Case 1:14-cv-00078-S-LDA Document 1 Filed 02/10/14 Page 1 of 11 PageID #: 1

uNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

. UNITEp STATE~ O¥ Al\ffiR:J:CA,

Plaintiff,

v.
STATE OF RHODE ISLAND, RH()DE ISLAND DEPAllTMENT OF CORRECTIONS,

Civil Action No.:
CA14'"

Defelldants.

COMPLAINT 1. This action is brought on behalf of the United States to enforce the provisions of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-6 ("Title VII"). As is set forth more fully below, the United States alleges that, since 2000, Defendants, the State of Rhode Island ("Rhode Island") and the Rhode Island Depattment of Corrections ("RIDOC"), have used and continue to use awritteil exatllination and a video exatllination to screen and select applicants for ently-Ievelcorrection officer ("CO") positions at RIDOC. Through use of these employment examinations, Defendants have engaged in a pattern or practice ofemployment discrimination against African Americans and Hispanics in its selectionproceclure for entry-level CO positions in violation of Title VII.
JURISDICTION AND VENUE 2. This court has jurisdiction of this action under 42 U.S.C. § 2000e-6(b), 28 U.S.C. §§ 1331, 1343(a)(3), and 1345.

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3. Venue is proper in the United States District Court for the District of RllOde Island because a substantial part ofthe acts and omissions giving rise to this action occurred in RlIode
Ishmd.28U.S.C. S139i(b).
4. Defendant RlIode Islalid is agovenullentalentityalIda person withhithe meaning of 42 U.S.C. § 2000e(a) alId an employer within the meaning of 42 U.S.C. § 2000e(b).
5. DefendalIt RIDOC is a governmental agency and a persoil within the meaning of 42 U.S.C. § 2000e(a) createdpursuant to the laws of RlIode IslalId, R.I. Gen. Laws § 42-56-2, and an employer within the meaning of 42 U.S.C. § 2000e(b). 6. The Director ofRIDOC has the authodty to hire all RIDOC employees, aiId has broad authority regarding terms alId conditions of employment for allRIDOC employees. R.I. Gen. Laws §§ 42-56-5, 42-56-10(7) & (14). 7. Defendants are responsible for establishing the terms, conditions,and other practices which bear upon the selection and employment of COs at RIDOC. 8. Defendallts employ COs who are responsible for, alll011g other thiilgS, maintaining custodial care and control of ilUllates housed in cori'ectional facilities in the State.
FACTS
A. Challenged Employmeni Practices 9. Since 2000, Defendants have used, and continue to use, a written examination in the screel1ing and selection of applicants for appointment to entry-level CO positions at RIDOC. A written examination developed by JealUleret & Associates was administered from January 2000 tluough June 2004 to applicants for etitry-Ievel CO positions. A modified version of the written eXalllination, as revised by the Rhode Island Office of PersolUlel Administrati~n, has been administered since June 2006.
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10. Since 2000, Defendants have used, and continue to use, a video examination in the screening and selection of applicants f()r appointment for entry-level CO positions at RIDOe. A video exiulli11ation dtwe10ped by Ei'gometrics and Applied Persoi1l1e1 Research Inc. lias been administered to applicants since 2000 for entry-level eo positions with RIDDe. 11. Since 2000, Defendants have used the written examination and video examiIiation separately on a "pass/fail" basis. As such, Defendants have required applicants for entry-level co positions at RIDOe to meet the minimum passing standard for each examination in order to remain eligible for hiring consideration. 12. Since 2000, Defendants have used a 70% correct passing standard for the written examination and a 79.5% passing standard for the video examination. 13. Since 2000, Defendants have required, and continue to require, applicants for entry-level eOposiiionsat RIDOe to take both the written examination and video examination on the same day as part of the "examination phase" of the selection procedure. Defendants place only those applicants who pass both the written and video examinations on an eligibility list for futther consideration in the hiring process ("combined use" of the written and video examiImtions). 14. Defendants place applicants for entry-level CO positions at RIDOe on an eligibility list in descending rank order based solely on their video examination score and ptocess applicants on the eligibility list for further hiring consideration based on this rank. 15. Defendants' pass/fail use, since 2000, of the written and video examinations separately, and the combined use of both examinations, has disproportionately eliminated both AfricanAiilerican and Hispanic applicants for entry-level eo positions at RIDOe from further consideration in the CO hiring process.
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B. Pass/Fail Use ofthe Written Examination 16. For the period between 2000 and 2011, approximately 94% ofwhite applicants who took .the wdtten examination f()r the entry.,levei CO position at RIDOC passed the exaniiriation, while only approximately 74% of African~Americanapplicants passed the examination. The difference between the pass rate of African.,American applicants and that of white applicants is statistically significant. 17. For the period between 2000 and 2011, approximately 94% of white applicants who took
the written examinationfor the entry.,level eo position at RIDOe passed the examination, while
only approximately 74% of Hispanic applicants passed theexalhiilation. The difference between the pass rate of Hispanic applicants and that ofwhite applicants is statistically significant. 18. For the period between 2000 and 2005, approximately 88% of white applicants who took
the wI'itten eX;;Il11ination fol' the entry':level eo position at RIDoe passed the examination, while
only approximately 54% of African.,American applicants passed the examination. The difference between the pass rate of African.,AIllerican applicants and that of white appliCaIits is statistically significant. 19. For the period between 2000 and 2005, approximately 88% of white applicants who took
the written examination for the entry-level eo position at RIDoe passed the examination, while
only approximately 48% of Hispanic applicants passed the examination. The difference between the pass rate of Hispanic applicants and that of white appliCaIlts is statistically significant. 20. For the period between 2006 and 2011, approximately 97% of white applicants who took
the written examination for the entry-level eo position at RIDOe passed the examination, while
only approximately 81 % of AfricaII-American appliCaIlts passed the examination. The
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difference between the pass rate of African-American applicants and that ofwhite applicants is statistically significant.
2i, For the pedod between :W06 and 201i, approximate1y91% ofwhite appliciu1.ts who took
the written examination for the entry.,.level CO position at RIDOC.passedtheexaminatioll, while. only approximately 80% ofHispanic applicants passed the examination. The difference between the pass tate of Hispal1ic applicalits and that of white applicants is statistically significant.
C. Pass/Fail Use ofthe Video Examination 22. For the period between 2000 alld 2011, approximately 66% of'Yhite applicants who took the video examination for the entry-level CO position at RIDOe passed the examination, while only approximately 47% of Africall-American appliCallts passed the examination. The difference behveen the pass rate ofA:fHcan-American applicants and that of white applicants is statistically significant. 23. For the period between 2000 and 2011, approximately 66% of white applicants who took the video exaniination for the entry-level CO position at RIDOe passed the examination, while only approximately 37% ofHispanic applicants passed the examination. The difference between the pass rate of Hispanic applicants alld that of white applicants is statistically significallt.
D. Pass/Fail Combined Use ofthe Written and Video Examinations 24. For the period between 2000 and 2011, approximately 63% of white appliCallts who took both the written and video examinations for the entry-level CO position at RIDOe passed the examinations, while Oilly approximately 41 % of African-American applicants passed both exam.inations. The differel1ce between the pass rate of African-American applicants and that of white applicants on the combined use of the two examinations is statistically significant.
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25. For the period between 2000 and 2011, approximately 63% of white applicants who took
both the written and video examinations for the entry-level eo position at RIDOe passed the
exanl11lations, while only approxiinately33% of Rispailic applicants passed both examinations. The difference .between the pass rate of Hispaliic applicants .and that ofwhite applicants on the combined use of the two examinations is statistically significant. 26. For the period between 2000 and 2005, approximately 56% of white applicants who took
both the written and video examinations for the entry-level eo position at RlDOe passed the
examinations, while only approximately 25% of African-American applicants passed both examiilations. The difference between the pass rate of African-American applicants and that of white applicants on the combined use of the two examinations is statistically significant. 27. For the period between 2000 and 2005, approximately 56% ofwhite applicants who took
both thy writtel'l and video eXaIilinations for the entry-level eo position at RIDOe passed the
examinations, while only approximately 25% of Hispanic applicants passed both examinations. The differel~ce between the pass rate ofHispanic applicants and that of white applicants on the combined USe of the two. examinations is statistically significant. 28. For the period between 2006 and 2011, approximately 65% of white applicants who took
both the written and video examinations for the ently-Ievel eo position at RIDOe passed the
examinations, while only approximately 45% of African-American applicants passed both examinations. The difference between the pass rate of African-American applicants and that of white applicants on the combined use of the two examinations is statistically significant. 29. For the period between 2006 and 2011, approximately 65% of white applicants who took
both the written and video examinations for the entry-level eo position at RlDoe passed the
examinations, while only approximately 34% of Hispanic applicants passed both examinations.
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The difference between the pass rate of Hispanic applicants and that of white applicants on the combined use of the two examinations is statistically significant.
UNITED81'ATE8PATTERNORPRACTICECtAIMS
PURSUANT TO SEC-fION 707 OF TITLE VII 30. Plaintiff United States realleges and incorporates herein by reference paragraphs 1-29. 31. Defendants' use of the written examination as a pass/fail screening device with a cutoff score of70% results in a disparate impact upon African-American and Hispanic applicants for entry-level CO positions at RIDOC, is not job related for the CO position and not consistent with business necessity, and otherwise does not meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k). 32. Defendants' use of the video examination as a pass/fail screening device with a cutoff score of79.5% results in a disparate impact upon African-American and Hispanic applicants for entry.:level CO positions at RIDOC, is not job related for the CO position and not consistent with business necessity, and otherwise does not rileet the requ:irements of Section 703(k) of Title VII, 42 U.S.C.§ 2000e-2(k). 33. Defendants' combined use of the written examination and video examination as a pass/fail scteening device to place applicants on an eligibility list to continue in the entry-level CO selection procedure at RIDOC results in a disparate impact upon African-American and Hispanic applicants, is not job related for the CO position and not consistent with business necessity, and otherwise does not meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k). 34. Defendants have pursued and continue to pursue policies and practices that discriminate against African Americans and Hispanics and that deprive or tend to deprive African Aniericans of employment oppOltunities because of their race and Hispanics of employment opportunities
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because of their national origin, in violation of Section 707 of Title VII, 28 U.S,C. § 2000e-6. Defendants have implemented these policies and practices, among other ways, by:
a. failing or refusing to appoint African-American and Hispanic applicants to the entry-level CO .position at RIDOConthe same basis as white applicants;
b. using, in the screening and selection of applicants for the entry-level CO position at RIDDC, written and video examinations as pass/fail screening devices, where use of these examinations results in a disparate impact upon African-American and Hispanic applicants, is not job related for the position in question and consistent with business necessity, and does not othelwise meet the requirements of Section 703(lc) of Title VII, 42 U.S.C. § 2000e-2(lc);
c. failing or refusing to take appropriate action to correct the present effects of its discriminatory policies and ptactices; and
d. failing or refusing to "make whole" those African-American and Hispanic applicants for appointment to the entry-levelCO position at RIDOC who have been harmed by Defendants' unlawful use of the written and video examinations.
35. In acc()rdance with Section 707 of Title VII, 42 U.S.C. § 2000e..6; the United States, through the Department of Justice, has conducted an investigation of the policies and practices of Defendants with respect to its screening and selection of applicants for the entry-level CO position at RIDDC.and the effect of such policies and practices on African-American and Hispanic applicants, has notified Defendants oftllat investigation and of the United States' determination that the policies and practices described in paragraphs 9-33 are unlawful. 36. The policies and practices of Defendants described in paragraphs 9-33 constitute a pattern or practice ofresistance to the full enjoyment by African Americans and Hispanics of their right
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to equal employment opportunities without discrimination based upon race and/or national origin, in violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6. This pattern or practice is of s1.tch ailahli;e as t6dellythenlllexel;Cise 6fthe rights seemed-by Title VII. Unless restt;a:ined _by order of this Co:urt, D~fendal,1ts wilLGOlltiIllJe to P~lJ's1..wpoliGiesalld practices tbatare thesame as or similar to those alleged in this Complaint.
PRAYERFOR RELIEF WHEREFORE, the United States prays for an order enjoining Defendmits, mId their officers, agents, employees, successors, and all persons in active conceli or participation with them from engaging in employinelit policies and practices which discriminate against AfricmI Americans on the basis ofrace and'HispmIics on the basis of national origin in violation of Title VII, and specifically from: a. failhig or refusing to appoint Afi:icmI·Amel'icmI and Hispanic applicants to entry-
level CO positions at RIDOC on the same ba.sis as white applicants; b. using a written exmnination and video examination; sepm'ately or in combination,
as tools in the screeiIihg arid selectiOli of applicants for entry-level CO positions at RIDOC in a manner that results in a disparate impact upon African-American and Hispanic applicants, that is not job-related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(lc) of Title VII, 42 U.S.C. § 2000e-2(lc); c. failing or refusing to take appropriate action to correct the present effects of the Defendants' discriminatory policies and practices, including but not limited to the following:
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(i) adopting entry-level CO selection procedures that comply with Title VII; and
are (Hjtaldng such other reasona.ble actions that necessary to correct the
present effects ofpast discrimination; d. failing or refusing to provide "make whole" relief to African-American and
Hispanic applicants for the entry-level CO position at RIDOC who have been harmed or will be harmed as a result of the discriminatory policies and practices alleged ill tlus Complaint. PlaintiffUnited States prays for such additional relief as justice may require, together with its costs and disbursements in this action.

Dates: February~, 2014
Respectfully submitted,
PETER F. NERONHA United States Attorney District of Rhode Island

JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division
B~ y: tl~
DELORAL.KENNEB W (GA Bar No. 414320) Chief LOUIS LOPEZ (DC Bar No. 461662) Deputy Chief CLARE GELLER (NY Reg. No. 4087037) ELIZABETH B. BANASZAK (IL Bar No. 6299035) Trial Attorneys Employment Litigation Section Civil Rights Division
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United State~ Department of Justice

950 Pennsylvania Avenue, NW, PHB

Washington, DC 20530

Telephone: (202) 353-1817

Fax:(202)5T4~nb5

.

clare.geller@usdoj.gov

Counsel/or Plaintif[United States ofAmerica

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 Case 1:14-cv-00078-S-LDA Document 9 Filed 04/25/14 Page 1 of 2 PageID #: 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA

:

Plaintiff,

:

:

v.

:

:

STATE OF RHODE ISLAND,

:

RHODE ISLAND DEPARTMENT OF :

CORRECTIONS,

:

Defendants.

:

C.A. 14-78S

MOTION TO DISMISS

Now comes the State of Rhode Island and the Rhode Island Department of Corrections

and hereby moves to dismiss the Complaint in the above entitled matter pursuant to Fed.R.Civ.P.

12(b)(6). A Memorandum of Law and Exhibits in Support accompany this Motion.

Respectfully submitted:

STATE OF RHODE ISLAND, and RHODE ISLAND DEPARTMENT OF CORRECTIONS

By Its Attorney,

PETER F. KILMARTIN ATTORNEY GENERAL

/s/ Neil F.X. Kelly ________________________________ Neil F.X. Kelly (Bar No. 4515) Rebecca Tedford Partington (Bar No. 3890) Assistant Attorneys General Ariele Yaffee (Bar No. 8646) Edward G. Mullaney (Bar No. 8843) Special Assistant Attorneys General 150 South Main Street Providence, Rhode Island, 02903 Tel: (401) 274-4400 ext. 2284, 2303 Fax: (401) 222-3016 nkelly@riag.ri.gov rpartington@riag.ri.gov

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CERTIFICATION
I, the undersigned, hereby certify that I filed the within Memorandum via the ECF filing system and that a copy is available for viewing and downloading. I have also caused a copy to be sent via the ECF system to the following attorneys of record on this 25th day of April 2014.

Delora L. Kennebrew, Chief Louis Lopez, Deputy Chief Clare Geller Elizabeth B. Banaszak United States Department of Justice Employment Litigation Civil Rights Division 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530
Peter F. Neronha, U.S. Attorney United States Department of Justice District of Rhode Island 50 Kennedy Plaza, 8th Floor Providence, Rhode Island, 02903

Kathleen M. Kelly Chief Legal Counsel RI Department of Corrections 40 Howard Avenue Cranston, Rhode Island, 02920

/s/ Neil F.X. Kelly ________________________________

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA

:

Plaintiff,

:

:

v.

:

:

STATE OF RHODE ISLAND,

:

RHODE ISLAND DEPARTMENT OF :

CORRECTIONS,

:

Defendants.

:

C.A. 14-78S

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

I. INTRODUCTION

The United States Department of Justice (“DOJ”) brings this lawsuit against the State of

Rhode Island Department of Corrections (the “State” or “DOC”) alleging violations of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6, for the time period of 2000 to 2011.

(Complaint, Doc. 1, Feb. 10, 2014). The DOJ filed this action as a “pattern or practice” suit

under 42 U.S.C. § 2000e-6, alleging unintentional disparate impact in the DOC’s selection

process for the correctional officer training academy. The Complaint followed the results of a

DOJ investigation, which began in September of 2009 and culminated in a DOJ letter dated

November 26, 2013 alleging unlawful employment practices. Through this action, the DOJ seeks

prospective injunctive and retrospective individual relief reaching back 14 years to “‘make

whole’ those African-American and Hispanic applicants…who have been harmed or will be

harmed” because of the use of “written and video examinations” during the multistep selection

process for the DOC’s correctional officer training academy. (Complaint, Doc. 1, ¶¶ 9-33 and

Prayer for Relief ¶¶ a – d).

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A timely filing of a charge or notice of alleged discrimination is a prerequisite for any actions under Title VII. The DOJ’s claims seeking “make whole” relief, which could include preferential hiring and monetary damages for individuals reaching back 14 years, must be dismissed. There is no discernible accrual date for the relief sought because the DOJ failed to follow the Title VII prerequisites. Title VII was designed to address allegations of discrimination through timely notice of a charge that states the time, place, and circumstances of the unlawful conduct with the Equal Employment Opportunity Commission (“EEOC”) and conciliation efforts. Congress has provided no exemption for the DOJ when pursuing an action under Title VII. The DOJ must act in accordance with these procedures in a pattern or practice case under Section 707 of Title VII (42 U.S.C. § 2000e-6), as reinforced by the Reorganization Plan No. 1 of 1978 and an Executive Order. The DOJ has failed to comply with Title VII’s temporal strictures to obtain such individual relief. There has been no charge filed and no timely notice to the DOC as required by Title VII to obtain the individual relief. See 42 U.S.C. § 2000e5(g)(1). After more than four years of investigation, in a November 25, 2013 telephone conference and a letter dated November 26, 2013, the DOJ—for the first time—notified the DOC of alleged violations of Title VII. By circumventing the Title VII procedural requirements for obtaining individual relief, the DOJ has failed to provide the DOC the same due process protections afforded to any private employer or Federal Government defendant in an unintentional pattern or practice case. The DOJ’s claims for such relief should be dismissed.
Although the DOJ may vindicate sovereign rights, when pursuing rights for individuals the DOJ steps outside of its sovereign capacity and must comply with the timeframes established by Title VII. The Supreme Court has recognized the importance of expeditious resolution accomplished through adherence to the specified timeframes of Title VII regarding prompt
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notice of a charge and conciliation prior to litigation. Should these Title VII timeframes and procedures not apply in an action brought by the DOJ, an analogous state statute of limitations must apply.
The DOJ’s Complaint also seeks to enjoin the DOC from using a written cognitive examination and a video examination in the selection of applicants for its training academy. (Complaint, Doc. 1, Prayer for Relief ¶¶ b-c). The Complaint brings untimely allegations related to multiple and distinct selection processes from 2000 through 2011. (Complaint, Doc. 1, ¶¶ 933). The DOC administered the written cognitive examination and video examination in October and November 2013, but after receiving DOJ’s November 26, 2013 letter, the DOC immediately suspended its selection process.1 The DOC notified the applicants that the process was on hold until further notice and no action has been taken with regard to the examinations or the results.2 For these reasons, the Complaint must be dismissed.
II. STANDARD Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of actions which fail to state a claim upon which relief can be granted. In considering a motion to dismiss, this Honorable Court “must take the allegations in the complaint as true and must make all reasonable inferences in favor of the [P]laintiff[].” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (citing Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 988 (1st Cir. 1992)); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009)(noting that the court must accept plaintiff’s allegations as true and construe them in the light most favorable to plaintiff). While the District
1 The Complaint contains no factual allegations pertaining to the 2013 administration of the written cognitive and video examination. 2 The need to seat a training academy class grows more acute daily for the DOC because of fiscal and other concerns, not to mention the impact such a delay has upon the prospective correctional officer candidates.
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Court must accept as true all of the allegations in the complaint; the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Rule 8 of the Federal Rules of Civil Procedure requires that a pleading shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A claim fails to state a claim for which relief may be granted if the factual allegations fail to “raise [plaintiff’s] right to relief above the speculative level.” Twombly, 550 U.S. at 555; see Fed.R.Civ.P. 8(a)(2). A complaint must contain sufficient facts to nudge a case “across the line from conceivable to plausible.” Id. at 570; see also Iqbal, 556 U.S. at 680.
Under First Circuit precedent, generally “consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden, unless the proceeding is properly converted into one for summary judgment under Rule 56.” Watterson, 987 F.2d at 3 (citing Fed.R.Civ.P. 12(b)(6)). In the instant matter, the DOJ’s complaint is entirely reliant and founded upon the documents and information provided by the DOC during the DOJ’s more than four year investigation, which began in 2009. (See Complaint, Doc. 1, ¶ 35). This Court may therefore consider “documents the authenticity of which are not disputed by the parties;…official public records;…documents central to plaintiffs’ claim; or…documents sufficiently referred to in the complaint.” Watterson, 987 F.2d at 3 (citations omitted). Courts generally do not consider extraneous documents in a motion to dismiss due to the lack of notice to the plaintiff. Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991). But where the “plaintiff has actual notice of all the information in the movant’s papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.” Id. For these reasons, the factual background supporting this Motion to
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Dismiss makes reference to documents produced to and relied upon by the DOJ in its Complaint, and this Honorable Court may properly consider such documents as part of the pleadings without converting the instant Motion to one for Summary Judgment. See Watterson, 987 F.2d at 4.
Though the Court may consider these documents, the Complaint, on its face, seeks to recover for alleged wrongs outside of any applicable limitations period.
III. STATEMENT OF FACTS The DOJ began an investigation into the DOC’s hiring and employment operations on September 1, 2009, lacking any complaint or charge of discrimination related to the entry-level selection process for correctional officer (“CO”) candidates. (See Sept. 1, 2009 Letter (Exhibit A)). From 2000 to present, no one has ever filed any complaint or charge with the EEOC, the Rhode Island Human Rights Commission (“HRC”), or with the DOC. (See Feb. 25, 2010, Response to Question 18 (Exhibit B)). In a September 2009 letter, the DOJ asserted that it possessed information that indicated “that the percentages of black, Hispanic and female correctional officers at the Rhode Island Department of Corrections are significantly lower than would be expected for an agency of this type” and that the DOJ would conduct a “full investigation of the State of Rhode Island’s employment practices at its Department of Corrections to determine whether it is engaged in a pattern or practice of discrimination against blacks, Hispanics and/or females with respect to employment opportunities… .” (Exhibit A). This letter did not contain specific facts of any allegations of unlawful employment practices under Title VII.3 The first allegation of any type related to the issues in the instant Complaint came on November 25 and 26, 2013—over four years later.
3 The subject line of the letter read “Investigation of the Employment Practices of the State of Rhode Island Regarding Employment Opportunities at the Rhode Island Department of
5

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During the intervening four years, the DOC maintained open communication with the DOJ and responded to every request from the DOJ by scheduling meetings, exchanging emails, conducting conference calls, and providing extensive responses to detailed document requests into DOC operations.
On October 2, 2009, the DOJ sent a letter to the DOC, indicating that DOJ would be gathering information on “general topics” related to “the hiring practices for corrections officers.” (Oct. 2, 2009 Email and Letter (Exhibit C)). These “general topics” included the organization and structure of the DOC, the entry-level hiring processes utilized, and hiring data for each selection process administered since 2000, and any equal employment or affirmative action plans/policies implemented by DOC. Id. No allegations against the DOC were made. See id. In advance of an October 23, 2009 meeting, the DOC produced a significant number of documents to the DOJ in a good faith effort to collaborate and cooperate with the DOJ’s general inquiry into the DOC’s employment practices and opportunities. (See Oct. 26, 2009 Letter (Exhibit D)).
By January 14, 2010, the DOJ had “reviewed the information provided to [it] and [wrote] to request additional information” regarding the DOC’s operations and hiring processes. (Jan. 14, 2010 Letter (Exhibit E)). This letter, just as the previous two letters, did not identify any discriminatory practices; it simply contained the generalized language that the investigation was “pursuant to Section 707 of Title VII.”4 The DOC worked diligently to produce the requested information that it had within its possession, sought to obtain information as needed from third Corrections Pursuant to Section 707 of Title VII of the Civil Rights Act of 1964, as Amended.” (Exhibit A). 4 The January 14, 2010 letter’s subject line read the same as that in the September 1 and October 2, 2009 letters: “Investigation of the Employment Practices of the State of Rhode Island Regarding Employment Opportunities at the Rhode Island Department of Corrections Pursuant to Section 707 of Title VII of the Civil Rights Act of 1964, as Amended.” (Exhibit E).
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parties, and indicated which documents/information had already been produced. The DOC provided responses to these requests in February 2010. (See Feb. 5, 2010 Letter and Emails (Exhibit F)). Significantly, the DOC informed the DOJ at that time that “there were no formal or informal charges or complaints (external or internal) of race, national origin and/or gender discrimination in hiring for the entry-level corrections officer position in the [DOC] for the years of 2000 to 2010.”5 (Exhibit B). The DOC also provided information on the status and expiration dates of eligibility lists. (See Feb. 2010 Response to Question 8 (Exhibit G)). In April 2010, the DOJ again requested information from the DOC. (See May 2010 Emails (Exhibit H)). By May 21, 2010, the DOC had provided responses to DOJ’s April 2010 questions. Id.
On August 18, 2011, two months after DOC held a June 2011 recruitment period and administered examinations in July and August 2011, the DOJ requested additional materials, including updated information regarding the selection process for the June 2011 recruitment period. (See Aug. 18, 2011 Letter (Exhibit I)). The DOC provided the answers to this request on September 16, 2011. (See Sept. 16, 2011 Email and Letter (Exhibit J)). Of note, the DOC’s answers informed the DOJ that the candidate list generated from the April 19, 2009 to May 10, 2009 recruitment period “was deactivated April 13, 2011. After two years, the list was stale; all applicants were notified by letter and encouraged to reapply” and as such, there was no further processing or hiring of those candidates. (Exhibit J, Response to Question 2). The DOC also informed the DOJ that the DOC was “currently in the process of recruiting and selecting an academy class scheduled to begin in February 2012.” (Exhibit J, Response to Question 4). From February through June 2012, the DOJ sent emails to the DOC containing Third, Fourth, Fifth,
5 Nor have any such complaints or charges been filed as of the date of this instant Motion. 7

