 649, 734). The court will overrule these objections. The Agreement does not require the BCPD to hire any applicant who is not qualified for a police officer or cadet position. Priority hire applicants will be subject to the same selection process as all other BCPD applicants, including the new selection device. Hiring relief in this case will operate to eliminate the effects of discrimination on the BCPD’s workforce. To deny such relief would “frustrate [Title VII’s] central statutory purposes of eradicating discrimination . . . and making persons whole for injuries suffered through past discrimination.” Albemarle, 422 U.S. at 421.
Fourth, twelve objections claimed that giving retroactive seniority to priority hires is unfair for a number of reasons, including that it will affect the seniority rights of incumbent officers, result in the promotion of unqualified officers, or it has not been fairly earned. (See, e.g., ECF 424 at 64; ECF 42-5 at 599). These objections will be overruled. The priority hires the County has agreed to make are victims of the County’s alleged discriminatory use of the challenged exams and accordingly are presumptively entitled to retroactive seniority. Franks, 424 U.S. at 765–66; see also Prudencio v. Runyon, 3 F. Supp. 2d 703, 705 (W.D. Va. 1998). Such relief is essential to make whole relief because it grants to the priority hires the seniority they would have earned had the challenged exams not screened them out of the hiring process. Franks, 424 U.S. at 767. Without such an award, an individual who applies for and obtains a priority hire position pursuant to the Agreement “will perpetually remain subordinate to persons who, but for the illegal discrimination, would have been in respect to entitlement to these benefits [their] inferiors.” Id. at 768. This relief is not to be “denied on the abstract basis of adverse impact upon interests of other employees.” Id. at 779 n.41. And at any rate the relief provided in the Agreement has been tailored such that incumbent employees will be minimally affected. The retroactive benefits are to be provided only to up to twenty priority hires, a small fraction of the BCPD’s overall force, and the benefits do not
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extend to many of the seniority rights which are “competitive.” For instance, retroactive seniority will not be granted for the purposes of scheduling leave or vacation time. (ECF 42-3, Agreement § VII.D. ¶ 110). To the extent some objectors fear that retroactive benefits will result in the promotion of unqualified officers or result in workplace tensions, such objections are unfounded. Priority hires cannot use any retroactive seniority to fulfill any eligibility requirements for a promotion. (ECF 42-3, Agreement § VII.D. ¶ 110). And the potential that incumbent officers will be unhappy about the retroactive seniority awarded is not a basis for denying relief. See Franks, 424 U.S. at 775 (citing United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (2d Cir. 1971)). Moreover, because the Agreement provides for the continued anonymity of the claimants who are awarded relief, there is no basis on which an incumbent officer would know that a new colleague received retroactive seniority.
Fifth, eleven objections made claims about the fairness of back pay. These objections included claims that back pay was not fairly earned (see, e.g., ECF 42-4 at 187) and that the money could be better used for other purposes (see, e.g., ECF 42-5 at 23). Like retroactive seniority, back pay is a core component of make whole relief, and is presumptively available to those injured by an unlawful employment practice. See Wrenn, 918 F.2d at 1076. Denial of back pay relief is only appropriate where relief would frustrate, rather than further the objectives of Title VII. Albemarle, 422 U.S. at 421; see also Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 651 (4th Cir. 2002). Concerns that benefits were unearned or could be better spent on matters unrelated to remedying the alleged unlawful employment practice at issue here do not demonstrate that the back-pay award would be inconsistent with Title VII—thus, these objections will be overruled.
Other objections to the back-pay relief focused on the amount awarded, with some claiming the settlement fund is excessive and creates a windfall for claimants and others claiming that the
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$2,000,000 is inadequate to fully compensate the claimants. (See, e.g., ECF 42-4 at 32; ECF 42-5 at 245). The court agrees with the parties that the amount of the settlement is appropriately tailored to redress the injury at issue. Starting from the United States’ estimate that the County would have hired an additional twenty-three African American police officers and cadets absent the County’s use of the challenged exams, the parties estimated the total salary that would have been paid to those officers had they been appropriately hired, using estimated hire dates for the positions that corresponded to the dates on which the County actually hired applicants from each of the exams. Where, as here, it is not possible years after the County’s use of the challenged exams to determine which claimants would have received one of the twenty-three positions, courts have recognized that it is appropriate to calculate a gross award for all class members and divide the award among them on a pro rata basis.12 See, e.g., United States v. City of Miami, 195 F.3d 1292, 1300 (11th Cir. 1999); United States v. U.S. Steel Corp., 520 F.2d 1043, 1055–56 (5th Cir. 1975); White v. Carolina Paperboard Corp., 564 F.2d 1073, 1087 (4th Cir. 1977).
In sum, the court is satisfied that the Agreement provides adequate relief in the form of a detailed process that will replace the challenged exams, comply with Title VII without compromising public safety, and provide appropriate make-whole relief to individuals adversely affected by the use of the challenged exams.
12 As at least one objector noted at the hearing, awarding back pay relief on a pro rata basis means that until the number of claimants is ascertained, potential claimants do not know the amount they may receive under the Agreement. The court acknowledges the difficulty of this uncertainty for potential claimants, but notes that the Agreement ensures that once the number of eligible claimants has been identified, those individuals will promptly be notified of the amount of their award and they will have an opportunity to object to such calculation. Cf. Hairston v. McLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975) (“exactitude is not required” in making back pay determinations).
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c. Extent of Completed Discovery, Stage of Proceedings, Absence of Collusion, and Experience of Counsel
Finally, the extent of completed discovery, the stage of proceedings, absence of collusion, and experience of counsel all weigh in favor of a finding that the Agreement is fair, adequate and reasonable. See North Carolina, 180 F.3d at 581. First, though no formal discovery occurred in this litigation, the parties reached the Agreement after a multi-year investigation by the United States and over a year of settlement negotiations, which included the exchange of sufficient information to evaluate the strength of the United States’ claims and the appropriate relief. Second, counsel for the United States are highly experienced in Title VII enforcement cases. “[I]n a complex case settled by consent decree, ‘where a government agency charged with protecting the public interest has pulled the laboring oar in constructing the proposed settlement,’” the court “accord[s] substantial weight to the agency’s expertise and public interest responsibility.” Am. Canoe Ass’n, Inc. v. EPA, 54 F. Supp. 2d 621, 625 (E.D. Va. 1999) (quoting Bragg v. Robertson, 54 F. Supp. 2d 653, 660 (S.D.W.Va.1999)). Third, the parties reached the Agreement after lengthy settlement negotiations, including several mediation sessions with Magistrate Judge Gauvey; it cannot be said that the Agreement is a product of collusion. See United States v. Westvaco Corp., No. CV MJG-00-2602, 2016 WL 4492704, at *5 (D. Md. Aug. 26, 2016).13
CONCLUSION For the foregoing reasons, the court will conclude that that terms of the Agreement are fair, adequate, reasonable, lawful and not a product of collusion or against the public interest; will
13 Unpublished opinions are cited for the soundness of their reasoning and not for any precedential value.
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overrule all objections to the Agreement; and will grant the parties’ joint motion to enter the Agreement as final. A separate Order follows.

5/19/2021 Date

/S/ Catherine C. Blake U.S. District Court Judge

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