*This post is part of a series on Isaac v. Duke, a federal complaint filed with OFCCP.

Per 41 C.F.R. § 60-300.61(e), Isaac wrote the Office of Federal Contracts Compliance Programs’ regional director on October 25, 2017 to request they reconsider the determination in his case against Duke University. After reviewing many of the transcripts and the OFCCP enforcement manual (called the “FCCM”), he found 19 different violations that undermine the veracity of their findings.

As part of the request for reconsideration, Isaac asked that his case be reconsidered as a “Continuing Violation,” rather than as isolated incidents, because Duke University has maintained systemic discriminatory policies which create disparate impact on veterans. This culture was acknowledged by the University as a “problem” as early as 2009, when the Senior Vice President for Student Affairs promised to change policies and practices at Duke following the suicide of a student veteran.

Here are the violations Isaac found and reported to the OFCCP;

A.   Multiple violations of the FCCM occurred

  1. FCCM § 2M00.b (p.103) – Multiple respondents were not interviewed, but no note in the case file indicates reasons why.
  2. FCCM § 2M00.e (p.104) and § 6G03.d-f (p.216) – Case file suggests that university-retained counsel was present for multiple interviews, but their name and title does not appear on the documentation of the interview and there is no indication that the compliance officer informed interviewees that in those cases they spoke for the University.
    1. There are multiple instances recorded in interview notes in which the representative “speaks for, influences, or corrects” the interviewee.
    2. At the time of the Registrar’s interview, she was not an employee and yet the University provided her legal representation.
  3. FCCM § 6C03.b7 (p.197) and § 6F01.a (p.208) – Field Office failed to identify documents from similar complaint investigations (ADA violation) against the university; in this case the same Ogletree Deakins attorney represented the University against plaintiff Bradley Elmendorf in a case still being adjudicated the same year Isaac filed his complaint.
  4. FCCM § 6C06 (p.198) – Field Office exceeded the outer limits of the timeliness standard, of 180 days, by 102 days, without any notice sent to claimant.
  5. FCCM § 6J01.a (p.223) – Isaac was denied the “opportunity, prior to the completion of the investigation, to introduce new or previously unconsidered evidence.” The Field Office issued their Notice of Results of Investigation (NORI) before the ten-day window they offered to him closed, and then did not take any of the information he supplied into consideration.

B.   A review was conducted rather than an investigation

OFCCP has not fulfilled its statutory obligations under 41 CFR §60-300.61(d) 

  1. The Field Office solicited data from other local agencies (NC Deptartment of Commerce, EEOC Area Director, & Department of Labor VETS office in Atlanta) identifying their action as a “compliance evaluation,” not as an investigation.
  2. On site interviews were conducted by a “compliance officer,” not by an investigator or other licensed professional obligated to be familiar with and apply pertinent legal standards.
  3. Compliance Officer did not pose interview questions with any attention to timeframe in which complaint was situated because it was an evaluation of current compliance rather than an investigation of historical fact; when asked nearly two months after the University revised its policy to include “veteran status,” the Senior Vice President could truthfully answer “Yes” to the present-tense question posed to him. The Complaint Officer was therefore not “primarily focused on the specific allegations” (FCCM § 6A, p.191) of the complaint, but on the overall compliance of the University at the time of the interview.
  4. Compliance Officer did not ask questions in a uniform investigative manner (see FCCM § 6G03.c, p.215); they failed to ask the Registrar and the Director any questions about EEO/Affirmative Action at all and failed to record any of the Assistant Vice President‘s responses to the same.
  5. Demonstrably false statements were accepted without question by the Field Office because it was not investigating past behavior or treatment of veterans.
  6. Multiple substantive allegations based on FCCM § 6E03 to 6E08 were not given any attention, including those of intimidation, failure to intervene in a hostile environment by the current Dean, and other discriminatory acts.