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and Sixth Requests for Information and Documents, as well as other follow up questions. (See e.g. Feb. to June 2012 Emails (Exhibit K)). The DOC provided answers to these requests.
The DOC had provided the majority of the information requested to the DOJ by April 2010 in response to the DOJ’s multiple requests—particularly the information regarding the examinations and applicant data, which DOJ now alleges as a basis for their Complaint. Over the 4 years, the DOC provided detailed information responsive to every DOJ request (in some instances on multiple occasions). The DOC administered a written cognitive test and video examination in July, August, and September 2011.6 The tests were administered again in October and November 2013.
On November 22, 2013, the DOJ informed the DOC by email that its investigation into “whether the selection procedure for correctional officers at RIDOC complies with Title VII” was complete. (Nov. 22, 2013 Email (Exhibit L)). The DOJ did not state the result of the investigation in the email. Id. On November 25, 2013, the DOC was advised for the first time in a telephone conference with the DOJ that allegations of Title VII violations would be forthcoming in a letter. The DOJ sent the letter to the DOC on November 26, 2013. The letter arrived just two weeks after the DOC administered the selection examinations in October and November 2013 to correctional officer candidates. (Nov. 26, 2013 Letter (Exhibit M)). Aside from the telephone conference the day before, this letter was the first time the DOJ made allegations against the DOC, and claimed that the DOC is “engaged in a pattern or practice of discrimination against African Americans and Hispanics with respect to the hiring of entry-level
6 The candidates who took the September 2011 examinations and were selected for the academy populated Class 79 (academy dates February to April 2012) and Class 80 (academy dates March to May 2013). The examinations were administered in June and October 2012 for three individuals who had been on military leave. The eligibility list associated with the 2011 (and June/October 2012) examinations expired on August 15, 2013.
8

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Correctional Officer (‘CO’) positions.”7 Id. The DOJ alleged in the letter that DOC “has caused an adverse impact on African-American and Hispanic applicants” reaching back to 2000, despite the fact that no complaints or charges have ever been brought to the DOC’s attention. See id. The letter also alleged without support, that DOC’s examinations were not job-related or consistent with business necessity. Id.
The November 26, 2013 letter stated that “[w]e invite Rhode Island to discuss with us entering into a consent decree incorporating the measures we believe must be taken in order to comply with Title VII.” (Exhibit M). The DOJ’s proposed mandatory measures included: the cessation of the current written cognitive test and video examination (which had just been administered to over 2,200 applicants); adoption and implementation of proposed screening and selection employment practices that comply with Title VII; and the provision of “make-whole relief” to African-American and Hispanic applicants who were allegedly harmed by the DOC’s use of the written and video examinations for the period of 2000 to present. Id. The DOC immediately informed the 2013 candidates that the selection process was suspended until further notice; no action has been taken with regard to the 2013 examinations.
On February 10, 2014, the DOJ filed the instant lawsuit, claiming that DOC violated Title VII and seeking prospective injunctive relief and retrospective “make whole” relief for those who “have been harmed or will be harmed as a result of the discriminatory policies and practices” as alleged. (Complaint, Doc. 1, Prayer for Relief ¶ d).
7 The November 26, 2013 letter was entitled “Authorized Suit against the State of Rhode Island and its Department of Corrections, pursuant to Section 707 of Title VII of the Civil Rights Act of 1964, as amended, with respect to the hiring of entry-level correctional officers.” (Exhibit M).
9

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IV. ARGUMENT A. The DOJ failed to provide timely notice.
The DOJ ignored the statutory framework of title VII by failing to file a charge or timely notice to the DOC and by failing to attempt meaningful conciliation before bringing this action. The DOJ commenced this action on February 10, 2014, alleging an unintentional “pattern or practice” disparate impact discrimination case under Section 707 of Title VII, 42 U.S.C. § 2000e-6. (Complaint, Doc. 1, ¶¶ 35-36). Section 707 is the vehicle for the Attorney General to bring actions against State and local government employers and for the EEOC to bring actions against private and Federal Government employers to challenge “pattern or practice” discrimination. See 42 U.S.C. § 2000e-6. The DOJ now seeks relief that is individual in nature (Complaint, Doc. 1, Prayer for Relief ¶ d) and unavailable under Title VII in such a pattern or practice case without having first complied with procedural safeguards, such as timely notice of alleged violations. The DOJ has failed to follow the relevant procedures and, in essence, contends that it operates outside of any limitations period.
Neither Congress nor any First Circuit authority has exempted the DOJ from following the notice and conciliation provisions of Title VII in seeking individual relief, including monetary damages. In the usual case, a Title VII claim must be built on the procedural framework. Specifically, a person claiming to be aggrieved by an allegedly unlawful employment practice must file a charge with the EEOC. Section 706(b) (42 U.S.C. § 2000e5(b)). The charge must be in writing, under oath, and must be filed within one hundred and eighty (180) days after the allegedly unlawful employment action occurred.8 Section 706(b) and
8 If the aggrieved person has filed with a state or local agency with authority to grant or seek relief from unlawful employment practices, the charge must be filed within three hundred (300) days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1).
10

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(e)(1) (42 U.S.C. § 2000e-5(b) and (e)(1)). Notice of the charge, including the date, place, and
circumstances of the alleged unlawful employment practice, must be served on the employer ten
(10) days after the charge is filed. Section 706(b) and (e)(1)(42 U.S.C. § 2000e-5(b) and(e)(1)).
The EEOC may then investigate the charge and make a determination in a prompt manner, not
more than 120 days from date of filing. Section 706(b) (42 U.S.C. § 2000e-5(b)). If the EEOC
determines reasonable cause exists to support the allegation, then the EEOC must work to
conciliate the issue. Section 706(b) (42 U.S.C. § 2000e-5(b)). The EEOC may refer a case to the
DOJ to pursue a civil action in the event that no conciliation agreement with a State or local
government defendant is reached. Section 706(f)(1) (42 U.S.C. § 2000e-5(f)(1)).
Title VII pattern and practice suits are brought pursuant to Section 707, 42 U.S.C. §
2000e-6. Section 707(a), states in relevant part that:
“Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States…requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.” 42 U.S.C. § 2000e-6(a) (emphasis added).
There is no explicit provision for individual relief within the confines of Section 707(a). This
Section refers to other provisions of Title VII and signifies that Section 707(a) must be read within the framework of Title VII as a whole, inclusive of procedural requirements.9
9 The DOJ’s Complaint recognizes that Title VII must be read as a whole by referencing Section 703(k) (42 U.S.C. § 2000e-2(k)) and noting that DOC can demonstrate that a challenged practice is job related and consistent with business necessity. (See Complaint, Doc. 1, ¶¶ 31-33). Congress codified the elements and burdens of a disparate impact claim in 42 U.S.C. § 2000e2(k) (Section 703(k)), but such language is not specifically set forth in Section 707.
11

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Section 707(a) in no way excuses the DOJ from complying with the temporal limits and
notice requirements set out in Title VII. Congressional amendments and Presidential actions
demonstrate that the DOJ cannot ignore such procedures and requirements. As part of the 1972
amendments to Title VII, Congress enacted Section 707(c), 42 U.S.C. § 2000e-6(c), which
states:
“[e]ffective two years after March 24, 1972, the functions of the Attorney General under this section shall be transferred to the Commission, together with such personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, used, held, available, or to be made available in connection with such functions unless the President submits, and neither House of Congress vetoes, a reorganization plan pursuant to chapter 9 of Title 5, inconsistent with the provisions of this subsection. The Commission shall carry out such functions in accordance with subsections (d) and (e) of this section.”
This transfer of functions from the DOJ to the EEOC led to some confusion and uncertainty
concerning the DOJ’s authority to bring pattern or practice actions against State and local
governments. H.Rep. No. 95-1069. Prior to the 1972 amendments, the DOJ was the only entity
that could file a pattern or practice suit against any defendant. Section 707(c) transferred the
authority to bring pattern or practice suits to the EEOC. This provision is subject to a 1978 Executive Reorganization Plan, initiated by President Carter.10
In President Carter’s message to Congress, he affirmed that the Reorganization Plan No.
1 of 1978 would “[c]larify the Attorney General’s authority to initiate ‘pattern or practice’ suits
under Title VII in the public sector.” See Notes to 42 U.S.C. § 2000e-4, Message from President
10 Under Chapter 9 of Title 5, Congress authorized the President to restructure and reorganize the executive branch to promote economy, expeditious administration, and efficient operation. 5 U.S.C. § 901. This authority for restructuring can group, coordinate, and consolidate agencies and functions of Government, reduce the number of agencies, or consolidate agencies with similar functions to eliminate overlapping and duplication of effort. 5 U.S.C. § 901. Section 707(c) authorized such a reorganization plan and neither house of Congress voted to reject the plan.
12

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Carter to Congress. The message further confirmed that while the DOJ litigates cases involving State and local governments, the EEOC may bring pattern or practice suits against other defendants.
Section 5 of the Reorganization Plan No. 1 of 1978, 43 F.R. 19807, 92 Stat. 3781, entitled “Transfer of Public Section 707 Functions” states:
“[a]ny function of the Equal Employment Opportunity Commission concerning initiation of litigation with respect to State or local government, or political subdivisions under Section 707 of Title VII of the Civil Rights Act of 1964, as amended, (42 U.S.C. 2000e-6, [section 2000e-6 of this title] and all necessary functions related thereto, including investigation, findings, notice and an opportunity to resolve the matter without contested litigation, are hereby transferred to the Attorney General, to be exercised by him in accordance with procedures consistent with said Title VII [section 2000e et seq. of this title]... .” (emphasis added). The Title VII Reorganization Plan was accepted by Congress without change. Section 5 was incorporated into an Executive Order. See Executive Order No. 12068, 43 F.R. 28971, June 30, 1978. Section 5 requires the Attorney General to exercise “Section 707” powers “in accordance with procedures consistent with said Title VII [section 2000e et seq. of this title].” As such, the DOJ must exercise Section 707 authority in accordance with all sections and parts of Title VII, including the procedures set forth in Section 706. The Reorganization Plan and Executive Order along with Section 707(c) have the full force of law. By enacting Section 707(c), Congress recognized that a later presidential reorganization plan could modify the enforcement scheme of Title VII. The 1978 Reorganization, including the directive that the DOJ under Section 707 exercise authority “in accordance with procedures consistent with said Title VII,” has remained intact with each subsequent Congress and President. See Section 5, Reorganization Plan No. 1, 43 F.R. 19807, 92 Stat. 3781.
13

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The 1972 congressional amendments, the Reorganization Plan, and the Executive Order brought coherence to Title VII, unifying the enforcement scheme. Such a unified enforcement scheme requires consistency, according all defendants the same procedural safeguards and due process. The Reorganization Plan’s “language reiterates many of the s[ection] 706 procedural prerequisites to litigation… .” U.S. v. Fresno Unified School Dist., 592 F.2d 1088, 1095-1096 (9th Cir. 1979). The language explicitly references the procedural safeguards contained in Section 706, including that a defendant receive notice and an opportunity to resolve the matter without litigation. The Ninth Circuit addressing the intent of the 1978 Reorganization reasoned that “[t]he apparent intent of the Reorganization Plan is to incorporate all s[ection] 706 requirements applicable to pattern or practice suits.” Id. at 1095-1096. Fresno held that the Attorney General may litigate a pattern or practice suit against a public employer so long as Section 706 procedural requirements are satisfied.11 Id. at 1096.
Just as the Reorganization Plan requires the Attorney General to follow Section 706 procedures, the plain and unequivocal language of Section 707(e) mandates that the EEOC must conduct a Section 707 action in accordance with Section 706 procedures.12 See EEOC v. Bass
11 Fresno did not address the question of which procedures apply in pattern and practice suits See U.S. v. Fresno Unified School Dist., 592 F.2d 1088, 1096 n. 5 (9th Cir. 1979). 12 Though district courts have had varied interpretations of the applicability of Section 706 procedures to Section 707(e), the recent trend is that “[t]he plain language of § 707(e) authorizes the EEOC to investigate and act on a charge of a pattern or practice of discrimination, and mandates that such actions be taken in accordance with the procedures of §706.” EEOC v. Bass Pro Outdoor World, LLC, 884 F.Supp.2d 499, 522-23 (S.D. Texas, 2012) (quoting EEOC v. Kaplan Higher Educ. Corp., 790 F.Supp.2d 619, 623 (N.D. Ohio, 2011); see also U.S. EEOC v. Global Horizons, Inc., 904 F.Supp.2d 1074 (D. Hawaii, 2012); EEOC v. PBM Graphics Inc., 877 F.Supp.2d 334, 351-352 (M.D. NC 2012); but cf. EEOC v. Sterling Jewelers, Inc., No. 08-706, 2010 WL 86376 (W.D.N.Y. 2010); EEOC v. LA Weight Loss, 509 F.Supp.2d 527 (D. Maryland, Northern Division, 2007); EEOC v. Mitsubishi Motor Mfg. of America, Inc., 990 F.Supp. 1059 (C.D. Ill. 1998).
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Pro Outdoor World, LLC, 884 F.Supp.2d 499, 522-523 (2012); EEOC v. Global Horizons, 904 F.Supp.2d 1074, 1093 (2012). Regardless of whether the matter involves the DOJ or the EEOC these procedural requirements must be followed.
It is well established that timeframes are important in discrimination cases. See Jensen v. Frank, 912 F.2d 517, 521 (1st Cir. 1990) (“This court has respected Title VII’s temporal strictures, and, accordingly, has taken a narrow view of equitable modification in Title VII cases.”). Underlying the language and structure of Title VII is the Congressional intent to provide an expeditious and swift resolution of alleged discrimination. Section 707 is explicit that “pattern or practice” actions are to be “in every way expedited.” See 42 U.S.C. § 2000e-6(b). The Supreme Court has reasoned that “[b]y choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.” Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980). The Court noted that in this “statutory scheme…Congress carefully prescribed a series of deadlines measured by number of days—rather than months or years… .” Id. at 825-826. As such, the Court respected “the compromise embodied in the words chosen by Congress.” Id. at 826. Title VII actions are designed for prompt notification of the underlying allegation and the statute delineates specific timeframes for the filing of a charge and determination of reasonable cause to achieve such purposes.
The DOJ failed to provide the DOC with timely notice of the time, date, and circumstances of the alleged unlawful employment practices as would have been provided to a private or Federal employer defendant. A private or Federal employer would have been provided notice within ten (10) days of the filing of a charge with the EEOC and reasonable cause would have been determined not more than 120 days from the filing of such charge. See 42 U.S.C. §
15

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2000e-5. The purpose of these procedures is to bring the alleged unlawful employment practice to the attention of the employer to expeditiously address and cure the issue if possible. Indeed, a private or Federal employer would have an absolute defense to claims going back 14 years. However, the first time the DOJ alleged a Title VII violation with any information pertaining to the time, date, and circumstances of the alleged unlawful employment practices was in the November 26, 2013 letter. There was no timely notice of any of the challenged practices, nor did the DOJ engage in meaningful efforts to conciliate the matter to resolve it expeditiously and without contested litigation. Under Title VII’s procedural regime, litigation “is not a remedy of first resort.” Rivera-Diaz v. Humana Insurance of Puerto Rico, Inc., 2014 WL 1395064 at *2 (1st Cir. 2014)(quoting Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005)). While the primary aim of Title VII is to eliminate discriminatory barriers to employment, the DOJ has frustrated Title VII’s goals of providing an expeditious resolution of alleged violations through timely notice, due process, and meaningful conciliation.
The internal procedures are of heightened importance because Title VII itself does not contain a statute of limitations. The Supreme Court recognized the importance of the procedures contained in Section 706 in rejecting the use of state statute of limitations in a case brought by the EEOC. See Occidental Life Ins. Co. of California v. E.E.O.C., 432 U.S. 355, 367-372 (1977). The Court reasoned that a state statute of limitations can “under some circumstances directly conflict with the timetable for administrative action expressly established in the 1972 Act.” Id. at 369. As previously noted, in Section 706, Congress codified several procedural safeguards designed for Title VII defendants. The Occidental Court recognized that applying analogous state statute of limitations was unnecessary because of the internal procedures and temporal limitations provided in Section 706. See Occidental, 432 U.S. at 372-373. The Court stated that:
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“[t]he absence of inflexible time limitations on the bringing of lawsuits will not, as the company asserts, deprive defendants in Title VII civil actions of fundamental fairness or subject them to the surprise and prejudice that can result from the prosecution of stale claims. Unlike the litigant in a private action who may first learn of the cause against him upon service of the complaint, the Title VII defendant is alerted to the possibility of an enforcement suit within 10 days after a charge has been filed. This prompt notice serves, as Congress intended, to give him an opportunity to gather and preserve evidence in anticipation of a court action.” Occidental, 432 U.S. at 372. Instead of following a state statute of limitations, the Occidental Court emphasized the use and practicality of following proscribed Title VII procedures. Furthermore, it is well-settled that that the government is acting within its sovereign capacity where it seeks to enforce rights belonging to it; however, it steps outside of its sovereign capacity when it seeks to recover sums due to individual citizens. U.S. v. Georgia Power Co., 474 F.2d 906, 923 (1973) (citing United States v. Beebe, 127 U.S. 338, 346 (1888); United States v. Summerlin, 310 U.S. 414 (1940)). Based on this distinction, the Fifth Circuit stated that “[i]nsofar as the pattern or practice suit constitutes a proper legal conduit for the recovery of sums due individual citizens rather than the treasury, it is a private and not a public action.” Georgia Power, 474 F.2d at 923. In this action, the DOJ is seeking “make whole” relief on behalf of individuals. In this respect, it is acting outside of its sovereign capacity and therefore must comply with the requirements of Section 706. The DOJ is seeking “make whole” relief, which is individual in nature. The only provisions for such relief, and the procedures by which the relief may be obtained in Title VII are Sections 706(e)(3)(b) and (g)(1) (42 U.S.C. § 2000e-5(e)(3)(b) and (g)(1)). Section 706(g)(1) states in relevant part that: “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate,
17

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which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission... .” 42 U.S.C. § 2000e-5(g)(1)(emphasis added). The ability to obtain a maximum of two years of back pay is premised on the filing of a charge indicating the time, place, and circumstances of the unlawful discrimination. See 42 U.S.C. § 2000e-5(b) and (e)(1). The DOJ has ignored the mandated procedures in Title VII in this action against the State of Rhode Island. As there has been no charge or timely notice served on the DOC, there is no date from which the two year maximum of back pay liability or any other individual relief could attach. Moreover, a private employer or a Federal defendant would be entitled to timely notice and conciliation before any consideration of individual liability. The structure and purpose of Title VII require that the sections be construed and harmonized together to support a coherent and consistent enforcement regime. See Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995) (noting that a statute “is to be interpreted as a symmetrical and coherent regulatory scheme”). Both Federal and State government defendants should be afforded the same procedural process in Section 707 “pattern or practice” actions. It is an absurd and inequitable result, inconsistent with Title VII, to afford greater protection to the Federal Government than to a State government. Such an unfettered authority would allow the DOJ to revive individual claims long since barred by the procedures set forth in Title VII, and would allow the DOJ to file a complaint seeking relief for an unlimited period of time even beyond the 14 years at issue here. The asymmetrical application of Section 707 the DOJ seeks here is contrary to Congressional intent. This is precisely what the DOJ seeks in the instant Complaint. In this action, no individual relief
18

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can be obtained since the DOJ did not comply with Title VII timeframes and procedural requirements. As such, the Complaint must be dismissed.
B. Time limitations apply to all federal causes of action seeking individual relief. If the internal procedures of Title VII, specifically those identified in Section 706 (42 U.S.C. § 2000e-5), do not apply in the instant case, then the application of the analogous state statute of limitations must apply to any claims of individual relief. The Occidental Court recognized that the application of an analogous state statute of limitations would conflict with and frustrate the internal timeframes of Title VII that govern individual relief in actions brought by the EEOC. See Occidental, 432 U.S. at 367-372. The Supreme Court has recognized that a case without a limitations period “would be utterly repugnant to the genius of our laws.” Adams v. Woods, 2 Cranch 336, 342 (1805). The Supreme Court “has long followed the rule that, unless the United States was suing in its sovereign capacity, ‘in the absence of any provision of the act of Congress creating the liability, fixing the limitation of time for commencing actions to enforce it, the statute of limitations of the particular State is applicable.” Occidental, 432 U.S. at 375 (Rehnquist, J. dissenting) (quoting McLaine v. Rankin, 197 U.S. 154, 158 (1905)). Here, the relief sought in this case is individual in nature and outside of the sovereign capacity of the United States. “[C]laim[s] for backpay and reinstatement benefit an individual, not the government.” Dole v. Hopple Plastics Inc., 902 F.2d 33 at *4 (6th Cir. 1990) (unpublished)(addressing back pay and sovereign capacity in a Consumer Credit Protection Act case). A limitations period must apply.
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V. CONCLUSION For the reasons set forth, and those to be advanced at oral argument, the State respectfully requests that this Honorable Court dismiss the DOJ’s Complaint.
Respectfully submitted: STATE OF RHODE ISLAND, and RHODE ISLAND DEPARTMENT OF CORRECTIONS By Its Attorney, PETER F. KILMARTIN ATTORNEY GENERAL /s/ Neil F.X. Kelly ____________________________________ Neil F.X. Kelly (Bar No. 4515) Rebecca Tedford Partington (Bar No. 3890) Assistant Attorneys General Ariele Yaffee (Bar No. 8646) Edward G. Mullaney (Bar No. 8843) Special Assistant Attorneys General 150 South Main Street Providence, Rhode Island, 02903 Tel: (401) 274-4400 ext. 2284, 2303 Fax: (401) 222-3016 nkelly@riag.ri.gov rpartington@riag.ri.gov
20

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

___________________________________

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

) C.A. No. 14-78 S

)

RHODE ISLAND DEPARTMENT OF

)

CORRECTIONS; and

)

STATE OF RHODE ISLAND,

)

)

)

Defendants.

)

___________________________________)

MEMORANDUM AND ORDER

WILLIAM E. SMITH, Chief Judge. The Court is confronted with a seemingly straightforward

pair of inquiries.

First, what, if any, procedural

prerequisites must the United States Attorney General abide by

in bringing a lawsuit under Section 707 of Title VII? Second,

does any statute of limitations apply to such a lawsuit under

Section 707(a)?

Upon consideration and analysis, these

questions are anything but simple and require an extensive examination of Title VII.1

1 As some courts have noted, there is a “‘general dearth of authority’ on the issue of what Title VII prerequisites the United States is required to follow” under Section 707(a). United States v. McHenry Cnty., No. 94 C 50086, 1994 WL 447419, at *4 (N.D. Ill. Aug. 17, 1994) (quoting United States v. N. Mariana Islands, Civ. A. No. 92–0016, 1993 WL 763588, at *1

Here, the United States Attorney General (“Attorney General” or “Government”) initiated a lawsuit under Section 707 of Title VII against the Rhode Island Department of Corrections (“DOC”) and the State of Rhode Island (collectively “Defendants”), alleging that the DOC engaged in a pattern or practice of unintentional discrimination in its hiring practices of correctional officers from 2000 to present. The Attorney General seeks an injunction to prevent future discrimination and back-pay damages to “make whole” those who have been harmed by the discriminatory practice in the past. The DOC has moved to dismiss the Complaint (ECF No. 9), arguing that the Attorney General failed to comply with the procedural prerequisites set out in Title VII, and did not bring this lawsuit within the time period required to obtain back pay.
Because the Court determines that the Attorney General need not clear the procedural hurdles set forth in Section 706 of Title VII, and is not bound by a statute of limitations, the DOC’s Motion to Dismiss is DENIED.2
(D.N.M.I. Nov. 18, 1993)). Since the McHenry and Northern Mariana Islands decisions this deficit has remained.
2 In practical effect the DOC’s Motion to Dismiss functions alternatively as a Motion to Limit Damages, since it seeks to partially cut off liability under a statute of limitations. Consideration of this alternative is appropriate here because the DOC advances a legal, not factual, argument. See Rob Evans & Assoc., LLC v. United States, C.A. No. 12-cv-30130-MAP, 2013 WL 8351202 at *16 (D. Mass. Nov. 20, 2013) report &
2

I. Background A. Facts3
Since 2000, the DOC has used written and video examinations
for screening and selecting candidates for entry-level
correction officer (“CO”) jobs. (Compl. ¶¶ 9-10.) Candidates
must obtain passing scores on each of these exams to be placed
on an eligibility list for CO positions. (Compl. ¶ 11.) DOC
then places applicants on an eligibility list in descending
order based solely on their video examination scores.
From 2000 to 2011, approximately 94% of white applicants
passed the written examination for entry-level CO positions
compared to 74% of Hispanic applicants and 74% of African-
American applicants. (Compl. ¶¶ 16-17.) During the same time
period, approximately 66% of white applicants passed the video
examination for entry-level CO positions compared to 37% of
Hispanic applicants and 47% of African-American applicants.
(Compl. ¶¶ 22-23.) Considering the scores from both tests
recommendation adopted, C.A. No. 12-cv-30130-MAP, 2014 WL 1304014 (D. Mass. Mar. 31, 2014) (holding Court may properly consider limitation of damages on motion for judgment on pleadings where question of limiting damages turns on legal determination); see also Warner v. United States, C.A. No. 09036-ML, 2010 WL 2024766, at *1 (D.R.I. May 18, 2010) (limiting damage recovery in pre-trial motion).
3 The facts are taken from Plaintiff’s Complaint and are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The parties also agree that they discussed a negotiated settlement in November 2013, but no such agreement was reached.
3

combined, approximately 63% of white applicants passed both tests compared to 33% of Hispanic applicants and 41% of AfricanAmerican applicants from 2000 to 2011. (Compl. ¶¶ 24-25.) The DOC initiated the written and video examination process most recently in November 2013, but the results from this round of testing have not been used.
On February 2, 2014, relying upon these statistics, the United States Department of Justice (“DOJ”) initiated this lawsuit on behalf of the Attorney General, seeking injunctive relief and back pay for those individuals affected;4 the investigation into whether such a lawsuit should be filed began long before that date. In a letter sent in September 2009, the DOJ stated that it had information indicating that “the percentages of black, Hispanic and female correctional officers at the [DOC] are significantly lower than would be expected for an agency of this type.” The letter further informed the DOC that the DOJ would be conducting an investigation into whether a pattern or practice of discrimination was to blame for this discrepancy.
4 While the Complaint alleges improper conduct by the DOC since 2000, during oral argument, the DOJ specified that it would only be seeking back pay for conduct “starting two years before the notice of investigation letter when the United States provided Rhode Island with notice that it could face Title VII liability for the way it hires correction officers.” (Tr. of Mot. to Dismiss 23, ECF No. 21.)
4

This investigation concluded in November 2013, when the DOJ
notified the state of the Attorney General’s intention to bring suit if a negotiated resolution could not be reached.5 No
resolution was reached.
B. Statutory Framework
1. Title VII
The Attorney General has brought this case pursuant to
Section 707(a) of Title VII. In pertinent part, this provision
states:
Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint . . . .
42 U.S.C. § 2000e-6(a). Some courts have held that to initiate
a case under Section 707(a), the Attorney General must merely
comport with the letter of this statute and believe that
reasonable cause exists to file a suit. See United States v.
Masonry Contractors Ass’n. of Memphis, Inc., 497 F.2d 871, 875-
76 (6th Cir. 1974); United States v. New Jersey, 473 F. Supp.
1199, 1203-05 (D.N.J. 1979) (same); Lanning v. Se. Pennsylvania
Transp. Auth., 176 F.R.D. 132, 140 (E.D. Pa. 1997) (“It is well-
5 From September 2009 to November 2013, the DOC cooperated with the Government investigation.
5

established that the administrative requirements of Section 706, including the obligation to engage in conciliation, do not apply to cases brought by the Attorney General under Section 707.”). At least one court, however, has opined that the Attorney General is likely bound to follow the prerequisites found in Section 706 of Title VII, which are discussed in more detail below. United States v. Fresno Unified Sch. Dist., 592 F.2d 1088, 1095-96 (9th Cir. 1979) (noting that it appeared as though Congress intended to apply the requirements of Section 706 to Section 707).
Meanwhile, a different subsection of Section 707 authorizes the Equal Employment Opportunity Commission (“EEOC”) to “investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission.” 42 U.S.C § 2000e-6(e). Such actions, however, “shall be conducted in accordance with the procedures set forth in [Section 706] of this title.” Id.
These Section 706 procedures require, among other things, that an individual alleging an unlawful employment practice must file a charge with the EEOC within 180 days of the alleged unlawful employment action. Id. § 2000e-5(e)(1). The EEOC then provides the employer with notice of this charge. Id. § 2000e5(b). Section 706 further requires that the EEOC promptly
6

investigate any unlawful employment action within 120 days. Id. at § 2000e-5(b). If the EEOC determines that “there is reasonable cause to believe that the charge is true,” then it must engage in conciliation to try to informally eliminate the offending action. Id. § 2000e-5(b). Section 706(e)(3)(B) limits back pay to two years preceding the filing of a charge with the EEOC.
The parties’ contentions in this case require a close examination of the history of Section 707. While “Section 707(a) of Title VII . . . has remained unchanged since its enactment as part of the Civil Rights Act of 1964,” United States v. City of Yonkers, 592 F. Supp. 570, 573 (S.D.N.Y. 1984), the 1970s saw significant upheaval with respect to the remaining subsections of Section 707. This statutory turmoil was discussed in great detail in City of Yonkers and will be recounted here briefly.
First, in 1972, Congress amended the definition of “person” in Title VII, to include “governments, governmental agencies [and] political subdivisions.” 42 U.S.C. § 2000e(a); Pub. L. No. 92-261, § 2(1), 86 Stat. 103 (1972); see also City of Yonkers, 592 F. Supp. at 573. Second, Congress added two new subsections to Section 707 in 1972 -- Sections 707(c) and 707(d). Section 707(c) provided that, effective March 24, 1974, the EEOC would take over the functions of the Attorney General
7

“under this section . . . unless the President submits, and
neither House of Congress vetoes, a reorganization plan pursuant
to chapter 9 of Title 5, inconsistent with the provisions of
this subsection. The Commission shall carry out such functions
in accordance with subsections (d) and (e) of this section.”
Section 707(d) simply provided that when the functions of the
Attorney General were transferred to the EEOC, any pending case
“shall continue without abatement, all court orders and decrees
shall remain in effect, and the Commission shall be substituted
as a party for the United States of America, the Attorney
General, or the Acting Attorney General, as appropriate.”
From 1974 to 1978 confusion reigned in the federal courts
concerning whether Section 707(c) completely stripped the
Attorney General of authority to initiate pattern or practice
lawsuits. See New Jersey, 473 F. Supp. at 1203-05 (discussing
evolution of statute). In an attempt to clear up this
confusion, in 1978 President Jimmy Carter issued Reorganization
Plan No. 1 under the Reorganization Act of 1978. This
Reorganization Plan stated:
Any function of the [EEOC] concerning initiation of litigation with respect to State or local government, or political subdivisions under Section 707 of Title VII of the Civil Rights Act of 1964, as amended, (42 U.S.C. 2000e-6, [section 2000e-6 of this title] and all necessary functions related thereto, including investigation, findings, notice and an opportunity to resolve the matter without contested litigation, are hereby transferred to the Attorney General, to be
8

exercised by him in accordance with procedures consistent with said Title VII [section 2000e et seq. of this title]. The Attorney General is authorized to delegate any function under Section 707 of said Title VII [section 2000e-6 of Title 42, The Public Health and Welfare]. The Attorney General is authorized to delegate any function under Section 707 of said Title VII to any officer or employee of the Department of Justice.
Reorganization Plan No. 1 of 1978, 43 Fed. Reg. 19807, 92 Stat.
3781, reprinted at 5 U.S.C. App. at 423.
This plan was transmitted by the President to Congress on
February 23, 1978. United States v. Baltimore Cnty., Civil
Action No. H78-836, 1978 WL 93, at *2-3 (D. Md. July 3, 1978).
Through Congressional inaction it became law. See 5 U.S.C.
§ 906; H.R. Rep. 98-128 (noting that the current version of the
Reorganization Act differs from the pre-1984 version in an
important way – namely the pre-1984 version provided that
reorganization plans became effective unless either house of
Congress passed a resolution disapproving of the plan within a
required period of time). At the time Reorganization Plan No. 1
of 1978 became effective, President Carter issued Executive
Order No. 12068, specifying that this order was meant “to
clarify the Attorney General's authority to initiate public
sector litigation under Section 707 of Title VII of the Civil
Rights Act of 1964.” Executive Order No. 12068 also specified
that “[t]he functions transferred to the Attorney General by
section 5 of the Reorganization Plan Number 1 of 1978 [set out
9

as a note under section 2000e-4 of this title] shall, consistent with section 707 of Title VII of the Civil Rights Act of 1964, as amended [this section], be performed in accordance with Department of Justice procedures heretofore followed under section 707.” Exec. Order No. 12068, 43 Fed. Reg. 19807 (June 30, 1978).
2. The Reorganization Act Finally, to properly examine the impact of the Reorganization Act, one must understand that peculiar statute. The Reorganization Act provides a mechanism for the President “to promote the better execution of the laws” and “more effective management of the executive branch.” 5 U.S.C. § 901(a)(1). Under this law, the President may “from time to time examine the organization of all agencies and shall determine what changes in such organization are necessary.” Id. at § 901(d). When the President decides reorganization is needed, he must send his proposal for such a change to Congress. At the time President Carter sent Reorganization Plan No. 1 of 1978 to Congress, the Reorganization Act contained a legislative veto provision, which permitted either the House of Representatives or the Senate to derail a proposal by passing a resolution. See id. § 906; H.R. Rep. 98-128. Therefore, Reorganization Plan No. 1 of 1978 became law through
10

congressional inaction, rather than affirmative approval from legislators.6
DOC’s Motion to Dismiss argues that the Attorney General failed to follow the required procedures set out in Section 706 of Title VII. Alternatively, the DOC argues that the Attorney General failed to file its lawsuit within the applicable statute of limitations to obtain individual relief. In response, the DOJ asserts that the Attorney General is not required to comport with any prerequisites and must merely have reasonable cause to bring a suit under Section 707(a). II. Discussion
A. Section 707(a) and Statutory Prerequisites After careful consideration, the Court has determined that the Attorney General, while bringing a lawsuit pursuant to Section 707 of Title VII, is not required to adhere to any of the statutory prerequisites found in Section 706 of that statute. This holding is consistent with the weight of authority on the issue. New Jersey, 473 F. Supp. at 1203-05; Lanning, 176 F.R.D. at 140; cf. EEOC v. Freeman, No. RWT
6 Ultimately, in INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court held these kinds of legislative vetoes were unconstitutional. This Court need not delve into the impact Chadha has on this case since Congress subsequently “ratifie[ed] and affirm[ed] as law each reorganization plan” implemented before the Chadha decision. Pub. L. No. 98–532, § 1, 98 Stat. 2705 (1984); Guidry v. Sheet Metal Workers Int’l Ass’n, Local No. 9, 10 F.3d 700, 709 (10th Cir. 1993).
11

09cv2573, 2010 WL 1728847, at *4 (D. Md. Apr. 27, 2010)

(“Suffice it to say, the EEOC's authority, unlike that possessed

by the DOJ, is restricted by the procedures set forth in Section

706.”).

There is no doubt that the Attorney General was under no

burden to comply with Section 706 prior to the 1972 amendments

to Section 707. See Masonry Contractors Ass’n, 497 F.2d at 875-

76. Whether these amendments, coupled with Reorganization Plan

No. 1 of 1978 and Executive Order No. 12068, created additional

obligations for the Attorney General is the question presented

here. Executive Order No. 12068 and Reorganization Plan 1

contain slightly different language.

Whereas under the

Executive Order the Attorney General is ordered to perform his

duties consistent with “Section 707 of Title VII” and DOJ

policies, Reorganization Plan No. 1 calls upon the Attorney

General to act “in accordance with procedures consistent with

said Title VII [section 2000e et seq. of Title 42, The Public

Health and Welfare].”

In Executive Order No. 12068, President Carter identified

the United States Constitution and the Reorganization Act as his

sources of power. “If an executive order has a specific

statutory foundation it is given the effect of a congressional

statute.” City of Albuquerque v. U.S. Dep't of Interior, 379

F.3d 901, 913-14 (10th Cir. 2004) (holding statute giving

12

President authority to set “policies and directives” necessary to enforce the Federal Property and Administrative Services Act of 1949 provided statutory foundation for executive order related to the selection of federal office space in urban areas); Farkas v. Texas Instrument, Inc., 375 F.2d 629, 632 n.1 (5th Cir. 1967) (holding statute related to government procurement provided statutory foundation for executive order prohibiting discrimination in government contracting); see also Contractors Ass'n of E. Pa. v. Sec'y of Labor, 442 F.2d 159, 167-71 (3d Cir. 1971) (discussing history of executive orders).7 Meanwhile, if an executive order conflicts with an existing statute, the executive order must fall. See Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1332-34 (D.C. Cir. 1996).
In this case, the Reorganization Act gave the President the authority to issue Executive Order No. 12068. New Jersey, 473 F. Supp. at 1205 n.13. Thus, both Reorganization Plan No. 1 and Executive Order 12068 carry the effect of Congressionally enacted statutes, which became effective at roughly the same time but which contain somewhat varied language. The Court “[declines] to read the statutes as being in irreconcilable
7 Supreme Court Justice Robert H. Jackson famously reasoned that a President is acting at the height of his authority when he acts pursuant to express or implied authorization from Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring).
13

conflict without seeking to ascertain the actual intent of Congress.” Watt v. Alaska, 451 U.S. 259, 266 (1981).
The 1972 amendments to Section 707 were widely seen as divesting the Attorney General of the power to bring pattern or practice lawsuits. See, e.g., New Jersey, 473 F. Supp. at 120305. Reorganization Plan No. 1 sought to correct this apparently unintended consequence. See Executive Order No. 12068. Nowhere in the history surrounding the 1972 amendments, Reorganization Plan No. 1, or Executive Order No. 12068 does Congress or the President make plain their intention to impose new requirements on the Attorney General in bringing an action under Section 707(a). Congress or the President “might be expected to have mentioned a change” that would so significantly alter the obligations of the Attorney General under Title VII. See Watt, 451 U.S. at 271. The best reading of Reorganization Plan No. 1 and Executive Order No. 12068 is the approach taken by most courts to date, see, e.g., Lanning, 176 F.R.D. at 140, which have held that these two documents clarify that the Attorney General may bring pattern or practice lawsuits, but do not create additional requirements for the Attorney General in doing so.8 See also New Jersey, 473 F. Supp. at 1205 (reviewing
8 United States v. Fresno Unified Sch. Dist., 592 F.2d 1088, 1095-96 (9th Cir. 1979) remains the only case that cuts against this determination 35 years after that opinion was issued. Even still, the statement in Fresno that Congress intended to impose
14

legislative history and holding that following statutory amendment in 1972 and Reorganization Plan No. 1 in 1978, Attorney General was not required to follow prerequisites of Section 706); Baltimore Cnty., 1978 WL 93, at *4 (“The terms of the Reorganization Plan specify that the Attorney General should exercise his authority ‘in accordance with procedures consistent with said Title VII.’ The Attorney General is not under the law required to follow regulations promulgated by the Equal Employment Opportunity Commission which apply where a private employer is involved.”).
For the reasons stated above, the DOC’s Motion to Dismiss with respect to the Attorney General’s obligations to follow the prerequisites found in Section 706 of Title VII is denied.9
B. Section 707(a) and Statute of Limitations The statutory prerequisites found in Section 706 discussed above effectively limit the potential back-pay exposure faced by defendants in a Title VII lawsuit to two years from the filing of a charge with the EEOC. 42 U.S.C § 2000e-5(e)(3)(B). For
the requirements of Section 706 on the Attorney General in Section 707 is dicta. The Ninth Circuit in Fresno recognized that neither of the parties before it had addressed this issue and that the question was not properly before the court.
9 Still, if the Attorney General was obligated to satisfy these requirements, he did so by informing the DOC of the charges leveled against it first in September 2009 and more fully in November 2013, and then engaging in meaningful conciliation.
15

this and other reasons, the Supreme Court held that no statute of limitations applies to an action brought under Section 706. Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 367-72 (1977). Section 707(a) has no similar prerequisites, and this distinguishes the present case from Occidental. It is at least arguable that some statute of limitations or damage limitation should be applied to an action brought by the Attorney General, which might result in individuals receiving back pay. Otherwise, the Attorney General could wait for many years to initiate a lawsuit, and then demand a vast back pay award for putative victims of discrimination – a result that would be both unfair to the state defendant, and virtually impossible to administer.
The DOC argues that the Attorney General must be subject to a statute of limitations when pursuing back pay for individuals, citing authority from the Fifth Circuit Court of Appeals that is now more than 40 years old. See United States v. Georgia Power Co., 474 F.2d 906, 919 (5th Cir. 1973).10 The DOC proposes that
10 The DOC’s argument that a statute of limitations should apply has logical appeal. If no limitation period applies, a defendant in a Section 707(a) case could face back pay liability limited only by the passage of Title VII in 1964, whereas a defendant to a lawsuit brought under Section 706 or Section 707(e) would face liability for only two years from the filing of a charge. Such a dynamic appears untenable. On the other hand, Section 707(a) contemplates lawsuits based on a “pattern or practice.” Patterns or practices are not discrete events and
16

the Rhode Island statute of limitations for actions brought against the state apply to this case. However, for the reasons that follow, the Court agrees with the Attorney General that subsequent precedent has eroded the force of Georgia Power. As a result, the DOC’s Motion to Dismiss with respect to its statute of limitations issue is denied.
Still, the Court has reservations about this outcome. These concerns are dissipated in part by the DOJ’s statement during oral argument that it will only pursue back pay from September 2007 onward. Additionally, when the DOC submits its Answer to the Complaint, the DOC could raise laches as a defense in an attempt to further limit damages. See Marshall v. Intermountain Elec. Co., 614 F.2d 260, 261-62 (10th Cir. 1980).
Under Section 707(a), the Attorney General may request “such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure full enjoyment of the rights herein described.” Courts have understood this provision to confer upon the Attorney General the right to obtain back pay for aggrieved individuals. Georgia Power, 474 F.2d at 919 (discussing legislative history of Title VII, which indicates
only come into focus through time, suggesting a hard and fast limitation period may well be contrary to the will of Congress.
17

desire to permit Attorney General to pursue back pay); see also Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 360-62 (1977) (discussing ability of Government to pursue individual relief in Title VII lawsuit).
Long-standing precedent establishes that the United States Government need not adhere to any statute of limitation when enforcing sovereign rights, unless Congress has expressly created a time limit. See Guar. Trust Co. of N.Y. v. United States, 304 U.S. 126, 132-33 (1938) (explaining that rule exempting Government from statute of limitations “appears to be a vestigial survival of the prerogative of the Crown” but may not be justified “because its benefit and advantage extend to every citizen, including the defendant, whose plea of laches or limitation it precludes; and its uniform survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king.”) This proposition, however, does not apply when the Government enforces private rights. Marshall, 614 F.2d at 262. Thus, the question here is whether pursuit of back pay constitutes a public or private right under Section 707(a).
The case most on point with respect to this issue is Georgia Power. There, the Fifth Circuit Court of Appeals held that when the Attorney General brings a lawsuit for back pay
18

under Section 707(a) the federal district court should “borrow the limitations period prescribed by the state where the court sits.” Georgia Power, 474 F.2d at 923 (internal citation and quotation marks omitted); see also Masonry Contractors Ass’n, 497 F.2d at 877 (adopting Georgia Power’s holding that applicable state statute of limitation should apply, but finding that defendant had failed to raise statute of limitations as a defense). The court in Georgia Power reasoned that when a pattern or practice lawsuit acts as a “legal conduit for the recovery of sums due individual citizens rather than the treasury, it is a private and not a public action” and is therefore subject to a statute of limitations. Georgia Power, 474 F. 2d at 923.
The Attorney General argues that two United States Supreme Court cases issued after Georgia Power and Masonry Contractors Association render those decisions inapplicable because these more recent cases establish that, even when pursuing individual benefits in a Title VII case, the Government acts within its sovereign capacity. See EEOC v. Waffle House, Inc., 534 U.S. 279, 287-88 (2002); Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 326 (1980). In General Telephone, the Supreme Court held that “[w]hen the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.”
19

446 U.S. at 326. The Court reasoned that the 180 day exclusive jurisdiction possessed by the EEOC under Section 706 established that the agency was not serving merely as a proxy for bringing these actions. Id. at 323. In Waffle House, while addressing an unrelated issue, the Supreme Court reaffirmed its position that the EEOC did not merely serve as a proxy in bringing actions under Title VII. Waffle House, 534 U.S. at 288. The Government argues, with a great deal of persuasion, that when bringing a Section 707(a) action the Attorney General similarly acts for the benefit of individuals while vindicating the public interest. Waffle House and General Telephone are obviously not directly on point; both involved the EEOC, not the Attorney General, and as discussed above there are differences. But these differences do nothing to lessen the larger point made by the Supreme Court in these cases – indeed, the interest of the public may be even more central to an action brought by the federal government against a state agency such as the DOC.
Without relying on General Telephone or Waffle House, the district court in City of Yonkers reached the conclusion the Attorney General champions. City of Yonkers, 592 F. Supp. at 589. There the district court exhaustively analyzed the history of Section 707(a) and found that because Title VII vindicates a broad public interest, a statute of limitation should not apply. Id. at 588. The Court reasoned: “Though the relief sought may
20

include back pay for specific individuals or a class, the pattern-or-practice action is decidedly not ‘a case where the Government, although a nominal complainant party, has no real interest in the litigation, but has allowed its name to be used therein for the sole benefit of a private person.’” Id. (quoting United States v. Beebe, 127 U.S. 338, 344 (1888)); see also Franks v. Bowman Transp. Co., 424 U.S. 747, 778 n.40 (1976) (stating that claims brought “under Title VII involve the vindication of a major public interest”).
City of Yonkers is forceful precedent and it is buttressed by the Supreme Court holdings in General Telephone and Waffle House. But the question of how the holding of Georgia Power and the rationale of Masonry Contractors Association is affected by these two cases appears to be an open question, not directly addressed to date by any court.11 Thus, it is useful for the Court to look to other federal statutes that potentially confer both public and private benefits for guidance.
11 City of Yonkers conducted a similar inquiry but did not rely on General Telephone and did not have the benefit of Waffle House. Additionally, when the Ninth Circuit Court of Appeals heard EEOC v. Occidental Life Insurance Co. of Cal., that court rejected the holding of Georgia Power, relying instead on Fifth Circuit Court of Appeals precedent concerning the National Labor Relations Act, which held that no statute of limitations applies pursuant to that law even when pursuing back pay. EEOC v. Occidental Life Ins. Co. of Cal., 535 F.2d 533, 538 (9th Cir. 1976), aff'd, 432 U.S. 355 (1977).
21

Two examples shine through. First, as discussed by the Ninth Circuit in Occidental, when pursing back pay under the National Labor Relations Act the Government is not subject to a statute of limitations. Nabors v. NLRB, 323 F.2d 686, 688-89 (5th Cir. 1963) (holding that NLRB acts in public capacity and “[t]he fact that these proceedings operate to confer an incidental benefit on private persons does not detract from this public purpose”). The Occupational Safety and Health Act of 1970 also provides a mechanism by which an arm of the federal government, the Secretary of Labor, may secure monetary benefits for individuals through litigation. See Marshall, 614 F.2d at 261-62. The Tenth Circuit Court of Appeals held that because these actions implicate both public and private rights, no state statute of limitation should apply. Id. at 263. The Tenth Circuit held, however, that in “hybrid” actions where the Government vindicates both of those kinds of rights, “the doctrine of laches may be applied . . . to limit relief.” Id.
After reviewing the history of Title VII in general and Section 707(a) in particular, analyzing the caselaw decided under Title VII, and reviewing caselaw from analogous federal statutes, the Court finds that no statute of limitation should apply to the Attorney General in this case, even though he seeks both an injunction and back pay for individuals. The potential unfairness of this situation suggests some middle ground may be
22

appropriate. The Court finds merit in the compromise found by the Tenth Circuit in Marshall.
Here, the Attorney General vindicates sovereign rights by obtaining an injunction precluding the public employer from discriminatory employment actions. He vindicates public and private rights in obtaining individual back pay. Therefore, the DOC is not prohibited from seeking to limit damages further by the application of laches at a later stage in this case.12 For now, however, the Attorney General is subject to no statute of limitations, but will be held to its representation to the Court at oral argument that he will only pursue back pay from September 2007 onward. III. Conclusion
For the reasons set forth above, Defendant’s Motion to Dismiss is DENIED. IT IS SO ORDERED.
William E. Smith Chief Judge Date: January 29, 2015
12 The Supreme Court noted in Occidental that “when a Title VII defendant is in fact prejudiced by a private plaintiff's unexcused conduct of a particular case, the trial court may restrict or even deny [back pay] relief . . . . The same discretionary power to locate a just result in light of the circumstances peculiar to the case, can also be exercised when the EEOC is the plaintiff.” Occidental 432 U.S. at 373 (internal citations and quotation marks omitted).
23

 
 Case 1:14-cv-00078-WES-LDA Document 99 Filed 05/11/18 Page 1 of 8 PageID #: 1879

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

___________________________________

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

) C.A. No. 14-78 WES

)

v.

)

)

)

STATE OF RHODE ISLAND; RHODE

)

ISLAND DEPARTMENT OF CORRECTIONS, )

)

)

Defendants.

)

___________________________________)

ORDER

WILLIAM E. SMITH, Chief Judge.

Magistrate Judge Lincoln D. Almond filed a Report and

Recommendation (“R&R”) (ECF No. 88) in this case, recommending the

Court overrule all objections to the terms of the proposed settlement

agreement and grant the parties’ Joint Motion for Final Approval of

the Settlement Agreement (ECF No. 85). Prospective claimant Jayson

Badillo has objected (ECF No. 93) to the R&R. For the following

reasons, the Court accepts the R&R over Badillo’s objection.

The United States brought this action against Rhode Island,

challenging aspects of the hiring process the state used to select

entry-level correctional officers. The United States alleged that

the at-issue processes had a disparate impact on minority candidates,

in violation of Title VII. After extensive discovery, some motion

practice, and one failed settlement conference, the parties reached

a settlement after Magistrate Judge Almond held a second conference.

Case 1:14-cv-00078-WES-LDA Document 99 Filed 05/11/18 Page 2 of 8 PageID #: 1880
The settlement agreement presented to the Court requires Rhode Island to implement a hiring process that complies with Title VII, to hire up to thirty-seven prospective claimants, and to provide monetary relief of $450,000 to be distributed pro rata. (See ECF No. 80-1.)
Badillo objects that the proposed settlement is substantively inadequate and the product of unfair procedure. The Court reviews Magistrate Judge Almond’s recommended disposition de novo, Fed. R. Civ. P. 72(b)(3), and decides whether the settlement is “fair, reasonable, and adequate,” Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 10 (1st Cir. 2011) (quotation marks omitted), even if not “the settlement . . . which the court itself might have fashioned, or considers as ideal,” United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir. 1990). In so doing, the Court “must exercise some deference to the [United States]’s determination that settlement is appropriate . . . and refrain from second-guessing the Executive Branch.” Conservation Law Found. of New England, Inc. v. Franklin, 989 F.2d 54, 58 (1st Cir. 1993) (citation and quotation marks omitted). The Court is also mindful of “the policy of the law to encourage settlements,” especially where, as here, “a government actor committed to the protection of the public interest has pulled the laboring oar in constructing the proposed settlement.” Cannons Eng’g, 899 F.2d at 84.
After close review of the proposed settlement, hearing transcript, and the relevant submissions, the Court concludes that the settlement is fair, reasonable, and adequate. As the parties
2

Case 1:14-cv-00078-WES-LDA Document 99 Filed 05/11/18 Page 3 of 8 PageID #: 1881
point out, Badillo objects to a different case. For example, he cites myriad authority concerning the propriety of relief provided after a finding as to liability. See, e.g., Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 140-41 (2d Cir. 2012); Anderson v. Brennan, 254 F. Supp. 3d 253, 255-56 (D. Mass. 2017); United States v. R.I. Dep’t of Emp’t Sec., 619 F. Supp. 509, 511 (D.R.I. 1985). Here, there is no such finding. The parties stipulated to the plaintiff’s prima facie case, but did not do so as to the rest of plaintiff’s disparateimpact claim. See Jones v. City of Bos., 752 F.3d 38, 54 (1st Cir. 2014) (“Once a plaintiff has made a prima facie showing of a disparate impact, the burden shifts to the employer to show that the challenged practice is job related for the position in question and consistent with business necessity. If the employer makes such a showing, a plaintiff has one final path to success, by proving the existence of an alternative employment practice . . . .” (citation and quotation marks omitted)). On the contrary, the parties aggressively litigated these issues. Unlike the cases Badillo cites, the merits remained unresolved while the parties negotiated a settlement. Entirely inappropriate, then, is a comparison between what a plaintiff without a favorable liability judgment negotiated and what plaintiffs who prevailed as to liability won in damages.
Badillo also cites cases involving only private parties. See, e.g., In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 336 (3d Cir. 2010); In re Wireless Tel. Fed. Cost Recovery Litig., 396 F.3d 922, 926 (8th Cir. 2005); Cotter v. Lyft, Inc., 176 F. Supp. 3d 930, 931
3

Case 1:14-cv-00078-WES-LDA Document 99 Filed 05/11/18 Page 4 of 8 PageID #: 1882
(N.D. Cal. 2016). These cases are inapposite insofar as any settlement reached is afforded less deference than the one here, where a government plaintiff has done the negotiating.
Badillo highlights Ross v. Lockheed Martin Corp., 267 F. Supp. 3d 174 (D.D.C. 2017), as a case the Court should use to guide its determination of the proposed settlement’s fairness. Ross is of little help, however. In that case, the court rejected a proposed agreement to settle a disparate-impact claim brought by a current and former employee of Lockheed Martin against the company. Id. at 179-80. But there, the negotiated settlement contemplated that plaintiffs (and those in their proposed class) would “release a broad swath of potential legal claims against the company, including claims that ha[d] nothing whatsoever to do with [the employment practice at issue].” Id. at 179. The Ross settlement also punished class members who failed to respond to the class notice. Id. at 202. A nonrespondent would “release all of [her] race discrimination claims against Lockheed Martin[, and would] also become ineligible to recover any compensation from the settlement fund.” Id. (emphasis omitted). In short, the similarities between Ross and this case begin and end with the fact that, in both, plaintiffs bring disparateimpact claims.
Badillo also complains about Magistrate Judge Almond holding the fairness hearing when he had previously held the settlement conference from which the agreement sprang. Badillo again cites inapposite cases – where, for example, a judge recused himself
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because his prior involvement in the parties’ settlement negotiations turned him into a potential fact witness on a subsequent motion, Decker v. GE Healthcare Inc., 770 F.3d 378, 390 (6th Cir. 2014), or where a judge was to try a case he worked to settle, Becker v. Tidewater, Inc., 405 F.3d 257, 260 (5th Cir. 2005).
Here, Magistrate Judge Almond is not at risk of being called as a fact witness. Nor is he in line to try this case. Indeed, he is not even disposing of it, but rather providing this Court a recommended disposition. Nothing in the record suggests that Magistrate Judge Almond did other than hear, carefully consider, and, ultimately, overrule the objections made to the settlement agreement.
The Court ACCEPTS Magistrate Judge Almond’s R&R for the foregoing reasons. Objections to the settlement agreement are hereby overruled, and the parties’ Joint Motion for Final Approval of Settlement Agreement (ECF No. 85) GRANTED. IT IS SO ORDERED.
William E. Smith Chief Judge Date: May 11, 2018
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Case 1:14-cv-00078-WES-LDA Document 99 Filed 05/11/18 Page 6 of 8 PageID #: 1884

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA

:

:

v.