C.   NORI contains assessments not supported by evidence

  1. The NORI claimed “no evidence” that the Registrar interacted with other administrators about claimant’s protected activity, but this is an argument from silence. When asked “Did you discuss Mr. Isaac’s veteran status with any of your supervisors before making any hiring decisions. Please explain in details” she offered no response, meaning the NORI relied on a subjective assessment of her credibility without objective criteria to support its finding.
  2. The NORI claimed power over assignment of evening precepts was “outside Contractor’s control,” but no evidence supports this assertion. Multiple students had similar reservations about being assigned to an inconvenient and less desirable precept, which Isaac made clear to the field office.
    • These facts heighten the appearance of pretext in the university’s defense of 1) their failure to treat Isaac’s initial hiring on its merits or the duties created by their Affirmative Action Plan, evidenced by the Registrar’s false assertion, documented in the Office of Institutional Equity “Final Report,” that Isaac ‘didn’t have much teaching experience,’ and 2) their emotionally-motivated decision making, evidenced by the Registrar’s remark, documented in the OIE Final Report, that Isaac ‘should be happy Isaac got paid the same for half the work.’[1]
  3. The NORI claimed “no evidence” that the unannounced removal of flyers advertising a university-approved course a non-veteran faculty with a history of anti-military bias was discrimination. The field office took no apparent effort to interview the person, who also coerced a colleague, into advocating their removal. Nor did the field office interview the colleague despite his subsequent attempt to intimidate and coerce Isaac into removing them, describing his threat (a prima facie case of quid pro quo) to remove himself from the course unless Isaac took down the approved course flyers as having “asked” me to take them down.
  4. The NORI claimed “no evidence” that the Senior Vice President disclosing protected activity rose to unlawful harassment, but Isaac claimed it represented an materially adverse action within a pattern of harassment. His remark “Why are you asking about this now” served a rhetorical slight meant to undermine Isaac’s character and paint him in a negative light before his peers while removing any attention to the fact the Senior VP‘s own EEO training failed to meet the requirements of VEVRAA. Another person present that day remembered the interaction in this way;

I was surprised that Isaac asked him about veterans, since the presentation mostly covered racial bias and I don’t recall veterans coming up. I was also surprised when, in answering Isaac’s question, [senior VP] disclosed that Isaac was asking about something they’d discussed privately, on a different occasion. It seemed unprofessional for [senionr VP] to disclose to the whole group that he and Isaac had spoken about the matter before, since Isaac may have been speaking to [senionr VP] about it in confidence.

  1. The NORI claimed the field office interviewed “faculty members who are veterans.” This is not supported by the case file nor the facts as they regard the Divinity School, because there are no veterans on faculty, according to the interim Dean interviewed.
  2. The NORI claimed there was “insufficient evidence” that the name change which originated from the Registrar‘s office and which correlates directly to the time in which Isaac was engaged in protected activity, was intimidation, but that was not his claim. Isaac claimed it was harassment (name calling, negative treatment, derogatory speech, p.179 & 304); calling the isolated and derogatory act a “typographical error” is clearly pretext and OFCCP has a duty to investigate “unsupported contractor assertions” like this.

D.  Results are demonstrably false

OFCCP had conclusive evidence of noncompliance which it failed to identify

  1. By their own admission, none of the managers interviewed by the field office actually received EEO training, directly contradicting the Senior Vice President‘s testimony and representing a clear violation of VEVRAA.
  2. With the exception of the AAP, no university policy included “Veteran Status” until November 7, 2016. Therefore, the University grievance procedure never protected Isaac while he had an active complaint with OIE. This means that Duke remained noncompliant for a full 55 days while OFCCP was involved. The University has therefore provided false information to a federal agency. This also constitutes a pattern of discrimination “that goes beyond isolated individual incidents.” (FCCM, § 6E03.b, p. 202)

[1] Pretext is defined by the FCCM (p.313) as a “Professed reason or motive articulated as a cover for the real (discriminatory) reason or motive.” According to FCCM §8EO3 (p.263), “The [compliance officer] should remember that unsupported contractor assertions… are not sufficient to rebut findings of discrimination.”

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