:

C.A. No. 14-0078-WES

:

STATE OF RHODE ISLAND,

:

DEPARTMENT OF CORRECTIONS

:

REPORT AND RECOMMENDATION Lincoln D. Almond, United States Magistrate Judge

Pending before me for a report and recommendation (28 U.S.C. § 636(b)(1)(B)) is the parties’ Joint Motion for Final Approval of Settlement Agreement. (ECF Doc. No. 85). Pursuant to the Court’s Provisional Order of Entry dated October 20, 2017, a Fairness Hearing on the Settlement Agreement was held on February 7, 2018. (ECF Doc. No. 82). A total of fifty-five Objections were received by the parties and communicated to the Court. However, only six (one anonymous) raise any substantive objection to the Final Settlement Agreement. The remainder all reasonable appear to be potential claimants expressing an interest in relief under the Final Settlement Agreement who have misunderstood the purpose of the Objection Form and process. At the hearing, two individuals spoke in favor of the Proposed Settlement. Only one objector (through counsel) appeared and addressed the Court.
Discussion The pending Motion for Final Approval requires the Court to determine whether the proposed settlement agreement is lawful, fair, reasonable, adequate and consistent with the public interest. See Hutchinson v. Patrick, 636 F.3d 1, 10 (1st Cir. 2011); Voss v. Rolland, 592 F.3d 242, 251 (1st Cir. 2010). Here, the parties have given reasonable notice to potential

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objectors and, as noted, several Objections have been presented to the Court. After fully and thoroughly reviewing the Final Settlement Agreement and the Objections, I conclude that the terms of the Settlement Agreement (ECF Doc. No. 80-1) are lawful, fair, reasonable, adequate and serve the public interest. Accordingly, I recommend that Chief Judge William E. Smith enter the parties’ proposed Order GRANTING the Joint Motion for Final Approval of the Settlement Agreement (see ECF Doc. 85-2) after reviewing this recommendation, the Settlement Agreement, the relevant docket entries and the transcript of the Fairness Hearing.
As the Court knows, this has been a hotly-contested lawsuit with experienced and competent attorneys on both sides of the case. While it is undisputed that there was a statistically significant disparity in pass rates between African American/Hispanic and white applicants for the pre-hire examinations in issue, the Court has not made any finding that such examinations violated Title VII. The State of Rhode Island maintains its position that there is no Title VII liability since the examinations are job-related and consistent with business necessity. The State of Rhode Island also maintains its position that the United States unduly delayed its prosecution of this lawsuit and that, even if Title VII liability were found, the Court should apply the equitable doctrine of laches to limit potential monetary damages. As the Court knows from the Motion for Provisional Entry, the Proposed Settlement is multi-faceted. It includes injunctive relief aimed at remedying any legal deficiencies in the hiring process. It includes monetary relief fund directed generally to unsuccessful applicants. Finally, it includes a preferential hiring process which includes noncompetitive retroactive seniority. Although the Proposed Settlement falls short of providing complete, make-whole relief to each potential claimant, it is a reasonable arm’s-length compromise reached by government actors seeking to further the public interest. See Conservation Law Found. v. Franklin, 989 F.2d 54, 58 (1st Cir. 1993) (holding that where a
-2-

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governmental agency has committed itself to a consent decree, the Court “must exercise some deference” to the agency’s determination that settlement is appropriate). As to the particular Objections raised to the Settlement, I recommend that they each be overruled for the reasons I articulated on the record during the Fairness Hearing as well as for the reasons articulated by the parties at the hearing and in their filings.
Conclusion For the foregoing reasons, I recommend that Chief Judge William E. Smith overrule all of the objections and GRANT the parties’ Joint Motion for Final Approval of Settlement Agreement (ECF Doc. No. 85) by ENTERING the proposed ORDER (ECF Doc. No. 85-2) presented by the parties. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of the Court within fourteen days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72. Failure to file specific objections in a timely manner constitutes waiver of the right to review by the District Court and the right to appeal the District Court’s decision. See United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).
/s/ Lincoln D. Almond LINCOLN D. ALMOND United States Magistrate Judge February 8, 2018
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 Case 1:14-cv-00078-WES-LDA Document 80-1 Filed 09/18/17 Page 1 of 48 PageID #: 1142

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF RHODE ISLAND, RHODE ISLAND DEPARTMENT OF CORRECTIONS,
Defendants.

)

)

)

)

)

Civil Action No.: 1:14-cv-78S

)

)

)

)

)

)

SETTLEMENT AGREEMENT

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TABLE OF CONTENTS
I. BACKGROUND AND STIPULATIONS..............................................................1 A. Correctional Officer Selection Process .................................................................2 B. Written and Video Exams .....................................................................................2
II. DEFINITIONS .........................................................................................................4
III. PURPOSES OF THE SETTLEMENT AGREEMENT .......................................6
IV. FAIRNESS HEARING ON THE TERMS OF THE SETTLEMENT AGREEMENT.............................................................................7 A. Provisional Entry of this Agreement.....................................................................7 B. Claims Administrator ............................................................................................7 C. Notice of Settlement to Applicants .......................................................................8 D. Notice of Settlement to Other Interested Parties...................................................9 E. Objections to Entry of the Settlement Agreement.................................................11 F. Final Entry of the Settlement Agreement ..............................................................12
V. GENERAL INJUNCTIVE RELIEF ......................................................................13 A. Injunctions.............................................................................................................13 B. Settlement Agreement Compliance Officer ..........................................................13 C. Interim Selection Process ......................................................................................14 D. Development and Use of Lawful Selection Devices ............................................14
VI. INDIVIDUAL RELIEF ...........................................................................................16 A. Two Forms of Individual Relief............................................................................16 B. Institution of the Settlement Fund .........................................................................17 C. Notice of Entry of Settlement Agreement to Applicants ......................................17 D. Submission of Interest-in-Relief Forms by Potentially Eligible Applicants.........18 E. Determination of Claimants’ Eligibility for Individual Relief ..............................19 F. Monetary Relief .....................................................................................................20 G. Priority Hiring Relief ............................................................................................20 H. Proposed Individual Relief Award Lists ...............................................................20
VII. FAIRNESS HEARING ON INDIVIDUAL RELIEF ...........................................21 A. Filing of Proposed Individual Relief Awards Lists with the Court ......................21 B. Fairness Hearing on Individual Relief ..................................................................22 C. Notice of Preliminary Eligibility Determinations to Claimants............................22 D. Objecting to Individual Relief Determinations .....................................................23 E. Filing Objections to Individual Relief ...................................................................24 F. Amendment to Preliminary Individual Relief Awards Lists .................................24 G. Approval of Final Individual Relief Awards Lists................................................25
VIII. EXECUTION OF INDIVIDUAL RELIEF ...........................................................25 A. Notice of Individual Relief Awards and Acceptance and Release .......................25

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B. Deposit into the Settlement Fund ..........................................................................26 C. Acceptance of Individual Relief............................................................................26 D. Issuance of Monetary Award Checks by State .....................................................29 E. Priority Hiring Relief.............................................................................................31
i. Priority Hiring Relief Awarded to Eligible Claimants Identified in Paragraph 91.a.............................................................................................33 a. Selection Process............................................................................33 b. Offer of Priority Hire .....................................................................34 c. State’s Reports to the United States on Claimants Hired...............35
ii. Priority Hiring Relief Awarded to Incumbent Correctional Officers Pursuant to Paragraph 91.b ........................................................................36
iii. Retroactive Pension Benefits....................................................................36
IX. RECORD KEEPING AND COMPLIANCE MONITORING ...........................39
X. DISPUTE RESOLUTION.......................................................................................41
XI. DURATION OF THE SETTLEMENT AGREEMENT ......................................41
XII. COSTS AND FEES..................................................................................................42
XIII. MISCELLANEOUS ................................................................................................42

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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 Filing a Claim to be Considered for Monetary Relief or Priority Hiring Consideration, 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 Determination of Individual Relief Form
Notice of Individual Relief Award
Acceptance of Individual Relief Award and Release of Claims Form

Case 1:14-cv-00078-WES-LDA Document 80-1 Filed 09/18/17 Page 5 of 48 PageID #: 1146
I. BACKGROUND AND STIPULATIONS This action was brought by Plaintiff United States of America (“United States”) against
Defendants State of Rhode Island and the Rhode Island Department of Corrections (“Rhode Island,” “the State,” or “RIDOC”) (collectively, “Parties”) under 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. §§ 1343(a)(3) & 1345.
In its Complaint, filed in February 2014, the United States alleged that the State has used selection procedures that resulted in disparate impact on African Americans and Hispanics, in violation of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k). Specifically, the Complaint alleged that the State’s use of a written exam and a video exam had an adverse impact upon African American and Hispanic applicants for the entry-level correctional officer position. The United States further alleged that these practices have not been shown to be sufficiently job related for the position of correctional officer or consistent with business necessity. The United States has never alleged intentional discrimination in this case, whether in its Complaint or in any subsequent filing. The State denies that it has violated Title VII.
Nevertheless, the United States and the State, 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 State further agree to the entry of this Agreement as final and binding between themselves as to the issues raised in the United States’ Complaint in this action.
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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, and
which the Court finds:1
A. Correctional Officer Selection Process
• Since 2000, the State has used a multi-step selection process to hire entry-level correctional officers. Early in the selection process, the State administered both a written exam and a video exam on a single day to all interested applicants. The State used one version of the written exam (the “initial written exam”) from January 2000 through June 2004 and a modified version of that written exam (the “revised written exam”) from June 2006 to the present. The video exam has been administered since 2000 (the “video exam”). Those applicants who failed either exam were removed from further consideration.
• Those who passed both the initial or revised written exam and the video exam were required to pass a criminal records check, a physical ability test (starting in 2007), a background investigation, a final interview, a psychological assessment, and a medical screen, including drug testing. Those applicants who passed all of those steps were placed on an eligibility list in descending rank order based on their score on the video exam. Only the State’s use of the initial and revised written exams, as well as the State’s use of the video exam, are at issue in this lawsuit.
B. Written and Video Exams
• For the initial written exam, applicants were required to achieve a total score of at least 70% (64 out of 91 questions) to pass. Generally, for the revised written exam, applicants were required to achieve a total score of at least 70% (57 out of 82 questions) to pass. For the video exam, applicants were required to achieve a total score of at least 79.5% (330 out of 415 possible points) to pass.
• There were three administrations of the initial written exam between January 2000 and June 2004 (in 2000, 2001, and 2004). The disparity in pass rates among African American and white applicants across the three administrations combined is statistically significant. The disparity in pass rates among Hispanic and white applicants across the three exam administrations combined also is statistically significant.
• There were six administrations of the revised written exam between June 2006 and November 2013 (in 2006, 2007, 2008, 2009, 2011, and 2013). The disparity in pass rates among African American and white applicants across the six administrations combined is
1 The facts are based on the United States’ Complaint (Dkt. 1), the State’s Answer (Dkt. 23), the State’s responses to the United States’ discovery requests, and the declarations of the United States’ experts, which are attached to the memorandum in support of the Parties’ joint motion for provisional entry of this Agreement.
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statistically significant. The disparity in pass rates among Hispanic and white applicants across the six exam administrations combined also is statistically significant.
• There were nine administrations of the video exam between January 2000 and November 2013. The disparity in pass rates among African American and white applicants across the nine administrations combined is statistically significant. The disparity in pass rates among Hispanic and white applicants across the nine exam administrations combined also is statistically significant.
• The United States estimates that an additional 52 African American applicants and an additional 55 Hispanic applicants would have been hired by the State as correctional officers from the nine combined test administrations at issue absent the disparate impact of the pass/fail use of the initial and revised written exams and the video exam.
• The United States contends that the State’s use of the initial and revised written exams, as well as the use of the video exam, from January 2000 to November 2013 has not been shown to be job related and consistent with business necessity. The United States also contends that alternative selection devices exist to select candidates for correctional officer positions that would have served the State’s legitimate needs and that would have had less disparate impact against African American and Hispanic applicants. The State does not admit to liability under Title VII, and the parties disagree as to whether the United States’ evidence as to the issues of job relatedness and business necessity and alternative employment practices is sufficient to establish liability under Title VII.
• The relief provided by this Agreement does not exceed make-whole relief to individuals who would otherwise have been hired as entry-level correctional officers 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, reasonable, equitable, and otherwise consistent with federal law.
• The retroactive seniority awarded to eligible Claimants under this Agreement does not exceed the noncompetitive seniority lost by African American and Hispanic applicants from 2000 to 2013 as a result of the State’s pass/fail use of the written and video exams.
• Priority hiring and awards of retroactive seniority under this Agreement are remedial relief for identified individuals based on their status as persons affected by the practices challenged by the United States.
In resolution of this action, with the settlement of the Parties, IT IS THEREFORE OR-
DERED, ADJUDGED, AND AGREED as follows:
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II. DEFINITIONS 1. “Monetary relief” means a monetary award based on the United States’ calculation of some of the lost wages that the United States alleges would have accrued to those persons who would have been hired into the position of correctional officer but for the disparate impact of the written or revised written exam or the video exam. 2. “Claimant” refers to any African American or Hispanic person who submits an Interestin-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. “Entry of the Agreement” means the date on which the Court enters the Agreement as final in an 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: a. Monetary relief; and/or b. Priority hiring relief in the form of a correctional officer position for qualified candidates with noncompetitive retroactive seniority. 6. The “Parties” to this Agreement are the United States, by the Department of Justice, and the State of Rhode Island and the Rhode Island Department of Corrections. 7. “Initial written exam” means the 91-question written test used by RIDOC to screen applicants for the correctional officer position from January 2000 to June 2004. 8. “Revised written exam” means the 82-question written test used by RIDOC to screen applicants for the correctional officer position from June 2006 to November 2013.
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9. “Video exam” means the 83-question video test used by RIDOC to screen applicants for the correctional officer position from January 2000 to November 2013.
10. “Priority hire” means a Claimant who is qualified and eligible for priority hiring relief and is either: a. Hired by RIDOC as a correctional officer and, upon beginning academy training, is credited by the State with noncompetitive retroactive seniority corresponding with the Claimant’s retroactive seniority date, as set forth in Paragraph 91.a; or b. A current RIDOC correctional officer who is credited by the State with noncompetitive retroactive seniority corresponding with the Claimant’s retroactive seniority date, as set forth in Paragraph 91.b.
11. “Correctional officer” means a person hired to a correctional officer position by RIDOC, regardless of whether the person may also be called by another title while undergoing academy training or until the person has completed the probationary period applicable to all entry-level RIDOC correctional officers.
12. “Noncompetitive retroactive seniority” refers to seniority credit in the correctional officer position that a Claimant who receives priority hiring relief is entitled to receive. a. Noncompetitive retroactive seniority is comprised of seniority for purposes of calculating an individual’s salary or other pay, certain pension benefits, and future accrual of leave, including the amount of an individual’s available vacation, personal, and sick leave, as well as any other purposes for which seniority is used to determine the amount of or eligibility for employee benefits.
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b. Noncompetitive retroactive seniority does not include seniority used for any purpose in which an incumbent competes with other incumbents for, among other things, transfers/filling of internal vacancies (such as shifts, posts, jobs, and locations), scheduling of leave (to include personal, vacation, and holiday leave), layoffs/reductions in work force, recall from layoffs/reductions in work force, or to satisfy any applicable probationary periods or any time-in-grade requirements associated with promotion eligibility.
c. An award of noncompetitive retroactive seniority shall correspond to the graduation date of the first academy class that the Claimant would have entered if he or she had not been disqualified by the written or video exam (“retroactive seniority date”), except that pension benefits will be awarded in the amounts described in Paragraphs 102 to 105.
13. “Selection device” means any examination, test, requirement, or other criterion used to evaluate an applicant’s qualifications for hire as a correctional officer (e.g., written examination, video examination, physical ability test or physical fitness test, background examination, final interview, psychological examination, physical examination, or drug test).
III. PURPOSES OF THE SETTLEMENT AGREEMENT 14. The purposes of this Agreement are to ensure that: a. The State develops and uses testing and selection procedures that, while ensuring the hiring of qualified correctional officer candidates, do not unnecessarily exclude qualified African American and Hispanic applicants, in accordance with Title VII; and
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b. The State provides, as appropriate, monetary relief and/or priority hiring relief with noncompetitive retroactive seniority to qualified persons who, the United States alleges, were not afforded further consideration for employment as entrylevel correctional officers with RIDOC, due to the employment practices 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, the Parties shall promptly file a joint motion for the provisional approval and entry of the Agreement by the District Court and request a Fairness Hearing on the Terms of the Settlement Agreement to allow the Court to determine whether the terms of the Agreement are fair, reasonable, and adequate; and not illegal, a product of collusion, or against the public interest. The Parties will request that the Court provide notice at least one hundred (100) days before the date and time set for a Fairness Hearing on the Terms of the Settlement Agreement.
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. For the purpose of compromising the claims underlying this case only, the United
States agrees to enter a contract with a Claims Administrator to assist the Parties with
7

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the notice and claims procedure for individual relief. By agreement of the Parties, limited to the facts underlying the settlement of this case only, the United States shall bear all costs and expenses of the Claims Administrator. 18. The Claims Administrator’s contract with the United States will require the Claims Administrator to work under the control and supervision of the Parties in the conduct of its activities, including reporting regularly to and providing all reasonably requested information to the Parties. In the event that the United States or Rhode Island has reason to believe that the Claims Administrator is not materially complying with the terms of the contract with the United States, the United States and Rhode Island will meet and confer to find a mutually agreeable course of action to address the Claims Administrator’s material compliance with its contract with the United States. In the event that the United States and Rhode Island are unable to agree upon a course of action to address the Claims Administrator’s material compliance with its contract with the United States, the Parties may present the matter to the Court pursuant to the dispute resolution provisions set forth in Paragraph 110 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 State shall provide to the Claims Administrator and the United States the last-known mailing address and e-mail address of each applicant who identified as African American or Hispanic when applying for any of the State’s selection processes for entry-level correctional officers and who failed the initial written exam, the revised written exam, or the video exam between 2000 and 2013, or who failed the interim selection process as set forth in Paragraph 33 of this Agreement.
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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 within two (2) business days to the applicant.
D. Notice of Settlement to Other Interested Parties 22. No later than eighty (80) days prior to the Fairness Hearing on the Terms of the Settle-
ment Agreement, the State shall provide a copy of the Notice Documents described in Paragraph 20 in the formats set forth in Appendix A, to:
a. Each correctional officer currently employed by RIDOC, 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
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b. The Rhode Island Brotherhood of Correctional Officers and any other union or association recognized as being authorized to represent correctional officers at RIDOC, via U.S. mail.
23. The State shall publish a notice of the Settlement and the Fairness Hearing, in a form substantially the same as contained in Appendix A, on the State’s website (www.ri.gov), RIDOC’s website, in the Providence Journal, and via social media (i.e., Facebook and/or Twitter) regularly used by the State and/or RIDOC. a. The published notice on the State’s website and RIDOC’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. 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 State shall publish a notice in the Providence Journal 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 State shall publish notice via social media as follows:
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i. The State shall post and not delete the post on the Rhode Island Department of Corrections’ Facebook page with the following text and a publicly-accessible link from which the Notice Documents and the Agreement can be accessed: “The State has entered into a Settlement Agreement with the U.S. Department of Justice to resolve a Department of Justice lawsuit alleging that RIDOC’s hiring practices had an unintentional disparate impact on African Americans and Hispanics. To learn more, visit: [link].”
ii. The State shall post and leave up a tweet on the State’s Twitter page and on the Rhode Island Department of Corrections’ Twitter page with the following text and a publicly-accessible link from which the Notice Documents and the Agreement can be accessed: “The State settled an unintentional disparate impact lawsuit with the Dept. of Justice @CivilRights involving RIDOC. Read more: [link].”
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 in accordance with the requirements set forth in Appendix A. a. Objections shall be submitted to the Claims Administrator 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 the District Court at the Fairness Hearing on the Terms of the Settlement Agreement.
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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.
25. By 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.
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 District Court copies of all objections received by the Claims Administrator; and b. The United States and the State 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 District Court shall 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, reasonable, and adequate.
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V. GENERAL INJUNCTIVE RELIEF A. Injunctions
28. Except as provided in Paragraphs 32-33 of this Agreement, the RIDOC, 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 the initial written, revised written, or video exams at issue in this case.
29. Except as provided in Paragraphs 32-33 of this Agreement, during the term of this Agreement, the RIDOC shall not administer any written exam or video exam for use in selecting correctional officers without the assent of the United States or, if the Parties cannot reach agreement, by the Court.
30. The State is enjoined from retaliating against or otherwise adversely affecting any person because he or she opposed the alleged discrimination at issue here, in any way participated in or cooperated with the investigation or litigation of the alleged discrimination at issue here, has been involved with the development or administration of this Agreement, or received relief under or otherwise benefited from this Agreement.
B. Settlement Agreement Compliance Officer 31. Within seven (7) days after entry of this Agreement, the State shall designate a person
who shall be the person primarily responsible for facilitating the implementation of the provisions of this Agreement. This person is to report on the commitments in the Agreement to ensure that it is fully implemented, and report to the United States any complaints of discrimination on the basis of national origin and/or race arising from the State’s use of the interim selection process pursuant to Paragraphs 32-33, or the State’s use of new hiring procedures pursuant to Paragraphs 34-39 during the period that this Agreement is in effect.
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C. Interim Selection Process 32. The Parties recognize that the proper development of new hiring procedures will take
time, and that the State’s immediate operational needs require the hiring of correctional officers before the development and implementation of new hiring procedures pursuant to Paragraphs 34-39 of this Agreement. 33. In order to address the State’s immediate operational needs while mitigating the potential adverse impact that would result from the use of the written exam and the video exam that gave rise to this action, the Parties agree that the State may use, on an interim basis, and for the purpose of hiring one class of candidates for the RIDOC training academy, the revised written exam with a passing score of 70% (57 out of 82 questions), and the video exam with a passing score of 70% (290 out of 415 possible points), to be otherwise scored and used in the same manner on a rank-ordered basis as the State heretofore has used the exams. D. Development and Use of Lawful Selection Devices 34. The State will adopt and use a new selection device or devices to hire correctional officers in place of the revised written exam and the video exam. 35. Subsequent to the entry of this Agreement, the State shall submit to the United States a proposal to use a new selection device or devices for hiring entry-level correctional officers in place of the revised written exam and the video exam. The new selection device(s) shall either have no statistically significant disparate impact on the basis of national origin or race, or shall have been demonstrated to be job related for the correctional officer position and consistent with business necessity in accordance with Title VII. In selecting or developing the new selection device(s), the State shall make reasonable efforts to explore the availability of selection devices that have been shown
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to reduce or eliminate disparate impact upon Hispanics and/or African Americans in processes for selecting correctional officers. 36. The proposal that the State submits pursuant to Paragraph 35 shall include all information available to the State about the development and/or validation of the proposed new selection device(s), which, for each selection device, may include: a description of the selection device and the manner in which the State intends to use it; the known or likely disparate impact upon African Americans and Hispanics of the intended use of the selection device, if any, including the known or likely disparate impact upon African Americans and Hispanics resulting from the passing scores proposed to be used by the State; all evidence of job relatedness or validity of the selection device, including all job analyses, test plans, expert reports, and validation studies, as well as data underlying such analyses, plans, reports, or studies; and any basis for a conclusion that the proposed use of the selection device (including proposed passing scores) is job related for the position and consistent with business necessity. The State’s submission shall also identify any other selection devices that the State considered. For the selection device(s) the State proposes and those alternative device(s) the State considered using, the State’s submission shall state any other manner of using the selection device(s) that the State considered. 37. Within ninety (90) days of receiving the proposal and information described in Paragraphs 35 and 36 from the State, the United States shall notify the State in writing whether it objects to the State’s proposed use of the new selection device(s) and provide the specific reasons for the objection; otherwise, the United States will provide its assent and the State may administer the selection device(s).
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38. Within thirty (30) days following the first administration of the State’s new selection device(s) and before forming an eligibility list based on any such selection devices, the State shall provide the following information to the United States: a list of all applicants taking the State’s new selection device(s), to include each applicant’s race and sex; and data indicating each candidate’s raw score(s) on the State’s new selection device(s), as well as the performance of each applicant on each item of the State’s new selection device(s). If the United States determines that the State’s use of any such selection device does not comply with Title VII and/or this Agreement, the United States shall notify the State in writing that the United States objects to the State’s continued use of the new selection device(s), and shall identify the specific reasons for any such objection.
39. If the United States objects pursuant to Paragraphs 37 or 38 to the State’s use of the new selection device(s), the parties shall within sixty (60) 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 the United States’ objection within sixty (60) days, the Parties may submit the dispute to the District Court in accordance with the dispute resolution provisions set forth in Paragraph 110 of this Agreement.
VI. INDIVIDUAL RELIEF A. Two Forms of Individual Relief
40. The State will provide individual relief to eligible Claimants in the form of monetary relief and/or priority hiring relief, including noncompetitive retroactive seniority.
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B. Institution of the Settlement Fund 41. No later than seven (7) business days after entry of this Agreement, the State shall
propose in writing to the United States the name of a federally insured financial institution for the deposit of $450,000 into an interest-bearing account (the “Settlement Fund”) from which monetary relief will be distributed to eligible Claimants pursuant to this Agreement. The United States shall provide a written response to the State’s proposal within seven (7) business days of its receipt, either consenting to the State’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. C. Notice of Entry of Settlement Agreement to Applicants 42. Within thirty (30) days after 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 Monetary 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 or Hispanic when applying for any of the State’s selection processes for entry-level correctional officers and who failed the initial written exam, the revised written exam, or the video exam between 2000 and 2013, or who failed the written exam administered as part of the interim selection process as set forth in Paragraph 33 of this Agreement.
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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. 43. 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. D. Submission of Interest-in-Relief Forms by Potentially Eligible Applicants 44. 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 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 and approved by the Court if the State objects to the United States’ determination. 45. 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 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. 46. No later than ten (10) days after the deadline for submission of Interest-in-Relief Forms to the Claims Administrator (eighty-five (85) days after entry of this Agreement), the Claims Administrator shall provide to the Parties copies of all Interest-in-Relief Forms received by the Claims Administrator. Interest-in-Relief Forms received by the Claims
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Administrator more than ten (10) days after the deadline for submission of claim forms will be provided to the Parties on a weekly rolling basis. E. Determination of Claimants’ Eligibility for Individual Relief 47. The United States and the State will confer regarding the process by which the Parties will determine whether a Claimant is eligible for individual relief under this Agreement. 48. A Claimant is eligible for monetary relief under this Agreement if: (i) the Claimant identified as African American or Hispanic when applying for any of the State’s selection processes for entry-level correctional officers; (ii) between January 2000 and 2013, the Claimant failed the initial or revised written exam, or the video exam, for a test administration that resulted in an eligibility list from which appointments were made; and (iii) the Claimant met the minimum qualifications for employment that existed at the time the Claimant was disqualified by failure of the initial written, revised written, or video exam. 49. A Claimant is eligible for priority hiring relief under this Agreement if the Claimant meets the current minimum qualifications for hire as a correctional officer with the Rhode Island Department of Corrections, and either (i) satisfies the criteria in Paragraph 48; or (ii) identified as African American or Hispanic when applying for the interim selection process as described in Paragraph 33 of this Agreement, who failed the revised written exam administered as part of the interim selection process, but passed the video examination administered as part of the interim selection process, and who met the minimum qualifications for employment that existed at the time the Claimant was disqualified by failure of the written exam administered as part of the interim selection process.
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F. Monetary Relief 50. The United States, in consultation with the State, shall determine the Claimants eligible
for a monetary award under Paragraph 48. In order to be eligible for monetary relief, a Claimant need not express an interest in, or be eligible for, priority hiring relief, or accept an offer of employment in the correctional officer position in the Rhode Island Department of Corrections. 51. The United States, in consultation with the State, shall determine each eligible Claimant’s monetary award from the Settlement Fund, such that awards are distributed among all eligible Claimants who sought monetary relief in a manner that is reasonable and equitable, considering when each Claimant was disqualified by the initial or revised written exam, or the video exam. G. Priority Hiring Relief 52. The United States, in consultation with the State, shall determine each Claimant’s eligibility to participate in the priority hiring selection process subject to Paragraph 49. Eligibility to participate in the priority hiring selection process does not ensure a Claimant will receive an offer of priority hire from the State. The State shall require any eligible Claimant seeking priority hiring relief to successfully complete the State’s correctional officer screening and selection procedures that are then in effect and required of all other correctional officer applicants. H. Proposed Individual Relief Awards Lists 53. No later than one hundred twenty (120) days after entry of this Agreement, the United States shall provide the State with:
a. A Proposed Monetary Awards List that identifies all Claimants it finds eligible for monetary relief based on the Interest-in-Relief Forms received by the Claims
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Administrator, as well as the amount of the award that the United States, in consultation with the State, has determined should be awarded to the Claimant; b. A Proposed Priority Hire Claimant List that identifies all Claimants it finds eligible to participate in the priority hiring selection process based on the Interestin-Relief Forms received by the Claims Administrator; and c. A list of Claimants who it finds ineligible for individual relief, which shall include the reason for the United States’ determination that a Claimant who sought monetary relief and/or priority hiring relief is not eligible for such relief. 54. No later than one hundred fifty (150) days after entry of this Agreement, the State shall notify the United States in writing if it objects to any of the United States’ determinations regarding eligibility for monetary relief and/or priority hiring relief. The parties shall attempt to resolve any objections submitted by the State to the United States’ determinations. VII. FAIRNESS HEARING ON INDIVIDUAL RELIEF A. Filing of Proposed Individual Relief Awards Lists with the Court 55. No later than one hundred eighty (180) days after entry of the Agreement, the United States shall file with the Court and serve upon the State the following Proposed Individual Relief Awards Lists: a. A Proposed Monetary Awards List stating, for each Claimant who timely returned an Interest-in-Relief Form and whom the United States has determined is eligible for monetary relief, the amount of monetary relief that the United States has determined should be awarded to the Claimant; and b. A Proposed Priority Hire Claimant List with Claimants who the United States has determined are eligible to pursue priority hiring relief.
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56. The Proposed Individual Relief Awards Lists shall identify each Claimant only by Claimant ID number.
B. Fairness Hearing on Individual Relief 57. Upon filing the Proposed Individual Relief Awards Lists, the United States shall sim-
ultaneously move the Court to hold a Fairness Hearing on Individual Relief to allow the Court to determine whether the Proposed Monetary Relief Awards List and Proposed Priority Hire Claimant List should be approved or amended. The Court will provide the Parties with at least ninety (90) days’ notice of the date and time set for the Fairness Hearing on Individual Relief. C. Notice of Preliminary Eligibility Determinations to Claimants 58. No later than eighty (80) 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, and the Claimant’s proposed monetary award as stated on the Proposed Monetary Awards List, if any; and
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b. A Cover Letter Regarding Individual Relief Determinations and Providing Notice of Fairness Hearing on Individual Relief, Instructions for Filing an Objection to Individual Relief, and an Objection Form, in the formats attached as Appendix C.
59. The Claims Administrator shall keep records of, and, if possible, shall re-send, all Notice of Individual Relief Fairness Hearing Documents returned as undeliverable by the same procedures described in Paragraph 21.
D. Objecting to Individual Relief Determinations 60. A Claimant who wishes to object to any determination regarding individual relief as
set out in his or her cover letter (Appendix C) must file a written objection in accordance with the requirements set forth in Appendix C.
a. Objections shall be submitted to the Claims Administrator and shall state the Claimant’s name, Claimant ID number, mailing address, telephone number, and e-mail address, if any; set forth a specific description of the Claimant’s basis for disputing the relief determinations in the Proposed Individual Relief Awards Lists; 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.
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61. By 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 copies of the objections it has received.
E. Filing Objections to Individual Relief 62. 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 objections received by the Claims Administrator. Prior to filing, the United States shall redact Claimant names, but not Claimant ID numbers. 63. 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. In the State’s filing, the State may also address its unresolved objections made pursuant to Paragraph 54 in response to the United States’ eligibility determinations made pursuant to Paragraph 50, 51, and 52. 64. No later than the day of the Fairness Hearing on Individual Relief, the State shall provide the Claims Administrator with any and all withholding tax forms that the State will require Claimants to complete, as well as a protocol outlining what information must be included 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 Lists 65. At or after the Fairness Hearing on Individual Relief, the District Court shall determine which, if any, objections to the Proposed Monetary Awards List or to the Proposed Priority Hire Claimant List are well-founded. The Court shall then approve the lists as
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submitted or, if the Court finds that any objections are well-founded, shall request that the Parties make any necessary adjustments to the lists consistent with such findings. 66. The Court will find that an objection to either the Proposed Monetary Awards List or the Proposed Priority Hire Candidate List, including an objection to the amount of monetary relief to be awarded to a Claimant, is well-founded only if the Court finds that the determination reflected in such list is not fair, reasonable, and adequate; or is otherwise inconsistent with the provisions of this Agreement or Title VII. G. Approval of Final Individual Relief Awards Lists 67. If the Court determines that the individual relief awards are fair, reasonable, and adequate, the Court shall approve the Monetary Awards List and the Priority Hire Claimant List as final (collectively, the “Final Individual Relief Awards Lists”) at or after the Fairness Hearing on Individual Relief. VIII. EXECUTION OF INDIVIDUAL RELIEF A. Notice of Individual Relief Awards and Acceptance and Release 68. No later than ten (10) days after the District Court approves the Final Individual Relief Awards Lists, 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. 69. 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
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relief, this form will include a statement of the Claimant’s eligibility for such relief and a description of the noncompetitive retroactive seniority the Claimant will receive upon receipt of priority hiring relief; and c. Any withholding tax forms necessary for the State to comply with its withholding obligations under law and Paragraph 82 of this Agreement. 70. The Claims Administrator shall keep records of, and, if possible, shall re-send, all notice documents described in Paragraph 69 that are returned as undeliverable by the same procedures described in Paragraph 21. B. Deposit into the Settlement Fund 71. No later than thirty-five (35) days before the distribution of the Individual Relief, the State shall deposit $450,000.00 into the Settlement Fund. 72. The Settlement Fund, including any interest accrued on the amount deposited by the State, shall be used to pay the monetary awards to eligible African American and Hispanic Claimants. C. Acceptance of Individual Relief 73. 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 forty (40) days after the Court approves the Final Individual Relief Awards List. 74. The submission date of each Acceptance of Individual Relief Award and Release of Claims Form shall be determined as described in Paragraph 45. 75. Within three (3) business days, or as soon as practicable, of the Claims Administrator’s receipt of an Acceptance of Individual Relief Award and Release of Claims Form and
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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.
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 protocol provided to the Claims Administrator by the State pursuant to Paragraph 64.
b. If the form is not fully executed, within three (3) business days, or as soon as practicable, the Claims Administrator shall notify the Claimant via mail, e-mail, and telephone that his/her form(s) was not fully executed.
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 78.
76. No later than forty-five (45) days after the Court approves the Final Individual Relief Awards Lists, 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 received from Claimants named in the Final Individual Relief Awards Lists.
77. No later than fifty-five (55) days after the Court approves the Final Individual Relief Awards Lists, 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-
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executed forms, as described in Paragraph 75, and which Claimants submitted forms that were not fully executed. 78. No later than seventy (70) days after the Court approves the Final Individual Relief Awards Lists, 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 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 three (3) 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. 79. No later than eighty (80) days after the Court approves the Final Individual Relief Awards Lists, 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. 80. No later than ninety-five (95) days after the Court approves the Final Individual Relief Awards Lists, the United States shall provide the State and the Claims Administrator with an Amended Final Monetary Awards List and an Amended Final Priority Hire Claimant List (collectively, “Amended Final Individual Relief Awards Lists”). The
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Amended Final Monetary Awards List will identify for each Claimant who timely returned fully-executed Acceptance of Individual Relief Award and Release of Claims Forms along with any applicable withholding tax forms, the amount of monetary award to be paid, taking into account when each Claimant was disqualified by the initial written, revised written, or video exam. The Amended Final Priority Hire Claimant List shall identify each Claimant who is eligible to pursue priority hiring relief and who timely returned fully-executed Acceptance of Individual Relief Award and Release of Claims Forms. D. Issuance of Monetary Award Checks by State 81. No later than one hundred twenty-five (125) days after entry of the Final Individual Relief Awards Lists, the Claims Administrator shall mail via certified U.S. mail (return receipt requested) a monetary award check to each Claimant listed on the Amended Final Monetary Awards List. The amount of the monetary award check shall be the amount shown for the Claimant on the Amended Final Monetary Awards List, less all appropriate taxes and other amounts withheld in accordance with Paragraph 82. 82. As directed by the State, the Claims Administrator shall withhold from each Claimant’s monetary award the employee portions of all appropriate federal, state, and local income taxes; the employee’s Medicare and FICA tax; and any other amounts that are required to be withheld by law. The Claims Administrator shall be responsible for remitting and reporting such employee-side withholdings to the appropriate taxing authorities. 83. The State shall be responsible for and remit to the appropriate taxing authorities the employer portion of all federal and state payroll taxes applicable on any monetary relief award paid to a Claimant, including employer contributions to Medicare and the Social
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Security fund. The employer portion of such taxes shall not be deducted from any Claimant’s monetary relief award, and such amounts shall not be payable from the Settlement Fund. 84. The Claims Administrator shall keep records of, and, if possible, shall re-send, all monetary award checks returned as undeliverable by the same procedures described in Paragraph 21. 85. No later than one hundred forty (140) days after entry of the Final Individual Relief Awards Lists, 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 monetary award check for taxes and other amounts required to be withheld by law, and the purpose of each such withholding. 86. No later than one hundred fifty-five (155) days after entry of the Final Individual Relief Awards Lists, the Claims Administrator shall provide to the Parties a list of all Claimants whose monetary award payments are still outstanding. The 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. 87. No later than one hundred sixty-five (165) days after entry of the Final Individual Relief Awards Lists, the Claims Administrator shall e-mail and mail a letter to all Claimants whose monetary award payments are still outstanding to inform such Claimants that
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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. 88. No later than three hundred fifteen (315) days after entry of the Final Individual Relief Awards Lists, the Claims Administrator shall provide the Parties with a list of all Claimants whose monetary award checks were returned as undeliverable and/or uncashed, as well as a statement of the amount of funds remaining in the Settlement Fund. 89. No later than three hundred twenty-five (325) days after entry of the Final Individual Relief Awards Lists, the United States shall inform the State and the Claims Administrator either that the remaining funds should be reallocated among the other Claimants who are listed on the Amended Final Monetary Awards Relief List in a manner designed to preserve the relative proportions of the Claimants’ shares of the Settlement Fund or, if the remaining funds are de minimis, consult with the State about the distribution. E. Priority Hiring Relief 90. From the Claimants on the Amended Final Priority Hire Claimant List, the State shall make eighteen (18) priority hires of African American Claimants and nineteen (19) priority hires of Hispanic Claimants. Priority hiring relief includes an award of noncompetitive retroactive seniority benefits corresponding with the Claimant’s retroactive seniority date, including retroactive pension benefits as described in Paragraphs 102 to 105, except that priority hires who failed only the written exam administered in 2017 as part of the State’s interim selection process pursuant to Paragraphs 32-33 of this Agreement, and did not previously fail the initial written, revised written, or video
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exams administered from 2000-2013, shall not be eligible for retroactive pension benefits. 91. 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 Priority Hire Claimant List and either:
a. Begins academy training in one of the first two (2) academy classes to begin after the Court enters the Final Individual Relief Awards Lists; or
b. Is a current RIDOC correctional officer or an officer hired through the interim process described above, who, prior to being hired, failed the initial written exam, the revised written exam, or the video exam between 2000 and 2013 who is credited by the State with noncompetitive retroactive seniority corresponding with the Claimant’s retroactive seniority date.
92. Nothing in this Agreement shall preclude any Claimant from applying for hire or being hired into the correctional officer position under any of the State’s regular selection processes. However, hire of a Claimant under one of the State’s regular selection processes, whether or not the hiring predated entry of the Agreement, shall not be counted toward fulfillment of the State’s priority hiring obligations under this Agreement, except pursuant to the provisions set forth in Paragraphs 91.b and 101. Hire of a Claimant under one of the State’s regular selection processes shall not affect the Claimant’s eligibility for monetary relief under this Agreement. The State also may not refuse to
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select or hire a Claimant under one of its regular selection processes because the Claimant is eligible for individual relief under this Agreement. 93. The State’s priority hiring obligation under this Agreement is satisfied upon the hiring of thirty-seven (37) priority hires as set forth in Paragraph 90, or upon the exhaustion of the Amended Final Priority Hire Claimant List.
i. Priority Hiring Relief Awarded to Eligible Claimants Identified in Paragraph 91.a a. Selection Process
94. The State shall require any eligible Claimant seeking priority hiring relief to successfully complete the State’s correctional officer screening and selection procedures that are then in effect and required of all other correctional officer applicants. The State shall make reasonable efforts as with all other applicants to accommodate Claimants in scheduling the screening and selection procedures described in this Paragraph.
95. The State shall extend to any eligible Claimant seeking priority hiring all rights, privileges, and processes, including disqualification appeals processes that the State regularly extends to applicants for correctional officer positions.
96. If the State 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 State 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 State’s determination to disqualify any Claimant, it shall notify the
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State in writing, and the Parties shall make a good faith effort to resolve the disagreement. If the Parties are unsuccessful in that regard, either Party may seek judicial resolution pursuant to the dispute resolution procedures set forth at Paragraph 110.
b. Offer of Priority Hire 97. The State will provide the Claimant with a written conditional offer of priority hire
upon a Claimant’s successful completion of the State’s correctional officer screening and selection procedures that are then in effect, that are required of all other correctional officer applicants, and that precede the State’s ordinary practice of extending conditional offers of hire to correctional officer applicants. The written conditional offer of priority hire will prominently indicate: (i) that the conditional offer is an offer of priority hire being made pursuant to the Agreement; (ii) that upon successful completion of the remaining correctional officer screening and selection procedures that are then in effect, as well as the successful completion of the training academy and the opening of a vacancy for an entry level correctional officer, the Claimant will enter as a correctional officer with the RIDOC, and will be entitled to noncompetitive retroactive seniority corresponding with the Claimant’s retroactive seniority date as provided by this Agreement; (iii) the salary and noncompetitive retroactive seniority benefits based on his/her retroactive seniority date that the State will provide upon entry into the Rhode Island Department of Corrections; (iv) the telephone number at which the Claimant may contact the State’s Settlement Agreement Compliance Officer with any questions regarding the offer of priority hire; and (v) the date that the Training Academy will
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begin. On the date that such a conditional offer of priority hire is provided to a Claimant, the State shall send a copy of the conditional offer of priority hire to the United States. 98. If a Claimant (i) fails to accept the State’s conditional offer of priority hire; (ii) fails to successfully complete the remaining correctional officer screening and selection procedures that are then in effect and that are required of all other correctional officer applicants; or (iii) fails to report for the training academy on the date directed by the State, except for good cause as determined by the parties, the State’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 91.a and shall not decrease the number of priority hires that the State must make under Paragraph 90.
c. State’s Reports to the United States on Claimants Hired 99. No later than thirty (30) days after the beginning of any academy class for which con-
ditional offers of priority hire are made, the State shall provide to the United States a written report identifying: (i) the name of each Claimant who was offered a conditional offer of a priority hire position; (ii) whether each such Claimant accepted the offer of a conditional priority hire position and entered the training academy; (iii) whether each such Claimant is still in the training academy; and (iv) whether any Claimants who were offered a conditional priority hire position did not report to the training academy on the start date identified in the State’s final offer of hire, or left the training academy before graduation, as well as the reasons therefore, to the extent such reasons are known by the State. 100. No later than thirty (30) days after the completion of any academy class within which conditional priority hires attended, the State shall provide to the United States a written
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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).
ii. Priority Hiring Relief Awarded to Incumbent Correctional Officers Pursuant to Paragraph 91.b
101. No more than fifteen (15) incumbent RIDOC correctional officers who are eligible Claimants listed on the Amended Final Priority Hire Claimant List may count toward the State’s priority hiring obligation pursuant to Paragraph 90, unless, upon the State’s request, the United States provides written consent permitting the State to exceed this limit. All such officers shall be credited with noncompetitive retroactive seniority corresponding with their retroactive seniority dates. The State will notify the United States in writing of any Claimants who are awarded priority hiring relief who currently serve as incumbent RIDOC correctional officers within thirty (30) days of any such award of priority hiring relief, and subsequently those hired through the interim selection process, including providing the United States with the names of the Claimants and details on the noncompetitive retroactive seniority credited to the Claimants, including salary adjustments. iii. Retroactive Pension Benefits
102. The State shall make employer-side contributions to the Employees’ Retirement System of Rhode Island (“ERSRI”) for each priority hire in an amount to be determined once all thirty-seven (37) priority hires are made or, if there are fewer than thirty-seven
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(37) Claimants on the Amended Final Priority Hire Claimant List who are not disqualified from the screening and selection process pursuant to Paragraph 96, when all such Claimants are hired. 103. The State’s employer-side pension contributions to ERSRI shall not exceed a total of ninety-six (96) years of credit for all priority hires.
a. The State shall make employer-side pension contributions to ERSRI in the following amounts, if the sum of all priority hires’ years of pension credit is equal to or less than ninety-six (96): Priority hires who were disqualified by failure of the initial written, revised written, or video exam in 2000 or 2001 will receive five (5) years of pension credit; those disqualified in 2004 or 2006 will receive four (4) years of pension credit; those disqualified in 2007 or 2008 will receive three (3) years of pension credit; those disqualified in 2011 will receive two (2) years of pension credit; and those disqualified in 2013 will receive one (1) year of pension credit.
b. If the sum of all priority hires’ years of pension credit exceeds ninety-six (96), the State shall make employer-side pension contributions to ERSRI of a total value equal to ninety-six (96) years of pension credit, to be distributed among priority hires in accordance with the structure of the years of credit described in Paragraph 103.a.
c. For those incumbent correctional officers who are awarded priority hiring relief pursuant to Paragraph 91.b, the State shall make employer-side pension contributions to ERSRI. Such Claimants shall be credited one (1) year of pension
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credit for every three (3) years of time that passed between the Claimant’s retroactive seniority date and the date on which the Claimant in fact started academy training. These amounts of pension credit will also count toward the ninety-six (96) years of pension credit. d. Priority hires who failed only the written exam administered in 2017 as part of the State’s interim selection process pursuant to Paragraphs 32-33 of this Agreement, and did not previously fail the initial written, revised written, or video exams administered from 2000-2013, shall not be eligible for retroactive pension benefits. 104. At the time the State credits a priority hire with noncompetitive retroactive seniority corresponding with the Claimant’s retroactive seniority date, the State shall offer to each priority hire, in writing, the opportunity to make retroactive employee-side contributions to ERSRI. A copy of the written offer shall be provided by the State to the United States and shall explain that priority hires will be permitted to make retroactive employee-side contributions to ERSRI by lump sum payment, by payroll deduction specified in an installment pursuant R. I. Gen. Laws § 36-9-47 available to all State employees, or by roll over of pre-tax dollars from a qualified plan such as a 401(k), to the extent permitted by applicable state or federal law, and subject to any terms or conditions applicable to a qualified plan such as a 401(k). The written offer will also explain that if retroactive employee-side contributions are not made within the designated time period as set forth in state law or under the pension system, the priority hire
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will not be eligible for the pension credits described in Paragraphs 102 and 103 of this Agreement. 105. At the time the State credits a priority hire with noncompetitive retroactive seniority corresponding with the Claimant’s retroactive seniority date, the State shall offer to each priority hire, in writing, the opportunity to create a 457(b) retirement account as with all other correctional officers. A copy of the written offer shall be provided by the State to the United States. The 457(b) retirement account offered by the State will be separate from (and in addition to) the pension plan each State employee has with ERSRI. IX. RECORD KEEPING AND COMPLIANCE MONITORING 106. While this Agreement remains in effect, the State shall maintain all of the following records:
a. All applications for the correctional officer position; b. All non-privileged documents relating to the screening, evaluation, or selection
of applicants for the position of correctional officer, other than documents the State 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 those described in Paragraphs 33 and 35; d. All non-privileged documents known to the State relating to written or verbal complaints made by any person or organization regarding discrimination on the basis of Hispanic national origin or African American race arising from the State’s use of the interim selection process pursuant to Paragraphs 32-33, or the
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State’s use of new hiring procedures pursuant to Paragraphs 34-39 of this Agreement; e. All non-privileged documents relating to the evaluation, selection, designation, and/or employment of priority hires under this Agreement; and f. All other non-privileged documents relating to the State’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. 107. Except as otherwise provided in this Agreement, the State will make available to the United States, no later than thirty (30) days after the United States so requests in writing, any non-privileged records maintained in accordance with Paragraph 106 and any additional non-privileged documents reasonably relating to any dispute arising under the Agreement. If such requests become unduly burdensome on the State, relief may be sought from the Court. 108. 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. 109. Within thirty (30) days after the United States so requests in writing, the State shall make available in Providence for interview or deposition (at the United States’ option) any agent, employee, or official of the State who the United States reasonably believes has non-privileged knowledge or information necessary to verify the State’s compli-
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ance with the terms of this Agreement or to resolve a dispute arising under this Agreement. The State may likewise interview or depose any witness with non-privileged knowledge or information regarding the matter in dispute. X. DISPUTE RESOLUTION 110. 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 111. Provided there are no outstanding disputes being resolved pursuant to Paragraph 110, this Agreement shall be dissolved without further order of the Court upon the completion of the following:
a. Fulfillment of the Parties’ obligations regarding General Injunctive Relief set forth in Section V of this Agreement;
b. Completion of the process regarding issuance of monetary award checks set forth in Paragraphs 81 through 89 of this Agreement; and
c. The passage of forty-five (45) days after the date the State provides the last of the reports and statements regarding priority hiring relief required by Paragraphs 99 and 100 of the Agreement.
112. The Parties will promptly file with the Court a notification of the fulfillment of all obligations set forth under Paragraph 111 and request that this action be dismissed.
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XII. COSTS AND FEES 113. The United States 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 described above. 114. Other than the payment of costs pursuant to Paragraph 113, each party shall bear its own costs, and other expenses incurred as a result of obligations imposed by this Agreement. 115. Each party shall bear its own costs, attorneys’ fees, and other expenses incurred in this litigation.
XIII. MISCELLANEOUS 116. 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 111 have been met. 117. The Parties shall, at a minimum, meet quarterly (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. 118. If there is any conflict between this Agreement and the requirements of any state or local law or regulation, the terms of this Agreement and Federal law shall control. 119. This Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements, representations, negotiations, and undertakings not set forth or incorporated herein. 120. Unless the United States has given express prior authorization for communication by other means, all written information and documents required to be delivered under this Agreement to the United States by the State shall be sent via overnight delivery to:
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Rhode Island Department of Corrections Settlement Team Employment Litigation Section U.S. Department of Justice Civil Rights Division PHB, Room 4500 601 D Street NW Washington, DC 20579 121. Unless the State has given express prior authorization for communication by other means, all written information and documents required to be delivered under this Agreement to the State by the United States shall be sent via overnight delivery to: Rhode Island Office of the Attorney General Attention: United States v. Rhode Island Department of Corrections Team 150 South Main Street Providence, RI 02903 122. 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. 123. 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 __________________, 2017.
__________________________________________ JUDGE WILLIAM E. SMITH UNITED STATES DISTRICT JUDGE
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 Case 1:14-cv-00078-WES-LDA Document 85-1 Filed 01/26/18 Page 1 of 22 PageID #: 1293

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF RHODE ISLAND, RHODE ISLAND DEPARTMENT OF CORRECTIONS,
Defendants.

Civil Action No.: 1:14-cv-78S

MEMORANDUM IN SUPPORT OF THE JOINT MOTION FOR FINAL APPROVAL OF THE SETTLEMENT AGREEMENT AND RESPONSES TO OBJECTIONS

Case 1:14-cv-00078-WES-LDA Document 85-1 Filed 01/26/18 Page 2 of 22 PageID #: 1294
Table of Contents
I. INTRODUCTION ................................................................................................................. 1 II. NOTICE ................................................................................................................................. 3 III. SUMMARY OF OBJECTIONS .......................................................................................... 4 IV. ARGUMENT ......................................................................................................................... 5
A. The Protected Groups Alleged to be Affected by the Challenged Selection Devices Are Those Receiving Relief Under the Agreement. ............................................................... 6 B. Whether the Challenged Tests Were Fair in Form is Irrelevant to Whether They are a Proper Basis for Disparate Impact Allegations Under Title VII....................................... 7 C. Only Qualified Candidates Will Receive Priority Hire Awards and Safety Concerns for Priority Hires are Unfounded............................................................................................ 8 D. The Relief Provided by the Settlement Agreement is Fair, Reasonable, and Adequate. ................................................................................................................................. 10
1. Mr. Badillo’s Argument about Inadequate Monetary Relief Mistakenly Conflates a Liability Judgment and a Settlement..................................................................................... 10 2. An Unlimited Settlement Fund is Neither a Legal nor Practical Requirement for a Settlement Agreement............................................................................................................ 11 3. The Adequacy of a Pattern or Practice Settlement Agreement Factors in All of the Relief Provided to Groups of Individuals, Not the Monetary Relief Provided to One Individual. ............................................................................................................................. 12 E. The Majority of “Objectors” Appear to be Interested in Obtaining Relief, and Not in Upsetting the Settlement......................................................................................................... 16 F. Some Objection Forms Are Blank or Unclear, Preventing the Parties From Responding. ............................................................................................................................. 16 V. CONCLUSION .................................................................................................................... 17
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Table of Authorities Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).................................................................. 10 Carson v. Am. Brands, Inc., 450 U.S. 79 (1981) .......................................................................... 15 Connecticut v. Teal, 457 U.S. 440 (1982)....................................................................................... 7 Cotter v. City of Boston, 193 F. Supp. 2d 323 (D. Mass. 2002) ..................................................... 8 Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977).................................................................... 11, 12 Durrett v. Hous. Auth. of the City of Providence, 896 F.2d 600 (1st Cir. 1990) ............................ 4 E.E.O.C. v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996)............................................................. 15 E.E.O.C. v. Astra USA, Inc., No. CIV.A. 98-40014-NMG, 1999 WL 342043 (D. Mass. May 20,
1999) ........................................................................................................................................... 6 E.E.O.C. v. McDonnell Douglas Corp., 894 F. Supp. 1329 (E.D. Mo. 1995).................. 12, 14, 15 Franks v. Bowman Transp. Co. Inc., 424 U.S. 747 (1976)..................................................... 10, 13 Fudge v. City of Providence Fire Dep’t, 766 F.2d 650 (1st Cir. 1985) .......................................... 8 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ........................................................................... 7 Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977); ........................................................ 8 Local No. 93, Int’l Assoc. of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501
(1986) ........................................................................................................................................ 10 Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San Francisco, 688 F.2d 615 (9th
Cir. 1982) ................................................................................................................ 11, 12, 13, 15 Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) ............................................... 14 Ricci v. DeStefano, 557 U.S. 557 (2009) ........................................................................................ 8 United States v. State of New Jersey, No. CIV. 10-91 KSH MAS, 2012 WL 3265905 (D.N.J.
June 12, 2012)........................................................................................................................... 14 United States v. State of New Jersey, No. CIV. 87-2331 (HAA), 1995 WL 1943013 (D.N.J. Mar.
14, 1995) ............................................................................................................................... 6, 12
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Case 1:14-cv-00078-WES-LDA Document 85-1 Filed 01/26/18 Page 4 of 22 PageID #: 1296 Statutes and Regulations 42 U.S.C. § 2000e-2(k) ............................................................................................................... 1, 7 42 U.S.C. § 2000e-2(n) ................................................................................................................... 3 42 U.S.C. § 2000e-5(b) ................................................................................................................. 14 42 U.S.C. § 2000e-5(e)(1)............................................................................................................. 14 42 U.S.C. § 2000e-6(a) ................................................................................................................. 13
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Plaintiff United States of America (“United States”) and Defendants the State of Rhode Island and the Rhode Island Department of Corrections (“RIDOC,” and collectively with the State, “Rhode Island”) submit this memorandum in support of the Joint Motion for Final Approval of the Settlement Agreement (“Agreement”). The Agreement was provisionally approved by the Court on October 20, 2017, and an initial fairness hearing is set for February 7, 2018. Order Granting Mot. for Provisional Entry, Dkt. 82. The United States and Rhode Island (collectively, the “Parties”) have worked diligently to notify applicants and other potentially affected individuals of the terms of the Settlement Agreement. This memorandum details those efforts, the nature of the few objections received, and the Parties’ responses. The objections submitted do nothing to affect the conclusion that the terms of the Agreement are fair, reasonable, and adequate.1 Accordingly, the Court should overrule all objections and finally approve the Agreement as a resolution of all claims asserted by the United States against Rhode Island. I. INTRODUCTION
The Parties seek final approval of the previously filed Settlement Agreement (“Agreement”), which resolves the United States’ allegations that the RIDOC engaged in a pattern or practice of employment discrimination in its selection procedure for the entry-level correctional officer (“CO”) position. Specifically, the United States contended that the CO selection process resulted in a disparate impact on African American and Hispanic applicants, was not job-related or consistent with business necessity, and did not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k) (“Title VII”). The United States does not, however, allege that the State has intentionally discriminated against any person
1 The Parties have included the objections as Exhibits A-1, A-2, A-3, and A-4 to this filing. The objections are Bates numbered for ease of reference.
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or group of persons. Rhode Island denies the challenged employment practices violate Title VII, and does not admit to liability in this case. In the interest of resolving this matter and promoting the purposes of Title VII, the Parties reached a settlement that is now before the Court for approval.
The major components of the settlement include establishment of a new selection procedure for entry-level COs, monetary relief, and priority hiring relief (with retroactive noncompetitive seniority) to qualified African American and Hispanic applicants who were affected by the employment practices that the United States challenged in this case. The Agreement is a product of lengthy negotiations held after substantial litigation, including fact and expert discovery. It is a thoughtful, reasonable compromise between the Parties resolving highly complex legal and factual issues. The Agreement represents a balancing of the goals and interests of the Parties against the costs, uncertainties, and delays inherent in further contested litigation.
The background of this action, including a summary of the allegations in the United States’ complaint and the extensive discovery the Parties engaged in before reaching a settlement, is set forth in the Memorandum of Law in Support of Joint Motion to Provisionally Enter the Settlement Agreement (“Initial Mem.”), as well as the attached declarations. Dkt. 80-7 at 1-11. This brief does not repeat that material but rather summarizes and responds to the objections received by the Parties. The Court should approve final entry of the Agreement because its terms are lawful, fair, reasonable, adequate, and consistent with the public interest and because, for the reasons discussed below, none of the objections warrants modification or non-approval of the Agreement.
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II. NOTICE Beginning in November 2017, well in advance of the initial fairness hearing scheduled
for February 7, 2018, the Parties completed a notice process that meets the requirements of Section 703(n) of Title VII, 42 U.S.C. § 2000e-2(n). In particular, pursuant to Section IV of the Agreement, the Parties, with assistance from the Claims Administrator, sent notice of both the Agreement and the initial fairness hearing, along with instructions for filing objections, to: (1) the applicants identified as preliminarily eligible for relief under Paragraph 19 of the Agreement; (2) each CO currently employed by RIDOC; and (3) the Rhode Island Brotherhood of Correctional Officers (“RIBCO”), the only union or association recognized as being authorized to represent COs at RIDOC. Declaration of Eric Schachter (“Schachter Decl.”), Ex. B at ¶¶ 5-7; Declaration of Leann Anderson (“Anderson Decl.”), Ex. C at ¶¶ 3, 6-7. Notices were transmitted by the methods set forth in detail in the Agreement at IV.C and IV.D. Ex. B, Schachter Decl. at ¶¶ 5-7 and Ex. C, Anderson Decl. at ¶¶ 6-7.
The Claims Administrator established a toll-free telephone number for interested individuals to call for information about the Agreement and filing an objection. Ex. B, Schachter Decl. at 8. In further compliance with the notice provisions set forth in Paragraph 23 of the Agreement, Rhode Island provided a link on its public websites where the Notice Documents and the Agreement can be accessed. Ex. C, Anderson Decl. at ¶¶ 4-5. Also in fulfillment of Paragraph 23, RIDOC published the information on its Facebook page, and the State published the information via Twitter. Ex. C, Anderson Decl. at ¶ 9. Finally, Rhode Island published notice of the Agreement and of the initial fairness hearing in the Providence Journal in a form substantially the same as contained in Appendix A to the Agreement. Ex. C, Anderson Decl. at ¶ 8. Thus, the Parties complied with their obligations under the Agreement by providing notice to third parties. See Durrett v. Hous. Auth. of the City of Providence, 896 F.2d 600, 604 (1st Cir.
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1990) (approval of a proposed settlement agreement requires, among other factors, reasonable notice to possible objectors and third parties who may be affected by the terms of the agreement). III. SUMMARY OF OBJECTIONS
Having completed the notice and objection process described above, the Parties are able to report that the five substantive objections received by the Parties fall within just a few categories: (1) all applicants, not just African Americans and Hispanics, should receive relief; (2) the exams were fair in form and therefore did not violate Title VII; (3) the Agreement will result in the hiring of less-qualified COs, or that priority hires will experience harassment; and (4) the relief provided is not adequate to fully compensate the claimants. As the Parties describe more fully below, the relief that the Agreement provides is appropriate in terms of both quantity and scope to resolve the United States’ complaint, which alleged a Title VII violation. Importantly, the Agreement does not require the RIDOC to hire any individual who is not currently qualified to be a correctional officer. Rather, all priority hires will need to pass all components of the CO selection process, including any new test developed as a result of this settlement, and successfully complete the CO academy. And the unsupported assertion that the Agreement will result in harassment is no basis to deny relief to those who have been affected by the practices challenged here. In summary, none of these objections provides a basis for disturbing the settlement, and all should be overruled.2
2 Of the objections received, sixteen objectors request an opportunity to address the Court at the Initial Fairness Hearing. For the Court’s convenience, a list of those objectors is attached as Exhibit D. However, the Parties wish to note that most of these objectors appear to actually be interested in relief. Of these sixteen individuals, four indicated that they are represented by counsel.
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In fact, the majority of the objections received were not objections at all; rather, thirtyseven of the fifty-four submissions were from individuals who are actually interested in relief and who erroneously submitted objection forms apparently believing it was necessary to preserve their claims for relief.3 Another twelve individuals provided no clear basis for objection, or explicitly indicated “no objection” on their submissions. The Parties received three untimely objections, one of which was blank, one of which was unclear, and one of which appeared to be by a potential claimant interested in relief. None of these should cause a delay in entering the Agreement. Instead, the fact that over 90% of those who submitted objection forms appear to be interested in receiving relief or did not set forth an actual objection only further supports entering the Agreement as written. IV. ARGUMENT
As discussed in the Initial Memorandum, the Parties have demonstrated that the Agreement meets the requisite standard for approval, as its terms are lawful, fair, reasonable, adequate, and consistent with the public interest. See Initial Mem. at 11-24. The few objections received should be overruled because they either misunderstand the scope of the underlying lawsuit or the nature of the relief provided.
3 The Parties received three untimely objections, but two appear to be from possible claimants who are interested in relief and are not challenging the settlement; a third is unclear. See Coakley Obj., Bates No. OBJ00046-49, and Maner Obj., Bates No. OBJ000107-109; see also Cheaye Obj., Bates No. OBJ00040-42. There were also a few claimants who submitted more than one objection, but for purposes of this brief, these will be referred to as one objection because each individual’s objections were either identical to one another, or one version was blank while one was completed.
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A. The Protected Groups Alleged to be Affected by the Challenged Selection Devices Are Those Receiving Relief Under the Agreement.
The United States received one objection, from Daniel Desrochers, challenging the Agreement on the basis that it limits relief to only African American and Hispanic candidates and does not extend relief to all other groups. See Desrochers Obj., Bates No. OBJ00060.4 This lawsuit only challenges the impact of RIDOC’s hiring practices on African American and Hispanic applicants seeking positions as entry-level COs; as the Initial Memorandum explains, the United States marshaled evidence of adverse impact against only those two applicant groups and not other groups. Initial Mem. at 2-6. Mr. Desrochers’s objection must be rejected because providing relief to other groups would exceed the scope of this lawsuit, and individuals in other protected categories have not been alleged to have been harmed by Rhode Island’s challenged employment practices. Indeed, two other courts have overruled objections by individuals whose claims were outside the scope of the underlying lawsuit precisely because relief is not appropriate for groups of individuals for whom relief was not sought in the complaint. See E.E.O.C. v. Astra USA, Inc., No. CIV.A. 98-40014-NMG, 1999 WL 342043, at *3 (D. Mass. May 20, 1999) (approving of special master’s decision to deny relief, under Title VII consent decree, to would-be claimants whose allegations were not covered by the complaint in the case); United States v. State of New Jersey, No. CIV. 87-2331 (HAA), 1995 WL 1943013, at *25-26 (D.N.J. Mar. 14, 1995) (approving relief set forth in consent decree and overruling objections by members of protected categories, where, among other things, individuals in those categories were outside the scope of the complaint).
4 Notably, Mr. Desrochers did not take the challenged exams during the relevant time period in this lawsuit nor can the Parties envision a scenario where he would take any future test.
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B. Whether the Challenged Tests Were Fair in Form is Irrelevant to Whether They are a Proper Basis for Disparate Impact Allegations Under Title VII.
One objector, Tisha Alhassan, asserts that the challenged tests were lawful because all applicants were on a level playing field; Ms. Alhassan argues that “a general education is free in the United States,” and that all applicants took the same test, under the same conditions. Alhassan Obj., Bates No. OBJ00011.5 Inherent in the objection is Ms. Alhassan’s view that Rhode Island did not intentionally discriminate, so it cannot be liable for violating Title VII. But in bringing this case, the United States relied exclusively on the disparate impact theory of liability, which is premised on an employer’s unintentional violation of Title VII. Title VII, of course, allows for exactly this type of claim. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). After all, Title VII proscribes “not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Id. (emphasis added); see also 42 U.S.C. § 2000e2(k) (codifying the “disparate impact” theory of liability that Griggs recognized). The Supreme Court has explicitly recognized written exams as one type of selection procedure subject to challenge by disparate impact theory, and Congress, in codifying disparate impact theory, specifically intended for Title VII to protect minorities against exams that create artificial barriers to job opportunities in state and municipal government. Griggs, 401 U.S. at 430; see also Connecticut v. Teal, 457 U.S. 440, 448-49 (1982).
Facial neutrality of the challenged practices gives no basis for non-approval or modification of the Agreement. Thus, the fact that a written or video exam may be fair in form, as Ms. Alhassan suggests, is only a starting point to determine whether disparate treatment or
5 The anonymous objection discussed infra in this brief implies this argument as well. See Anonymous Obj., Bates No. OBJ00012-15. In addition, although the Parties received Ms. Alhassan’s objection in a timely manner, she did not use the Court-approved objection form, instead sending an e-mail to the Claims Administrator. The United States made attempts to reach Ms. Alhassan to correct this error but she did not respond.
7

Case 1:14-cv-00078-WES-LDA Document 85-1 Filed 01/26/18 Page 12 of 22 PageID #: 1304
disparate impact analysis is appropriate. Here, the relevant inquiry is whether a facially neutral written or video exam nonetheless prevented African American and Hispanic applicants from enjoying equal employment opportunities at the Rhode Island Department of Corrections. In the disparate impact context, to demonstrate a nexus between an employment test and any resulting disparities in pass rates, a plaintiff need only show that statistical evidence has sufficiently diminished chance as an explanation for the difference in pass rates between different groups. Fudge v. City of Providence Fire Dep’t, 766 F.2d 650, 658 (1st Cir. 1985). Courts typically accept, as sufficient to establish the first prong of a disparate impact case, disparities that are statistically significant at the level of two to three units of standard deviation. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.14 (1977); Cotter v. City of Boston, 193 F. Supp. 2d 323, 349 n.12 (D. Mass. 2002), aff’d in part and rev’d on unrelated grounds by Cotter v. City of Boston, 323 F.3d 160 (1st Cir. 2003). Dr. Bernard R. Siskin, the United States’ statistical expert, found in this case that the disparities caused by the challenged employment practices far exceed this standard. Initial Mem. at 3-6; Dkt. 80, Ex. B, Siskin Decl. at ¶¶ 3-6. These disparities, in conjunction with either successfully challenging Rhode Island’s validity evidence or establishing alternative selection devices with less disparate impact, would establish a Title VII violation. Ricci v. DeStefano, 557 U.S. 557, 578 (2009). Accordingly, the Court should overrule this objection.
C. Only Qualified Candidates Will Receive Priority Hire Awards and Safety Concerns for Priority Hires are Unfounded.
One anonymous objector claims that the Agreement will result in Rhode Island appointing less qualified candidates to be entry-level COs.6 See Anonymous Obj., Bates No.
6 This objector did not identify himself or herself, and the Court should disregard the objection for that reason; further, the objection is a conclusory assertion and the objector offers no specific
8

Case 1:14-cv-00078-WES-LDA Document 85-1 Filed 01/26/18 Page 13 of 22 PageID #: 1305
OBJ00012-15. Another objector, Daniel Hall, raises the concern that those who passed (presumably) earlier exams will subject priority hires to harassment. See Hall Obj., Bates No. OBJ00081-83.
The anonymously submitted objection regarding the qualification of priority hires demonstrates a misunderstanding of Title VII disparate impact liability and the relief provided by the Settlement Agreement. To be clear, the Parties share the same goals of hiring qualified COs using a nondiscriminatory selection procedure and believe this Settlement Agreement furthers these objectives. To show likelihood of success on the merits, the United States has put forth evidence that the challenged practices could not distinguish meaningfully between qualified and unqualified candidates. Dkt. 80-9, Declaration of Dr. David P. Jones at ¶¶ 22-30. As previously discussed, the Parties disagree as to whether this evidence is sufficient to establish liability under Title VII; however they agree the United States’ evidence is sufficient to satisfy the “strong basis in evidence” standard. See Initial Mem. at n.5. Regardless, Rhode Island will adopt a new selection procedure for entry-level COs that will be rigorously examined to ensure that it selects qualified candidates for these important public safety positions in accordance with Title VII. Agreement at ¶ V.D. A Claimant will not be hired pursuant to the Agreement unless, like everyone else, the Claimant passes the newly adopted selection procedure and successfully completes all lawful steps in the hiring process that are in effect at the time, including the training academy. Initial Mem. at 8; Agreement at ¶ 97. There simply is no support for the idea that the Agreement will cause Rhode Island to hire unqualified COs. Instead, the Settlement Agreement will help ensure that the most qualified individuals are screened and selected.
evidence to support his or her claim. However, out of an abundance of caution, the Parties still address the objection here.
9

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With respect to Mr. Hall’s objection, there is no basis to believe that the Agreement will cause a hostile work environment for any individual. In any event, that others may wrongfully stigmatize individuals receiving relief is not a legitimate basis for denying final approval. See Local No. 93, Int’l Assoc. of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 511-12, 529 (1986) (affirming approval of a consent decree over objections that the decree would cause “serious racial polarization”); see also Franks v. Bowman Transp. Co. Inc., 424 U.S. 747, 775 (1976) (concluding that relief cannot be denied “merely because the majority group of employees, who have not suffered discrimination, will be unhappy about it”) (citation omitted). For these reasons, these objections related to priority hires also should be overruled.
D. The Relief Provided by the Settlement Agreement is Fair, Reasonable, and Adequate.
One objector, Jayson Badillo, claims that the Parties’ agreed-upon relief is not enough to make claimants whole for the harm they suffered. See Badillo Obj., Bates No. OBJ00016-30. Because there are no other objections in this vein, the Parties will address each of this objection’s subparts in this section.
1. Mr. Badillo’s Argument about Inadequate Monetary Relief Mistakenly Conflates a Liability Judgment and a Settlement.
The major issue Mr. Badillo takes with the Agreement is that the monetary relief the Parties agreed upon, after years of litigation, is not make-whole relief in the sense that it does not represent full monetary recovery. Badillo Obj., Bates No. OBJ00019. At the heart of Mr. Badillo’s argument is the assumption that Rhode Island has been found liable for a violation of Title VII after a trial on the merits. See Badillo Obj., Bates No. OBJ00025, citing Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (reversing lower court’s decision to deny backpay after employer was found liable under Title VII after trial). Like the sole, unsuccessful objector in the Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San Francisco case, Mr.
10

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Badillo approaches the Agreement as “if he were appealing from the award of relief after a fully contested trial on the merits instead of from a judgment approving a settlement of the case.” Officers for Justice v. Civil Serv. Comm’n of City & Cty. of San Francisco, 688 F.2d 615, 628 (9th Cir. 1982) (affirming district court’s approval of consent decree over objection to monetary amount).
Here, the monetary relief is the result of a settlement reached after protracted litigation between two government entities involving extensive discovery, and after extended arms-length settlement negotiations in which the plaintiff is a federal agency charged with enforcing civil rights laws. It stands to reason that the monetary amount is the result of a compromise reflecting a thorough assessment, by both parties, of the risks of further litigation, not only through trial, but through any associated appeals. A review of the public record reveals that the Parties propounded multiple sets of interrogatories, document requests, and requests for admissions; took numerous fact and expert depositions; and exchanged several sets of expert reports. Dkt. 80-7 at 19. The Settlement Agreement that has been negotiated between the Parties provides a fair and reasonable settlement fund that takes into account not only relief for persons harmed by the challenged selection process but also the inherent risks of protracted litigation to both sides.
2. An Unlimited Settlement Fund is Neither a Legal nor Practical Requirement for a Settlement Agreement.
Mr. Badillo’s next argument proposes that the Court should presume liability here and establish an unlimited settlement amount to compensate claimants. Badillo Obj., Bates No. OBJ00025; see also Cotton v. Hinton, 559 F.2d 1326, 1338 (5th Cir. 1977). An unlimited settlement fund, however, is neither required under Title VII nor necessary in order for this Court to determine that the Settlement Agreement is fair, reasonable, and adequate. Moreover, the single case cited by the objector is an outlier: it is the only instance of an unlimited settlement
11

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fund known to the Parties, was decided over forty years ago, and is contrary to the weight of federal law and common practice by the Department of Justice in negotiating settlements or consent decrees in disparate impact cases. See Badillo Obj., Bates No. OBJ00025 and citations to Cotton therein.7 And, although an unlimited settlement fund is the highest hope of any claimant, it is certainly not determinative of the fairness of a settlement. For that reason, “[i]t is well-settled law that a cash settlement amounting to only a fraction of the potential recovery will not per se render the settlement inadequate or unfair.” Officers for Justice, 688 F.2d at 628; see also United States v. State of New Jersey, No. CIV. 87-2331 (HAA), 1995 WL 1943013, at *13 (D.N.J. Mar. 14, 1995) (reasonableness of the settlement fund in light of the best possible recovery must be weighed against risks and costs of litigation) (internal citation and quotation marks omitted); E.E.O.C. v. McDonnell Douglas Corp., 894 F. Supp. 1329, 1335 (E.D. Mo. 1995) (in assessing settlement’s fairness, court does not make a de novo evaluation of recovery for each claimant).
3. The Adequacy of a Pattern or Practice Settlement Agreement Factors in All of the Relief Provided to Groups of Individuals, Not the Monetary Relief Provided to One Individual.
This Settlement Agreement represents a compromise of monetary claims that are just one component of the relief sought by the United States. Over the course of lengthy negotiations, both the United States and Rhode Island agreed to terms that would remedy the claims brought by the United States in its complaint. In addition to the establishment of a settlement fund, the
7 That said, Cotton does speak to the type of speculation that Badillo would ask the Court to engage in here, holding that “[t]he trial court should not make a proponent of a proposed settlement ‘justify each term of settlement against a hypothetical or speculative measure of what concessions might have been gained; inherent in compromise is a yielding of absolutes and an abandoning of highest hopes.’” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977) (internal citation and quotation marks omitted) (emphasis added).
12

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Parties have negotiated: (1) priority hiring relief (with pension benefits and non-competitive retroactive seniority) for eligible, qualified candidates who were previously denied hire, and (2) the development of new selection devices to ensure protected classes have equal employment opportunities in the future in accordance with Title VII. The Court must consider all of the relief provided to claimants as a whole, including all terms, when considering whether the Agreement is fair, and, for this reason alone, Mr. Badillo’s objection should be overruled. See Officers for Justice, 688 F.2d at 628 (“[M]onetary relief is but one form of relief requested . . . [i]t is the complete package taken as a whole, rather than the individual component parts, that must be examined for overall fairness.”).
Next, Mr. Badillo argues that the proposed Settlement Agreement is inadequate because the Parties did not seek individualized financial information from him or seek to depose him (see Badillo Obj., Bates No. OBJ00023 and OBJ00029). He contends that the monetary relief that the Parties negotiated as a settlement fund does not adequately compensate him for the full value of the losses he incurred as a result of Rhode Island’s putative Title VII violation. Simply put, the purpose of a settlement agreement in a disparate impact case like this one is to provide classwide relief without particularized individual assessments that require the type of extensive discovery Mr. Badillo describes. Disparate impact cases such as this one are pattern or practice lawsuits aimed at dismantling employment processes that discriminate against an entire protected class or classes. See 42 U.S.C. § 2000e-6(a). Akin to class action lawsuits, the focus in a case of this type is to provide a remedy to the class as a whole and not to specific individuals, as would be appropriate in a single-plaintiff case. See, e.g., Franks v. Bowman Transp. Co. Inc., 424 U.S. 747, 763 (1976) (emphasizing importance of class-based relief and listing possible forms of relief).
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The Settlement Agreement incorporates several remedies aimed at addressing Rhode Island’s allegedly discriminatory practices, of which monetary relief is just one component. Id. In these types of settlements, parties typically look at the base salary for a particular position as well as relevant fringe benefits to calculate monetary damages by class. See, e.g., E.E.O.C. v. McDonnell Douglas Corp., 894 F. Supp. 1329, 1336 (E.D. Mo. 1995) (approving of similar methodology for calculating monetary award); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974) (after liability finding, calculating backpay based on salaries earned by actual incumbents, and including fringe benefits in calculation). Generally, parties do not calculate or consider the lost pay of every individual potentially harmed by the failure to hire in assessing make whole relief to the class. United States v. State of New Jersey, No. CIV. 10-91 KSH MAS, 2012 WL 3265905, at *22 (D.N.J. June 12, 2012), aff’d sub nom. United States v. New Jersey, 522 F. App’x 167 (3d Cir. 2013) (overruling similar objections based on adequacy of monetary relief and observing that “[a]lthough the record demonstrates this to be a strong case, that does not guarantee that the United States would have obtained the maximum relief available under Title VII had the case gone to trial.”). It would be futile to expend resources and time to establish or counter individual claims of lost pay, especially where, as here, it is impossible to predict how applicants would have fared in other steps of the hiring process that are not challenged in this lawsuit. Instead, the Parties here have attempted to implement a relief process that employs fundamental fairness principles, which require that qualified claimants be adequately compensated for losses without exceeding make-whole relief.
In order to recover full back pay, including benefits, Mr. Badillo would have needed to file a timely EEOC charge within 300 days of use of the challenged selection device, and then bring a Title VII case. 42 U.S.C. § 2000e-5(b) and 42 U.S.C. § 2000e-5(e)(1) (describing an
14

Case 1:14-cv-00078-WES-LDA Document 85-1 Filed 01/26/18 Page 19 of 22 PageID #: 1311
aggrieved person’s ability to file a charge to preserve a claim). That window of opportunity has passed. It is not feasible now for the Parties to speculate for claimants, including Mr. Badillo, whether they would have passed all of the other components at the time they applied, and how long they would have worked for Rhode Island had they been employed at that point. Indeed, the Parties’ proposed settlement clearly affords a greater opportunity for more potential claimants like Mr. Badillo to obtain relief. See, e.g., E.E.O.C. v. McDonnell Douglas Corp., 894 F. Supp. 1329, 1335 (E.D. Mo. 1995) (observing that objectors whose EEOC charges would no longer be timely would recover as a result of a negotiated settlement, where such objectors might not be able to file timely individual EEOC charges).
Having assessed the costs and benefits of settlement instead of protracted litigation, the Parties chose to resolve the lawsuit voluntarily, without a trial on the merits, in a manner consistent with Title VII’s aims. E.E.O.C. v. Astra USA, Inc., 94 F.3d 738, 744 (1st Cir. 1996) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n.14 (1981) (“In enacting Title VII, Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims.”). As a result, the monetary relief component of the Agreement is necessarily the product of compromise and does not provide full compensatory damages for each claimant. As the Ninth Circuit aptly put in describing a consent decree approved by the district court: “Undoubtedly, the amount of the individual shares will be less than what some class members feel they deserve but, conversely, more than the defendants feel those individuals are entitled to. This is precisely the stuff from which negotiated settlements are made.” Officers for Justice, 688 F.2d at 628. For the aforementioned reasons, the Court should overrule Mr. Badillo’s objection to the monetary relief agreed upon by the Parties.
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E. The Majority of “Objectors” Appear to be Interested in Obtaining Relief, and Not in Upsetting the Settlement.
Most of the objections (thirty-seven of fifty-four) received by the Parties do not appear to be objections at all; rather, the objectors assert that they took the challenged exams and either did not pass or were told they did not pass, or they have not heard whether they passed. See, e.g., Kollie Obj., Bates No. OBJ00090-92; Torres Obj., Bates No. OBJ000154-156; Ugarte Obj., Bates No. OBJ000157-159; Jackley Obj., Bates No. OBJ00087-89; Kuyon Obj., Bates No. OBJ00097-100. Some of these objectors make clear that they would like to be considered for relief. See, e.g., Ugarte Obj., Bates No. OBJ000157-159. Others assert that they believe they were not hired due to their race, national origin, or age, that the test was unfair to them, or that the test was too difficult, though these objectors do not specifically say they are interested in relief. See, e.g., DeJesus Obj., Bates No. OBJ00057-59; Komolafe Obj., Bates No. OBJ0009396. To the extent these objectors are eligible claimants as defined in the Settlement Agreement, they will receive Interest-in-Relief forms upon final entry of the Agreement, and may submit those forms, at which point the Parties will make relief determinations.8 Since these objectors did not contest any of the terms of the Agreement, their objections should be overruled.
F. Some Objection Forms Are Blank or Unclear, Preventing the Parties From Responding.
The Parties received twelve objection forms that do not provide any basis for objecting to the Agreement. See Davila Obj., Bates No. OBJ00054-56; Goncalves Obj., Bates No. OBJ00072-74; Cheaye Obj., Bates No. OBJ00040-42. These include objection cover sheets that contain only the objector’s name and contact information, as well as one that only says
8 Indeed, when the Department of Justice contacted twelve of these “objectors” to clarify their forms and confirm their contact information, those individuals indicated that they had not meant to object at all, but out of an abundance of caution, the Parties count their forms as objections here.
16

Case 1:14-cv-00078-WES-LDA Document 85-1 Filed 01/26/18 Page 21 of 22 PageID #: 1313 “Discrimination.” See Mendez Obj., Bates No. OBJ000120-122. The Parties are unable to comment on these submissions except to state that they do not provide any basis for denying final approval. V. CONCLUSION For the foregoing reasons, as well as those stated in the Initial Memorandum, the Court should find that the terms of the Agreement are lawful, fair, reasonable, adequate and consistent with the public interest, and that no objection warrants modification or non-approval of the Agreement. Accordingly, the Court should overrule all objections and finally approve the Agreement as a resolution of all claims in this case.
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 Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 1 of 16
APPEAL,CLOSED
U.S. District Court District of Rhode Island (Providence) CIVIL DOCKET FOR CASE #: 1:14−cv−00078−WES−LDA

United States of America v. State of Rhode Island Department of Date Filed: 02/10/2014

Corrections et al

Date Terminated: 05/15/2018

Assigned to: Chief Judge William E. Smith

Jury Demand: None

Referred to: Magistrate Judge Lincoln D. Almond

Nature of Suit: 440 Civil Rights: Other

Case in other court: U.S. Court of Appeals for the First Circuit, Jurisdiction: U.S. Government Plaintiff

18−01462

Cause: 42:2000 Job Discrimination (Age)

Plaintiff

United States of America

represented by Clare Geller United States Department of Justice Employment Litigation Civil Rights Division 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−353−1817 Email: clare.geller@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clare F. Geller Department of Justice Patrick Henry Building Room 4926 601 D. Street N.W. Washington, DC 20579 Email: clare.geller@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Delora Kennebrew United States Department of Justice Employment Litigation Civil Rights Division 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−353−1817 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth B. Banaszak U.S. Department of Justice PHB 4th Floor 950 Pennsylvania Ave. NW Washington, DC 20530 Email: elizabeth.banaszak@usdoj.gov TERMINATED: 06/15/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Lopez United States Dept of Justice 950 Pennsylvania Ave, NW, PHB Washington, DC 20530 202−353−1817 Fax: 202−514−1105 Email: louis.lopez@usdoj.gov LEAD ATTORNEY

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 2 of 16
ATTORNEY TO BE NOTICED
David N. Reese U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. NW Washington, DC 20530 202−514−3851 Email: david.reese@usdoj.gov TERMINATED: 10/12/2017 ATTORNEY TO BE NOTICED
Emily Adams Given U.S. Department of Justice Civil Rights Division, Employment Litigation 950 Pennsylvania Avenu, NW, PHB 4239 Washington, DC 20530 202−353−1217 Email: Emily.Given@usdoj.gov ATTORNEY TO BE NOTICED
Kunti D. Salazar U.S. Department of Justice Civil Rights Division Patrick Henry Building, Suite 4027 601 D. Street NW Washington, DC 20579 202−353−1282 Email: kunti.salazar@usdoj.gov ATTORNEY TO BE NOTICED
Raheemah F. Abdulaleem United States Department of Justice 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−307−2034 Email: Raheemah.Abdulaleem@usdoj.gov ATTORNEY TO BE NOTICED
Shayna M. Bloom U.S. Department of Justice Civil Rights Division Employment Litigation Section, PHB 4920 950 Pennsylvania Ave. NW Washington, DC 20530 202−305−1450 Email: shayna.bloom@usdoj.gov ATTORNEY TO BE NOTICED

V.
Defendant
State of Rhode Island Department of Corrections

represented by Neil F.X. Kelly Department of Attorney General Civil Division 150 South Main Street Providence, RI 02903 401−274−4400 Fax: 401−222−2995 Email: nkelly@riag.ri.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 3 of 16

Rebecca Tedford Partington Attorney General's Office 150 South Main Street Providence, RI 02903 274−4400 x 2303 Fax: 222−2995 Email: rpartington@riag.ri.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ariele Yaffee Rhode Island Office of the Attorney General 150 South Main Street Providence, RI 02903 401−274−4400 Email: ayaffee@riag.ri.gov TERMINATED: 05/11/2018 ATTORNEY TO BE NOTICED

Edward G. Mullaney RI Department of Attorney General 150 South Main Street Providence, RI 02903 401−274−4400 x2005 Fax: 401−222−3016 Email: emullaney@riag.ri.gov ATTORNEY TO BE NOTICED

Kathleen M. Kelly RI Department of Corrections 40 Howard Avenue Cranston, RI 02920 (401) 462−2546 Fax: (401) 462−2583 Email: kathleen.kelly@doc.ri.gov ATTORNEY TO BE NOTICED

Mariana E. Ormonde Rhode Island Department of Attorney General 150 South Main Street Providence, RI 02903 401−274−4400 ext. 2250 Email: mormonde@riag.ri.gov ATTORNEY TO BE NOTICED

Defendant State of Rhode Island

represented by Neil F.X. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Tedford Partington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ariele Yaffee (See above for address) TERMINATED: 05/11/2018 ATTORNEY TO BE NOTICED

Edward G. Mullaney

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 4 of 16

(See above for address) ATTORNEY TO BE NOTICED

Mariana E. Ormonde (See above for address) ATTORNEY TO BE NOTICED

Claimant Jayson Badillo

represented by Thomas W. Lyons , III Strauss, Factor, Laing & Lyons One Davol Square Suite 305 Providence, RI 02903 456−0700 Fax: 421−4730 Email: tlyons@straussfactor.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rhiannon S. Huffman Strauss, Factor, Laing & Lyons One Davol Square Suite 305 Providence, RI 02903 401−456−0700 Fax: 401−421−4730 Email: rhuffman@straussfactor.com ATTORNEY TO BE NOTICED

Date Filed 02/10/2014 02/13/2014 02/13/2014
02/19/2014
03/05/2014 04/07/2014 04/14/2014
04/14/2014
04/25/2014 04/25/2014 04/25/2014

# Docket Text
1 COMPLAINT, filed by United States of America. (Attachments: # 1 Civil Cover Sheet)(Farrell Pletcher, Paula) (Entered: 02/10/2014)
2 NOTICE of Appearance by Neil F.X. Kelly on behalf of State of Rhode Island, State of Rhode Island Department of Corrections (Kelly, Neil) (Entered: 02/13/2014)
3 NOTICE of Appearance by Rebecca Tedford Partington on behalf of State of Rhode Island, State of Rhode Island Department of Corrections (Partington, Rebecca) (Entered: 02/13/2014)
4 WAIVER OF SERVICE Returned Executed by United States of America. State of Rhode Island waiver sent on 2/10/2014, answer due 4/11/2014. (Rogers, Mary) (Entered: 02/19/2014)
5 NOTICE of Appearance by Kathleen M. Kelly on behalf of State of Rhode Island Department of Corrections (Duhamel, John) (Entered: 03/05/2014)
6 STIPULATION by All Defendants. (Kelly, Neil) (Entered: 04/07/2014)
TEXT ORDER Entering 6 Stipulation filed by State of Rhode Island, State of Rhode Island Department of Corrections, United States of America. So Ordered by Chief Judge William E. Smith on 4/14/14. (Jackson, Ryan) (Entered: 04/14/2014)
Reset Deadlines: State of Rhode Island answer due 4/25/2014; State of Rhode Island Department of Corrections answer due 4/25/2014. (Jackson, Ryan) (Entered: 04/14/2014)
7 NOTICE of Appearance by Ariele Yaffee on behalf of All Defendants (Yaffee, Ariele) (Entered: 04/25/2014)
8 NOTICE of Appearance by Edward G. Mullaney on behalf of All Defendants (Mullaney, Edward) (Entered: 04/25/2014)
9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by All Defendants. Responses due by 5/12/2014 (Attachments: # 1 Supporting Memorandum,

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 5 of 16

04/25/2014 04/25/2014 04/29/2014 04/30/2014 05/08/2014 05/13/2014
05/21/2014 05/23/2014 05/27/2014
05/28/2014
05/30/2014 06/06/2014 06/10/2014 07/30/2014 08/05/2014
08/11/2014

# 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I − redacted, # 11 Exhibit J, # 12 Exhibit K − redacted, # 13 Exhibit L, # 14 Exhibit M)(Kelly, Neil) (Entered: 04/25/2014)
10 MOTION for an Extension of Time to File Answer filed by All Defendants. Responses due by 5/12/2014 (Kelly, Neil) (Entered: 04/25/2014)
11 MOTION to Seal Document filed by State of Rhode Island, State of Rhode Island Department of Corrections. (Urizandi, Nisshy) (Additional attachment(s) added on 8/11/2016: # 1 motion to seal) (Capraro, Dona). (Entered: 04/28/2014)
TEXT ORDER granting 11 Motion to Seal Document. So Ordered by Chief Judge William E. Smith on 4/29/2014. (Urizandi, Nisshy) (Entered: 04/30/2014)
TEXT ORDER granting 10 Motion for Extension of Time to Answer Complaint. So Ordered by Chief Judge William E. Smith on 4/30/14. (Jackson, Ryan) (Entered: 04/30/2014)
13 Consent MOTION for an Extension of Time filed by United States of America. Responses due by 5/27/2014 (Geller, Clare) (Entered: 05/08/2014)
TEXT ORDER granting 13 Motion for Extension of Time to respond to 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM up to and including 5/22/14. So Ordered by Chief Judge William E. Smith on 5/13/14. (Jackson, Ryan) (Entered: 05/13/2014)
14 RESPONSE in Opposition re 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by United States of America. (Geller, Clare) (Entered: 05/21/2014)
15 MOTION for an Extension of Time to File Response/Reply as to 14 Response in Opposition to Motion filed by All Defendants. Responses due by 6/9/2014 (Kelly, Neil) (Entered: 05/23/2014)
TEXT ORDER granting 15 Motion for Extension of Time to File Response/Reply re 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; Replies due by 5/30/2014. So Ordered by Chief Judge William E. Smith on 5/27/14. (Jackson, Ryan) (Entered: 05/27/2014)
NOTICE of Hearing on Motion 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing scheduled for 8/5/2014 at 10:00 AM in Courtroom 2 before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 05/28/2014)
16 REPLY to Response to Motion re 14 Response in Opposition to Motion filed by State of Rhode Island, State of Rhode Island Department of Corrections. (Kelly, Neil) (Entered: 05/30/2014)
17 Consent MOTION for Leave to File Surreply filed by United States of America. Responses due by 6/23/2014 (Attachments: # 1 Exhibit 1 Surreply)(Geller, Clare) (Entered: 06/06/2014)
TEXT ORDER granting 17 Motion for Leave to File Surreply. So Ordered by Chief Judge William E. Smith on 6/10/14. (Jackson, Ryan) (Entered: 06/10/2014)
18 NOTICE by State of Rhode Island, State of Rhode Island Department of Corrections of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kelly, Neil) (Entered: 07/30/2014)
Minute Entry for proceedings held before Chief Judge William E. Smith: Motion Hearing held on 8/5/2014 re 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by State of Rhode Island, State of Rhode Island Department of Corrections. (Geller, Kelly, Partington) Court addresses. Arguments heard. Court takes matter under advisement and will issue a written ruling. Recess. (Court Reporter Anne Clayton in Courtroom 2 at 10:10 a.m.) (Urizandi, Nisshy) (Entered: 08/05/2014)
19 TRANSCRIPT ORDER for proceedings held on August 5, 2014 before Judge Smith.. (Geller, Clare) (Entered: 08/11/2014)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 6 of 16

08/13/2014 08/22/2014
01/29/2015 02/05/2015 02/12/2015 02/12/2015 02/13/2015 02/23/2015 03/04/2015 03/05/2015 03/06/2015 03/09/2015 03/10/2015
03/11/2015 03/19/2015

20 TRANSCRIPT ORDER for proceedings held on 8−5−14 before Judge William E. Smith.. (Kelly, Neil) (Entered: 08/13/2014)
21 TRANSCRIPT of Defendant's Motion to Dismiss held on August 5, 2014, before Chief Judge William E. Smith. Court Reporter Anne M. Clayton, Telephone number 401−255−2310. 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 through PACER NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion.. Redaction Request due 9/12/2014. Redacted Transcript Deadline set for 9/22/2014. Release of Transcript Restriction set for 11/20/2014. (Clayton, Anne) (Entered: 08/22/2014)
22 MEMORANDUM AND ORDER denying 9 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge William E. Smith on 1/29/15. (Jackson, Ryan) (Entered: 01/29/2015)
NOTICE of Hearing: Status Conference scheduled for 2/27/2015 at 11:00 AM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 02/05/2015)
23 ANSWER to 1 Complaint by State of Rhode Island, State of Rhode Island Department of Corrections.(Kelly, Neil) (Entered: 02/12/2015)
Reset Hearings re: Notice of Status Conference RE−SCHEDULED for Wednesday 2/18/2015 at 9:30 AM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 02/12/2015)
Reset Hearings re: Status Conference RE−SCHEDULED for 3/6/2015 at 10:00 AM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 02/13/2015)
24 AMENDED ANSWER to 1 Complaint by State of Rhode Island, State of Rhode Island Department of Corrections. (Kelly, Neil) (Entered: 02/23/2015)
Reset Hearings re: Status Conference re−scheduled for 3/6/2015 at 2:30 PM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 03/04/2015)
25 NOTICE by United States of America Regarding Proposed Discovery Plan (Attachments: # 1 Text of Proposed Order United States' Proposed Discovery Plan, # 2 Text of Proposed Order United States' Proposed ESI Order)(Banaszak, Elizabeth) (Entered: 03/05/2015)
Minute Entry for proceedings held before Chief Judge William E. Smith: Status Conference held on 3/6/2015; counsel present: C. Geller, E. Banaszark; N. Kelly, R. Partington, K. Kelly, A. Yaffee. (Jackson, Ryan) (Entered: 03/09/2015)
TEXT ORDER: Defendants' Motion for Leave to File Interlocutory Appeal is due on or before 3/27/15; Plaintiff's Objection is due on or before 4/13/15; Defendants' Reply is due on 4/20/15. So Ordered by Chief Judge William E. Smith on 3/9/15. (Jackson, Ryan) (Entered: 03/09/2015)
26 PRETRIAL SCHEDULING ORDER: Factual Discovery to be completed by 10/20/2015; All Expert Discovery to be completed by 4/11/2016; Dispositive Motions due by 5/11/2016; Pretrial Memorandum due 30 days after decision on any pending motion, or if no motions are pending, by 5/20/16; and additional dates as ordered in this Pretrial Scheduling Order. So Ordered by Chief Judge William E. Smith on 3/10/15. (Jackson, Ryan) (Entered: 03/10/2015)
NOTICE of Hearing: Telephone Conference set for 3/19/2015 04:00 PM before Magistrate Judge Lincoln D. Almond. The Court will initiate the call. Counsel to participate: Geller, Banaszak, N. Kelly, Partington, Yaffee, K. Kelly. (Noel, Jeannine) (Entered: 03/11/2015)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference held on 3/19/2015. (Noel, Jeannine) (Entered: 03/20/2015)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 7 of 16

03/20/2015
03/26/2015 03/27/2015 03/31/2015 04/07/2015 04/09/2015 04/10/2015 04/10/2015 04/20/2015 04/24/2015 04/27/2015 05/04/2015 05/06/2015 05/18/2015 05/19/2015
05/29/2015 06/02/2015

27 SETTLEMENT CONFERENCE ORDER AND NOTICE OF Settlement Conference set for 5/20/2015 02:00 PM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond. Telephone Conference set for 5/6/2015 04:00 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call. So Ordered by Magistrate Judge Lincoln D. Almond on 3/20/2015. (Noel, Jeannine) (Entered: 03/20/2015)
28 NOTICE of Appearance by Raheemah F. Abdulaleem on behalf of United States of America (Abdulaleem, Raheemah) (Entered: 03/26/2015)
29 MOTION for Leave to Appeal WITH SUPPORTING MEMO filed by All Defendants. Responses due by 4/13/2015 (Attachments: # 1 Supporting Memorandum)(Kelly, Neil) (Entered: 03/27/2015)
30 Joint MOTION for Protective Order filed by All Plaintiffs. Responses due by 4/17/2015 (Attachments: # 1 Text of Proposed Order)(Abdulaleem, Raheemah) (Entered: 03/31/2015)
31 SUPPLEMENTAL MEMORANDUM/EXHIBIT IN SUPPORT by All Defendants in support of 29 MOTION for Leave to Appeal . (Kelly, Neil) Modified on 5/22/2015: edited document title (Jackson, Ryan). (Entered: 04/07/2015)
32 Consent MOTION for an Extension of Time to File Response/Reply as to 29 MOTION for Leave to Appeal filed by United States of America. Responses due by 4/27/2015 (Abdulaleem, Raheemah) (Entered: 04/09/2015)
TEXT ORDER granting 32 Motion for Extension of Time to File Response to 29 MOTION for Leave to Appeal; Responses due by 4/20/2015. So Ordered by Chief Judge William E. Smith on 4/10/15. (Jackson, Ryan) (Entered: 04/10/2015)
33 ORDER granting 30 Motion for Protective Order. So Ordered by Chief Judge William E. Smith on 4/10/15. (Jackson, Ryan) (Entered: 04/10/2015)
34 RESPONSE in Opposition re 29 MOTION for Leave to Appeal WITH SUPPORTING MEMO filed by United States of America. (Abdulaleem, Raheemah) (Entered: 04/20/2015)
35 MOTION for an Extension of Time to File Response/Reply as to 34 Response in Opposition to Motion filed by All Defendants. Responses due by 5/11/2015 (Kelly, Neil) (Entered: 04/24/2015)
TEXT ORDER granting 35 Motion for Extension of Time to File Reply re: 29 MOTION for Leave to Appeal; Replies due by 5/4/2015. So Ordered by Chief Judge William E. Smith on 4/27/15. (Jackson, Ryan) (Entered: 04/27/2015)
36 REPLY to Response to Motion re 34 Response in Opposition to Motion filed by All Defendants. (Kelly, Neil) (Entered: 05/04/2015)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference with Attorneys Abdulaleem, Banaszak, Geller, Kathleen Kelly and Neil Kelly held on 5/6/2015. (Noel, Jeannine) (Entered: 05/06/2015)
37 Consent MOTION to Continue Settlement Conference filed by United States of America. Responses due by 6/4/2015 (Geller, Clare) (Entered: 05/18/2015)
TEXT ORDER granting 37 Motion to Continue; Set/Reset Hearings:Settlement Conference set for 5/20/2015 02:00 PM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond has been rescheduled ( Settlement Conference set for 6/4/2015 02:00 PM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond.). So Ordered by Magistrate Judge Lincoln D. Almond on 5/19/15. (Saucier, Martha) (Entered: 05/19/2015)
38 Process Return and Receipt Executed by United States Marshal (Urizandi, Nisshy) (Entered: 05/29/2015)
39 NOTICE of Appearance by David N. Reese on behalf of United States of America (Reese, David) (Entered: 06/02/2015)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 8 of 16

06/04/2015 06/05/2015 06/12/2015 06/15/2015
06/17/2015 07/01/2015
07/08/2015 07/08/2015
08/11/2015
08/13/2015 08/31/2015
09/08/2015 09/21/2015 09/23/2015 10/01/2015 10/01/2015
11/06/2015

Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Settlement Conference held on 6/4/2015. (Noel, Jeannine) (Entered: 06/05/2015)
NOTICE of Hearing: Telephone Conference set for 6/16/2015 04:30 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call. (Noel, Jeannine) (Entered: 06/05/2015)
40 Joint MOTION to Amend/Correct Protective Order filed by United States of America. Responses due by 6/29/2015 (Attachments: # 1 Text of Proposed Order Amended Protective Order)(Banaszak, Elizabeth) (Entered: 06/12/2015)
RESCHEDULING NOTICE of Hearing: Telephone Conference RESCHEDULED for 7/8/2015 04:00 PM before Magistrate Judge Lincoln D. Almond. MOVED FROM 6/16/2015 PER LETTER FROM ATTY KELLY. The court will initiate the call. (Noel, Jeannine) (Entered: 06/15/2015)
41 AMENDED PROTECTIVE ORDER granting 40 Joint MOTION to Amend/Correct Protective Order. So Ordered by Magistrate Judge Lincoln D. Almond on 6/17/2015. (Noel, Jeannine) (Entered: 06/17/2015)
42 STIPULATION that Defendants may have up to and including July 30, 2015, within which to answer or otherwise respond to Plaintiffs First Request for Production of Documents and Plaintiffs First Set of Interrogatories. by All Defendants. (Kelly, Neil) (Entered: 07/01/2015)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference held on 7/8/2015. (Chambers at 4:00.) (Saucier, Martha) (Entered: 07/08/2015)
NOTICE of Hearing: Telephone Conference set for 8/11/2015 04:00 PM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond with counsel of record. Court to initiate the call. (Saucier, Martha) (Entered: 07/08/2015)
Set/Reset Hearings: Telephone Conference set for 8/11/2015 04:00 PM in before Magistrate Judge Lincoln D. Almond has been rescheduled at request of counsel. Telephone Conference RESCHEDULED for 8/31/2015 04:00 PM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond with all counsel of record. Court to initiate the call. (Saucier, Martha) (Entered: 08/11/2015)
43 NOTICE of Appearance by Kunti D. Salazar on behalf of United States of America (Salazar, Kunti) (Entered: 08/13/2015)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference with Attorneys Banaszak, Reese, Salazar, Dingley, Yaffee, Kathleen Kelly and Neil Kelly held on 8/31/2015. (Noel, Jeannine) (Entered: 08/31/2015)
44 Process Return and Receipt Executed by United States Marshal, SUBPOENA Returned Executed as to Carl Swander. (Urizandi, Nisshy) (Entered: 09/08/2015)
45 ORDER denying 29 Motion for Leave to Appeal. So Ordered by Chief Judge William E. Smith on 9/21/2015. (Jackson, Ryan) (Entered: 09/21/2015)
46 MOTION for an Extension of Time to Complete Discovery (Unopposed) filed by United States of America. Responses due by 10/13/2015 (Banaszak, Elizabeth) (Entered: 09/23/2015)
TEXT ORDER granting 46 Motion for Extension of Time to Complete Discovery. So Ordered by Chief Judge William E. Smith on 10/1/15. (Jackson, Ryan) (Entered: 10/01/2015)
Reset Deadlines: Factual Discovery to close by 1/20/2016; All Expert Discovery to close by 7/11/2016; Dispositive Motions due by 8/11/2016; Pretrial Memorandum due 30 days after decision on any pending motion, or if no motions are pending, by 8/22/2016. (Jackson, Ryan) (Entered: 10/01/2015)
47 STIPULATION Regarding Applicant Flow Data by United States of America. (Banaszak, Elizabeth) (Entered: 11/06/2015)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 9 of 16

11/16/2015 11/17/2015 11/25/2015 11/25/2015 12/01/2015 12/02/2015 12/02/2015 12/04/2015 12/04/2015 12/07/2015
12/07/2015
12/08/2015 02/10/2016

NOTICE of Hearing: Telephone Conference set for 11/30/2015 04:30 PM before Magistrate Judge Lincoln D. Almond. The court will initiate the call. (Noel, Jeannine) (Entered: 11/16/2015)
HEARING CANCELLED − Telephone Conference CANCELLED for 11/30/2015 04:30 PM before Magistrate Judge Lincoln D. Almond. (Noel, Jeannine) (Entered: 11/17/2015)
48 MOTION to Compel The Rule 30(b)(1) Fact Deposition of Defendants' Witness Paul Kennedy And For An Expedited Ruling With Supporting Memo filed by United States of America. Responses due by 12/14/2015 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Salazar, Kunti) (Entered: 11/25/2015)
49 MOTION to Quash WITH SUPPORTING MEMO filed by State of Rhode Island, State of Rhode Island Department of Corrections. Responses due by 12/14/2015 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Supporting Memorandum)(Kelly, Neil) (Entered: 11/25/2015)
NOTICE of TELEPHONIC Hearing on Motion 49 MOTION to Quash , 48 MOTION to Compel The Rule 30(b)(1) Fact Deposition of Defendants' Witness Paul Kennedy And For An Expedited Ruling : TELEPHONIC Motion Hearing set for 12/7/2015 11:00 AM before Magistrate Judge Lincoln D. Almond. THE COURT WILL INITIATE THE CALL. (Noel, Jeannine) (Entered: 12/01/2015)
50 RESPONSE in Opposition re 48 MOTION to Compel The Rule 30(b)(1) Fact Deposition of Defendants' Witness Paul Kennedy And For An Expedited Ruling with supporting memo filed by State of Rhode Island, State of Rhode Island Department of Corrections. Replies due by 12/14/2015. (Attachments: # 1 Supporting Memorandum)(Kelly, Neil) (Entered: 12/02/2015)
51 RESPONSE in Opposition re 49 MOTION to Quash With Supporting Memo filed by United States of America. Replies due by 12/14/2015. (Attachments: # 1 Exhibit 1, United States' Rebuttal to Defendants' Exh. E (Dkt. 49−5))(Banaszak, Elizabeth) (Entered: 12/02/2015)
52 REPLY to Response to Motion re 50 Response in Opposition to Motion, Reply in Support of United States' Motion to Compel With Supporting Memo filed by United States of America. (Banaszak, Elizabeth) (Entered: 12/04/2015)
53 REPLY MEMORANDUM re 49 MOTION to Quash . (Kelly, Neil) (Entered: 12/04/2015)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Motion Hearing held on 12/7/2015 re 48 MOTION to Compel The Rule 30(b)(1) Fact Deposition of Defendants' Witness Paul Kennedy And For An Expedited Ruling filed by United States of America, 49 MOTION to Quash filed by State of Rhode Island, State of Rhode Island Department of Corrections (Banaszak, Geller, Reese, Salazar, Kelly, Yaffee) Argument; Court takes matter under advisement; Order to follow (Courtroom A at 11:06 am.) (Noel, Jeannine) (Entered: 12/07/2015)
TEXT ORDER granting in part and denying in part 48 Motion to Compel; granting in part and denying in part 49 Motion to Quash. Both Motions are GRANTED in part and DENIED in part as follow: The fact deposition of Mr. Kennedy by Plaintiff may go forward but shall be limited in duration to four (4) hours and he shall not be asked any of the same questions that he was asked as a Rule 30(b)(6) designee. So Ordered by Magistrate Judge Lincoln D. Almond on 12/7/2015. (Noel, Jeannine) (Entered: 12/07/2015)
54 NOTICE of Appearance by Mariana E. Ormonde on behalf of All Defendants (Ormonde, Mariana) (Entered: 12/08/2015)
55 MOTION to Compel 30(b)(6) Testimony from Plaintiff United States and for Expedited Ruling WITH SUPPORTING MEMO filed by State of Rhode Island, State of Rhode Island Department of Corrections. Responses due by 2/29/2016 (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Kelly, Neil) (Entered: 02/10/2016)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 10 of 16

02/11/2016 02/17/2016 02/22/2016 02/23/2016
02/23/2016
03/04/2016 03/07/2016 03/08/2016 03/10/2016 03/11/2016

NOTICE of TELEPHONIC Hearing on Motion 55 MOTION to Compel 30(b)(6) Testimony from Plaintiff United States and for Expedited Ruling : TELEPHONIC Motion Hearing set for 2/23/2016 11:00 AM before Magistrate Judge Lincoln D. Almond. PARTIES WILL RECEIVE CALL IN INSTRUCTIONS VIA EMAIL. (Noel, Jeannine) (Entered: 02/11/2016)
56 RESPONSE in Opposition re 55 MOTION to Compel 30(b)(6) Testimony from Plaintiff United States and for Expedited Ruling WITH SUPPORTING MEMO filed by United States of America. Replies due by 2/29/2016. (Attachments: # 1 Exhibit Declaration of Principal Deputy AAG Gupta)(Banaszak, Elizabeth) (Entered: 02/17/2016)
57 REPLY to Response to Motion re 56 Response in Opposition to Motion, filed by State of Rhode Island, State of Rhode Island Department of Corrections. (Attachments: # 1 Exhibit F)(Yaffee, Ariele) (Entered: 02/22/2016)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: TELEPHONIC Motion Hearing held on 2/23/2016 re 55 MOTION to Compel 30(b)(6) Testimony from Plaintiff United States and for Expedited Ruling filed by State of Rhode Island, State of Rhode Island Department of Corrections (Reese, Salazar, Banaszak, Geller, Yaffee, Kelly, Ormonde) All Counsel via phone; Argument; Court takes matter under advisement; Order to follow (Courtroom A at 11:08 am.) (Noel, Jeannine) (Entered: 02/23/2016)
TEXT ORDER granting in part and denying in part 55 Motion to Compel. Plaintiff shall produce a deponent(s) pursuant to Rule 30(b)(6) to testify on March 3, 2016 as to Topics 1, 2, 3, 4, 6, 7, and 8. Such questioning is, however, subject to good faith objection by Plaintiff's counsel and an instruction not to answer only when reasonably necessary to preserve any asserted privileges. When a privilege is asserted, Plaintiff's counsel shall identify the particular privilege on the record, and briefly describe the general nature of the allegedly privileged information that is being elicited by the question under objection to allow for later review and assessment of the privilege claim, if necessary. Plaintiff's objections to Topics 5, 9 and 10 are sustained and Defendants' Motion is DENIED as to those Topics. Finally, the deponent(s) may not be asked any questions regarding experts and their opinions that will be the subject of later disclosure pursuant to Rule 26(a)(2)(B) or are protected from disclosure under Rule 26(b)(4)(D). So Ordered by Magistrate Judge Lincoln D. Almond on 2/23/2016. (Noel, Jeannine) (Entered: 02/24/2016)
58 TRANSCRIPT ORDER Hearing on Motion to Compel for proceedings held on 2/23/2016 before Judge Almond.. (Yaffee, Ariele) (Entered: 03/04/2016)
59 TRANSCRIPT ORDER Hearing on Defendants' Motion to Compel for proceedings held on Feb. 23, 2016 before Judge Almond.. (Banaszak, Elizabeth) (Entered: 03/07/2016)
60 APPEAL OF MAGISTRATE JUDGE DECISION AND ORDER by State of Rhode Island, State of Rhode Island Department of Corrections Objection to Text Order dated 2/24/16. Replies due by 3/25/2016. (Attachments: # 1 Supporting Memorandum, # 2 Exhibit A)(Kelly, Neil) Modified on 3/10/2016: entry event title and response deadline (Jackson, Ryan). (Entered: 03/08/2016)
Notice of Correction re: 60 APPEAL OF MAGISTRATE JUDGE DECISION AND ORDER. (Jackson, Ryan) (Entered: 03/10/2016)
61 TRANSCRIPT of Motion to Compel Deposition Testimony, held on February 23, 2016, before Magistrate Judge Lincoln D. Almond. Court Reporter Denise P. Veitch, Telephone number 401−323−9337. 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 through PACER. NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion. For local policy and sample redaction request visit our website at www.rid.uscourts.gov and select Transcripts under the Case Information menu option. Redaction Request due 4/1/2016. Redacted Transcript Deadline set for 4/11/2016. Release of Transcript Restriction set for 6/9/2016. (Veitch, Denise) (Entered: 03/11/2016)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 11 of 16

03/16/2016 03/18/2016
03/25/2016 04/01/2016 04/08/2016 04/26/2016 04/26/2016 04/28/2016 05/09/2016 05/09/2016
06/09/2016
06/10/2016 06/20/2016 06/21/2016 06/23/2016

62 MOTION for an Extension of Time to Complete Discovery filed by State of Rhode Island, State of Rhode Island Department of Corrections. Responses due by 4/4/2016 (Kelly, Neil) (Entered: 03/16/2016)
TEXT ORDER granting 62 Motion for Extension of Time to Complete Discovery; Reset Deadlines: All Expert Discovery will close on 7/18/2016 (the remaining expert witness disclosures deadlines between the parties will each be extended by one week); Dispositive Motions due by 8/18/2016; Pretrial Memorandum due 30 days after decision on any pending motions, or if no motions are pending, by 8/29/2016. So Ordered by Chief Judge William E. Smith on 3/18/2016. (Jackson, Ryan) (Entered: 03/18/2016)
63 MEMORANDUM IN OPPOSITION by United States of America in opposition to 60 Response in Opposition, to Defendant's Appeal of Magistrate's Order. (Attachments: # 1 Exhibit A, Hearing Transcript, # 2 Exhibit B, Text Order, # 3 Exhibit C, Deposition Transcript Excerpts)(Banaszak, Elizabeth) (Entered: 03/25/2016)
64 REPLY MEMORANDUM re 63 Memorandum in Opposition, State's Reply to Pltf's Opposition. (Yaffee, Ariele) (Entered: 04/01/2016)
REFERRED TO CHAMBERS OF JUDGE WILLIAM E. SMITH: 60 APPEAL OF MAGISTRATE JUDGE DECISION AND ORDER by State of Rhode Island, State of Rhode Island Department of Corrections Objection to Text Order dated 2/24/16. (Jackson, Ryan) (Entered: 04/08/2016)
NOTICE of Hearing re: 60 Appeal of Magistrate Judge Decision and Order scheduled for 6/2/2016 at 10:00 AM in Courtroom 2 before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 04/26/2016)
Reset Hearings re: 60 Appeal of Magistrate Judge Decision and Order RE−SCHEDULED for 6/9/2016 at 10:00 AM in Courtroom 2 before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 04/26/2016)
65 Joint MOTION for an Extension of Time to Complete Discovery filed by United States of America. Responses due by 5/16/2016 (Banaszak, Elizabeth) (Entered: 04/28/2016)
TEXT ORDER granting 65 Motion for Extension of Time to Complete Discovery. So Ordered by Magistrate Judge Lincoln D. Almond on 5/9/2016. (Saucier, Martha) (Entered: 05/09/2016)
66 AMENDED PRETRIAL SCHEDULING ORDER: Expert Discovery close by 9/23/2016. Dispositive Motions due by 10/18/2016. Pretrial Memorandum due 30 days after a decision on any dispositive motion or, if no dispositive motions are filed by 10/31/2016.. So Ordered by Magistrate Judge Lincoln D. Almond on 5/9/2016. (Saucier, Martha) (Entered: 05/09/2016)
Minute Entry for proceedings held before Chief Judge William E. Smith: Motion Hearing held on 6/9/2016 re 55 MOTION to Compel 30(b)(6) Testimony from Plaintiff United States and for Expedited Ruling filed by State of Rhode Island Department of Corrections, State of Rhode Island. Banaszak, Salazar, Myrus, Kelly, Yaffe) Court addresses. Counsel ID themselves for the record. Arguments heard. Court takes matter under advisement and will issue a ruling at a later date. Recess. (Court Reporter Anne Clayton in Courtroom 2 at 10:10 a.m.) (Urizandi, Nisshy) (Entered: 06/10/2016)
67 NOTICE by United States of America Of Withdrawal of Counsel Elizabeth Banaszak (Banaszak, Elizabeth) (Entered: 06/10/2016)
68 Joint MOTION for an Extension of Time to Complete Discovery filed by United States of America. Responses due by 7/7/2016 (Salazar, Kunti) (Entered: 06/20/2016)
69 TRANSCRIPT ORDER Hearing on Defendants' Appeal of Magistrate Judge Order for proceedings held on 6/9/2016 before Judge Smith.. (Salazar, Kunti) (Entered: 06/21/2016)
70 NOTICE of Appearance by Emily Adams Given on behalf of United States of America (Given, Emily) (Entered: 06/23/2016)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 12 of 16

06/27/2016 06/27/2016
07/18/2016
08/10/2016 08/19/2016 08/23/2016 09/12/2016 10/25/2016 11/04/2016 11/04/2016 11/04/2016 11/30/2016 12/07/2016 12/07/2016
12/14/2016

71 AMENDED SCHEDULING ORDER; Order granting 68 Joint Motion for Extension of Discovery Deadlines. So Ordered by Chief Judge William E. Smith on 6/24/2016. (Jackson, Ryan) (Entered: 06/27/2016)
Reset Deadlines: All Expert Discovery will close on 10/7/2016; Dispositive Motions due by 11/1/2016 (Plaintiff's Motion for Summary Judgment by 11/1/16; Defendants' Objection and Cross−Motion by 12/6/16; Plaintiff's Reply and Objection by 1/6/17; Defendants' Reply by 1/27/17); Pretrial Memorandum due 30 days after decision on any pending motions, or if no motions are pending, by 11/14/2016(Jackson, Ryan) (Entered: 06/27/2016)
72 TRANSCRIPT of Appeal of Magistrate Judge's Opinion and Order held on June 9, 2016, before Chief Judge William E. Smith. Court Reporter Anne M. Clayton, Telephone number 401−255−2310. 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 through PACER. NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion. For local policy and sample redaction request visit our website at www.rid.uscourts.gov and select Transcripts under the Case Information menu option. Redaction Request due 8/8/2016. Redacted Transcript Deadline set for 8/18/2016. Release of Transcript Restriction set for 10/17/2016. (Clayton, Anne) (Entered: 07/18/2016)
73 MOTION for an Extension of Time to Complete Discovery filed by State of Rhode Island, State of Rhode Island Department of Corrections. Responses due by 8/29/2016 (Kelly, Neil) (Entered: 08/10/2016)
74 ORDER granting 73 Motion for Extension of Time to Complete Discovery. So Ordered by Chief Judge William E. Smith on 8/17/2016. (Jackson, Ryan) (Entered: 08/19/2016)
75 TRANSCRIPT ORDER for proceedings held on 06/09/2016 before Judge William E. Smith.. (Kelly, Neil) (Entered: 08/23/2016)
76 ORDER GRANTING IN PART, DENYING IN PART 60 APPEAL OF MAGISTRATE JUDGE ORDER filed by State of Rhode Island Department of Corrections, State of Rhode Island. So Ordered by Chief Judge William E. Smith on 9/12/2016. (Jackson, Ryan) (Entered: 09/12/2016)
77 MOTION for an Extension of Time Unopposed Motion to Extend Time filed by All Defendants. Responses due by 11/14/2016 (Kelly, Neil) (Entered: 10/25/2016)
NOTICE of Hearing: Telephone Conference scheduled for Friday 11/4/2016 at 2:45 PM before Chief Judge William E. Smith; this office will initiate the call. (Jackson, Ryan) (Entered: 11/04/2016)
TEXT ORDER granting 77 Motion for Extension of Time. So Ordered by Chief Judge William E. Smith on 11/4/2016. (Jackson, Ryan) (Entered: 11/04/2016)
Minute Entry for proceedings held before Chief Judge William E. Smith: Telephone Conference held on 11/4/2016; counsel present: D. Reese, C. Geller, K. Salazar, E. Given; N. Kelley, Arielle Yaffee (Jackson, Ryan) (Entered: 11/04/2016)
78 Joint MOTION for an Extension of Time to Complete Discovery filed by State of Rhode Island. Responses due by 12/19/2016 (Kelly, Neil) (Entered: 11/30/2016)
TEXT ORDER granting 78 Joint Motion for Extension of Time to Complete Discovery. So Ordered by Chief Judge William E. Smith on 12/7/2016. (Jackson, Ryan) (Entered: 12/07/2016)
Reset Deadlines: Plaintiff's Rebuttal Expert Disclosures shall be made by 1/27/2017; Defendant's Rebuttal Expert Disclosures shall be made by 3/17/2017; All Expert Discovery to close by 4/14/2017; a conference will be held prior to the end of Expert Discovery to determine a schedule for the filing of Dispositive Motions (Jackson, Ryan) (Entered: 12/07/2016)
NOTICE of Hearing: Telephone Conference set for 12/20/2016 at 09:30 AM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond. The court will initiate the call. (Noel, Jeannine) (Entered: 12/14/2016)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 13 of 16

12/20/2016 12/20/2016 12/21/2016 01/06/2017 01/06/2017 02/06/2017 02/06/2017 03/13/2017 03/27/2017 03/27/2017 03/28/2017 04/20/2017 09/18/2017
09/26/2017 09/26/2017 09/26/2017

Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference held on 12/20/2016 (Reese, Kelly, Yaffee). (Noel, Jeannine) (Entered: 12/20/2016)
NOTICE of Hearing: Telephone Conference set for 1/9/2017 at 09:30 AM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond. The court will initiate the call. (Noel, Jeannine) (Entered: 12/20/2016)
TEXT ORDER Staying all current deadlines for 30 days. So Ordered by Chief Judge William E. Smith on 12/21/2016. (Jackson, Ryan) (Entered: 12/21/2016)
HEARING CANCELLED re Notice of Hearing Telephone Conference set for 1/9/2017 at 09:30 AM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond has been cancelled. Court to reschedule. (Saucier, Martha) (Entered: 01/06/2017)
NOTICE of Hearing: Telephone Conference set for 2/6/2017 at 09:30 AM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond. Court to initiate the call.(Saucier, Martha) (Entered: 01/06/2017)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference held on 2/6/2017. (Noel, Jeannine) (Entered: 02/06/2017)
TEXT ORDER STAYING CASE and all current deadlines for 60 days. So Ordered by Chief Judge William E. Smith on 2/6/2017. (Jackson, Ryan) (Entered: 02/06/2017)
79 SETTLEMENT CONFERENCE ORDER AND NOTICE OF Settlement Conference set for 3/31/2017 at 09:30 AM − 03:00 PM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond. So Ordered by Magistrate Judge Lincoln D. Almond on 3/13/2017. (Noel, Jeannine) (Entered: 03/13/2017)
HEARING CANCELLED − Settlement Conference CANCELLED for 3/31/2017 at 09:30 AM − 03:00 PM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond. (Noel, Jeannine) (Entered: 03/27/2017)
RESCHEDULING NOTICE of Hearing: Settlement Conference RESCHEDULED for 4/20/2017 at 10:00 AM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond. MOVED FROM 3/31/2017. (Noel, Jeannine) (Entered: 03/27/2017)
TEXT ORDER STAYING CASE and all current deadlines an additional 30 days from 4/7/17, up to and including 5/7/17. So Ordered by Chief Judge William E. Smith on 3/28/2017. (Jackson, Ryan) (Entered: 03/28/2017)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Settlement Conference held on 4/20/2017. (Noel, Jeannine) (Entered: 04/21/2017)
80 Joint MOTION for Settlement Approval and Entry of the Settlement Agreement and Schedule Fairness Hearing filed by United States of America. Responses due by 10/2/2017. (Attachments: # 1 Exhibit A− Settlement Agreement, # 2 Appendix A, # 3 Appendix B, # 4 Appendix C, # 5 Appendix D, # 6 Appendix E, # 7 Supporting Memorandum for Joint Motion to Provisionally Enter the Settlement Agreement and Schedule Fairness Hearing, # 8 Affidavit of Dr. Bernard R. Siskin, # 9 Affidavit of Dr. David P. Jones, # 10 Text of Proposed Order)(Salazar, Kunti) (Entered: 09/18/2017)
NOTICE of Hearing: In Chambers Conference re: 80 Joint MOTION for Settlement Approval and Entry of the Settlement Agreement scheduled for Thursday 10/5/2017 at 2:00 PM in Chambers before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 09/26/2017)
Reset Hearings re: Notice of In Chambers Conference RE−SCHEDULED for MONDAY 10/2/2017 at 11:30 AM in Chambers before Chief Judge William E. Smith; conference previously scheduled for 10/5/17 is hereby CANCELLED. (Jackson, Ryan) (Entered: 09/26/2017)
81 NOTICE by United States of America of Withdrawal of Counsel David Reese (Reese, David) (Entered: 09/26/2017)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 14 of 16

10/02/2017 10/20/2017 10/20/2017 11/17/2017 11/28/2017
12/06/2017 12/19/2017
01/22/2018 01/26/2018
01/26/2018 02/02/2018 02/06/2018 02/07/2018

Minute Entry for proceedings held before Chief Judge William E. Smith: In Chambers Conference held on 10/2/2017; counsel present: C. Geller, K. Salazar; N. Kelly (Jackson, Ryan) (Entered: 10/03/2017)
82 ORDER Entering 80 Motion for Provisional Settlement Agreement. So Ordered by Chief Judge William E. Smith on 10/20/2017. (Jackson, Ryan) (Entered: 10/20/2017)
NOTICE of Hearing: Fairness Hearing scheduled for Wednesday 2/7/2018 at 11:00 AM in Courtroom 3 before Chief Judge William E. Smith. (Jackson, Ryan) (Entered: 10/20/2017)
83 NOTICE of Appearance by Shayna M. Bloom on behalf of United States of America (Bloom, Shayna) (Entered: 11/17/2017)
NOTICE of Hearing: Telephone Conference re: Fairness Hearing scheduled for Wednesday 12/6/2017 at 11:00 AM before Chief Judge William E. Smith; this office will initiate the call and counsel should provide Case Manager Ryan Jackson with direct−dial phone numbers via email at least 24 hours prior to the time of the conference. (Jackson, Ryan) (Entered: 11/28/2017)
Minute Entry for proceedings held before Chief Judge William E. Smith: Telephone Conference held on 12/6/2017; counsel on call: K. Salazar; N. Kelly, A. Yaffee (Jackson, Ryan) (Entered: 12/06/2017)
84 RESPONSE In Opposition to 80 Joint MOTION for Settlement Approval and Entry of the Settlement Agreement and Schedule Fairness Hearing Objection of Jayson Badillo to Joint Motion for Entry of Settlement Agreement filed by Jayson Badillo. Replies due by 12/26/2017. (Attachments: # 1 Affidavit Affidavit of Jayson Badillo, # 2 Supporting Memorandum Memorandum of Jayson Badillo in Support of Objection)(Lyons, Thomas) (Entered: 12/19/2017)
NOTICE of Hearing: Telephone Conference set for 1/26/2018 at 04:00 PM in Magistrate Judge Almond Chambers − Room P−208 before Magistrate Judge Lincoln D. Almond. The Court will initiate the call. Counsel to participate: Neil Kelly and Kunti Salazar. (Noel, Jeannine) (Entered: 01/22/2018)
85 Joint MOTION for Final Approval of the Settlement Agreement filed by United States of America. Responses due by 2/9/2018. (Attachments: # 1 Supporting Memorandum for Final Approval of the Settlement Agreement and Responses to Objections, # 2 Proposed Order, # 3 Exhibit A−1 Objections, # 4 Exhibit A−2 Objections, # 5 Exhibit A−3 Objections, # 6 Exhibit A−4 Objections, # 7 Exhibit B Declaration of Eric Schachter, # 8 Exhibit C Declaration of Leann Anderson, # 9 Exhibit D Objector List)(Salazar, Kunti) (Attachment 6 replaced on 2/9/2018) (Noel, Jeannine). (Entered: 01/26/2018)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Telephone Conference with Counsel: Neil Kelly, Kunti Salazar and Shayna Bloom held on 1/26/2018. (Noel, Jeannine) (Entered: 01/29/2018)
86 NOTICE of Appearance by Thomas W. Lyons, III on behalf of Jayson Badillo (Lyons, Thomas) (Entered: 02/02/2018)
87 SUPPLEMENTAL MEMORANDUM by United States of America in support of 85 Joint MOTION for Final Approval of the Settlement Agreement . (Attachments: # 1 Exhibit A − Objection)(Bloom, Shayna) (Entered: 02/06/2018)
Minute Entry for proceedings held before Magistrate Judge Lincoln D. Almond: Fairness Hearing held on 2/7/2018 re 85 Joint MOTION for Final Approval of the Settlement Agreement filed by United States of America (Salazar, Geller, Bloom, N. Kelly, K. Kelly, Lyons) Spanish Interp. for objector/interested party − J. Kleinberg; Five objectors/interested parties present; Atty Salazar addresses the Court and gives a presentation with the assistance of Powerpoint; Atty N. Kelly addresses the Court; Two objectors/interested parties address the court; Atty Lyons addresses the Court on the behalf of an objector who is not present; Recess; Reconvene; Atty N. Kelly addresses the Court; Atty Salazar addresses the Court; Atty Lyons addresses the Court; Atty Salazar addresses the Court; Court addresses parties; Court to issue R&R (Court Reporter Lisa Schwam in Courtroom 3 at 11:12 am.) (Noel, Jeannine) (Entered: 02/07/2018)

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 15 of 16

02/08/2018
02/12/2018 02/13/2018 02/13/2018 02/19/2018 02/19/2018 02/20/2018
02/25/2018 03/05/2018 03/09/2018 05/10/2018 05/11/2018 05/11/2018 05/13/2018

88 REPORT AND RECOMMENDATIONS recommending that Chief Judge William E. Smith overrule all of the objections and GRANT the parties' Joint Motion for Final Approval of Settlement Agreement (ECF Doc. No. 85) by ENTERING the proposed ORDER (ECF Doc. No. 85−2) presented by the parties. 85 Joint MOTION for Final Approval of the Settlement Agreement filed by United States of America. Objections to R&R due by 2/22/2018. So Ordered by Magistrate Judge Lincoln D. Almond on 2/8/2018. (Noel, Jeannine) (Main Document 88 replaced on 3/6/2018) (Noel, Jeannine). (Entered: 02/09/2018)
89 TRANSCRIPT ORDER for proceedings held on 02/07/2018 before Judge Almond. Expedited Transcript selected. Transcript to be delivered within 7 calendar days.. (Lyons, Thomas) (Entered: 02/12/2018)
90 TRANSCRIPT ORDER for proceedings held on 2/7/2018 before Judge Almond. Expedited Transcript selected. Transcript to be delivered within 7 calendar days.. (Salazar, Kunti) (Entered: 02/13/2018)
91 TRANSCRIPT ORDER ACKNOWLEDGMENT Entered re: 89 Transcript Order, 90 Transcript Order. Court Reporter/Transcriber: Lisa Schwam. Transcript due by 2/20/2018. (Dias, Jennifer) (Entered: 02/13/2018)
92 NOTICE of Appearance by Rhiannon S. Huffman on behalf of Jayson Badillo (Huffman, Rhiannon) (Entered: 02/19/2018)
93 OBJECTION to 88 Report and Recommendations filed by Jayson Badillo. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Lyons, Thomas) (Entered: 02/19/2018)
94 TRANSCRIPT of Fairness hearing held on 02/7/2018 before Judge Almond. Court Reporter/Transcriber Lisa Schwam, Telephone number 401−752−7128. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion. For local policy and sample redaction request visit our website at www.rid.uscourts.gov and select Transcripts under the Case Information menu option. Redaction Request due 3/13/2018. Redacted Transcript Deadline set for 3/23/2018. Release of Transcript Restriction set for 5/21/2018. (Schwam, Lisa) (Main Document 94 replaced on 2/27/2018) (Smith, Rana). (Entered: 02/20/2018)
95 RESPONSE In Opposition to 85 Joint MOTION for Final Approval of the Settlement Agreement filed by Jayson Badillo. Replies due by 3/5/2018. (Lyons, Thomas) (Entered: 02/25/2018)
96 RESPONSE IN OPPOSITION by United States of America re 93 Objection to Report and Recommendations (filed jointly with Defendants). (Salazar, Kunti) (Entered: 03/05/2018)
97 OBJECTION to 88 Report and Recommendations Reply to Respecting Objection filed by Jayson Badillo. (Attachments: # 1 Exhibit Exhibit 5)(Huffman, Rhiannon) (Entered: 03/09/2018)
98 MOTION to Withdraw filed by All Defendants. Responses due by 5/24/2018. (Yaffee, Ariele) (Entered: 05/10/2018)
TEXT ORDER granting 98 Motion to Withdraw as Attorney by Ariele Yaffee. So Ordered by Chief Judge William E. Smith on 5/11/2018. (Jackson, Ryan) (Entered: 05/11/2018)
99 ORDER granting 85 Joint MOTION for Final Approval of the Settlement Agreement; adopting 88 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 5/11/2018. (Jackson, Ryan) (Entered: 05/11/2018)
100 NOTICE OF APPEAL by Jayson Badillo as to 99 Order on Motion for Miscellaneous Relief, Order on Report and Recommendations ( filing fee paid $ 505.00, receipt number 0103−1214779 )

Case: 1:14-cv-78 As of: 11/26/2018 02:12 PM EST 16 of 16

05/16/2018
05/16/2018 10/29/2018
10/31/2018
11/01/2018 11/01/2018 11/08/2018

NOTICE TO COUNSEL: Counsel should register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf/. Counsel should also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf Appeal Record due by 5/21/2018. (Lyons, Thomas) (Entered: 05/13/2018)
101 CLERK'S CERTIFICATE AND APPELLATE COVER SHEET: Abbreviated record on appeal consisting of notice of appeal, order(s) being appealed, and a copy of the district court docket report transmitted to the U.S. Court of Appeals for the First Circuit in accordance with 1st Cir. R. 11.0(b). 100 Notice of Appeal. (Attachments: # 1 Record on Appeal)(Potter, Carrie) (Entered: 05/16/2018)
USCA Case Number 18−1462 for 100 Notice of Appeal. (Jackson, Kerrie) (Entered: 05/16/2018)
NOTICE of Hearing: Telephone Conference scheduled for Wednesday 10/31/2018 at 1:30 PM before Chief Judge William E. Smith; this office will initiate the call and counsel should provide their direct−dial phone numbers to Case Manager Ryan Jackson via email, at least 24 hours prior to the conference call. (Jackson, Ryan) (Entered: 10/29/2018)
Reset Hearings re: Notice of Telephone Conference RE−SCHEDULED to THURSDAY 11/1/2018 at 10:00 AM before Chief Judge William E. Smith; Telephone Conference previously scheduled for Wednesday 10/31/2018 at 1:30 PM before Chief Judge William E. Smith is hereby CANCELLED; this office will initiate the call (Jackson, Ryan) (Entered: 10/31/2018)
102 ORDER TO STAY PROCEEDINGS PENDING APPEAL. So Ordered by Chief Judge William E. Smith on 11/1/2018. (Jackson, Ryan) (Entered: 11/01/2018)
Minute Entry for proceedings held before Chief Judge William E. Smith: Telephone Conference held on 11/1/2018; counsel on call: K. Salazar; N. Kelly. (Jackson, Ryan) (Entered: 11/01/2018)
103 JUDGMENT of the U.S. Court of Appeals for the First Circuit entered as to 100 Notice of Appeal,, filed by Jayson Badillo: As Badillo is not a party, is not bound by the settlement, and did not seek leave to intervene in the district court despite having had an opportunity to do so, we conclude that we lack jurisdiction to hear the appeal. The motion to dismiss is granted. (McGuire, Vickie) (Entered: 11/08/2018)