Equal Employment Opportunity Commission v. Columbine Management Services, Inc. et Al.

MOTION for Partial Summary Judgment

D. Colo.September 30, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-01597-MSK-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. COLUMBINE MANAGEMENT SERVICES, INC. D/B/A COLUMBINE HEALTH SYSTEMS, INC., and THE WORTHINGTON, INC., D/B/A NEW MERCER COMMONS ASSISTED LIVING FACILITY, Defendants. PLAINTIFF EEOC’S MOTION FOR PARTIAL SUMMARY JUDGMENT On May 11 and May 12, 2009, Defendants fired Kiros Aregahgn, Mohamed Osman Mahgoub, Sawson Ibrahim, and Hanaa Gual in rapid succession. All four were employed as personal care providers (“PCPs”) at New Mercer Commons, an elder care facility that is part of Columbine Health Systems. Gual had been working at New Mercer for ten months, Mahgoub and Ibrahim for eighteen months, and Aregahgn for almost ten years. All four are black and emigrated from African countries, namely, Sudan and Ethiopia. The sole reason Defendants assert for having terminated Aregahgn, Mahgoub, Ibrahim, and Gual is that they scored less than 75% on a just-implemented written exam. The pass rate for Black or African American test-takers since this exam was Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 1 of 51 2 implemented is 44% -- 45% less than that of their White and Hispanic counterparts. As will be seen, the probability of chance accounting for these differences in passage rates is less than one-tenth of one percent. Similarly African immigrants passed at a rate 56% less than that of their non-African immigrant counterparts. The probability of chance accounting for this difference is also less than one-tenth of one percent. Defendants’ reliance on the written exam to terminate employees thus negatively impacted Black and African immigrants’ job opportunities at a stark, statistically significant rate. At the same time, Defendants made no efforts to formally validate the exam or comply with the Uniform Guidelines on Employee Selection Procedures. They therefore cannot sustain their burden of showing that the exam is job related or consistent with business necessity, thus summary judgment in favor of the EEOC on its disparate impact claim is warranted under Federal Rule of Civil Procedure 56. Summary judgment is also warranted in favor of the EEOC on the legal issue that Defendants are an integrated enterprise with over 500 employees. Columbine Management Services, which does business as Columbine Health Systems, thoroughly manages and controls New Mercer Commons and over a dozen other entities. Therefore Defendants and all other entities constitute a single employer for purposes of Title VII. In this case, where there is incontrovertible evidence of integration, ruling as matter of law under Rule 56 will substantially narrow the issues for trial. Finally, the Court should enter summary judgment under Rule 56 against Defendants on their Sixth, Eighth, Twelfth, and Thirteenth affirmative defenses. These Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 2 of 51 3 defenses are either inapplicable to the facts at hand or Defendants cannot satisfy their burdens of proof. CLAIMS AND DEFENSES UPON WHICH JUDGMENT IS SOUGHT First, Plaintiff seeks summary judgment on its disparate impact claim [ECF No. 18, at 14]. Plaintiff has set forth a prima facie case as to its disparate impact claim, and Defendant has failed to meet its burden of providing its use of the written exam is job related and consistent with business necessity, thus summary judgment is warranted. Second, Plaintiff also seeks summary judgment on its theory that Columbine Management Services d/b/a as Columbine Health Systems, The Worthington d/b/a New Mercer Commons (“New Mercer”), and the other facilities that comprise Columbine Health Systems are an integrated enterprise which employed over 500 employees during the relevant time period. [Id. at 3-4, ¶¶ 9, 10, 11]. The record shows that New Mercer Commons and the other facilities that comprise Columbine Health Systems are intimately managed and operated by Columbine Management Services, comprising an integrated enterprise. Defendants have not presented sufficient, contradictory evidence which, if presented at trial, would allow a jury to return a verdict in Defendants’ favor. See In re Ribozyme Pharms. Sec. Litig., 209 F. Supp. 2d 1106, 1111 (D. Colo. 2002). Third, Plaintiff seeks judgment as a matter of law on the following defenses:  Defense No. 6: EEOC’s claims may be barred, in whole or in part, by the doctrines of waiver and/or estoppel;  Defense No. 8: The training course and written exam about which EEOC complaints are protected as a bona fide occupational qualification;  Defense No. 12: EEOC’s claims may be barred by after-acquired evidence; and, Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 3 of 51 4  Defense No. 13: EEOC’s claims may be barred by failure of conditions precedent. [ECF No. 24, at 10-11]. There is “an absence of evidence in the record to support the elements of the … defense[s].” In re Ribozyme, 209 F. Supp. 2d at 1111. I. CLAIM II: PLAINTIFF IS ENTITLED SUMMARY JUDGMENT ON ITS DISPARATE IMPACT CLAIM. “Title VII forbids not only intentional discrimination based on disparate treatment but also ‘practices that are fair in form, but discriminatory in operation,’ most often referred to as ‘disparate impact’ discrimination.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1220 (10th Cir. 2013) (citing Lewis v. City of Chicago, 560 U.S. 205 (2010)); Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (“[t]he Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”); see 42 U.S.C. § 2000e-2(k). In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Supreme Court explained that an employer cannot use an employment qualification, such as an exam or test, if it adversely impacts the job opportunities of minority candidates, unless the employer meets “the burden of showing that any given requirement [has]… a manifest relationship to the employment in question.” Id. at 425; see also Connecticut v. Teal, 457 U.S. 440, 443-44, 450-52 (1982) (reversal of summary judgment warranted where defendant’s written exam created a disparate impact and district court failed to consider whether the exam was job related). Thus, at the prima facie stage, a plaintiff wishing to proceed under a disparate impact theory must establish: “(a) that an employment practice (b) causes a disparate impact on a protected group.” Tabor, 703 F.3d at 1220. According to the Supreme Court, a prima facie showing of disparate impact is Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 4 of 51 5 “essentially a threshold showing of a significant statistical disparity . . . and nothing more.” Ricci v. DeStefano, 557 U.S. 557, 587 (2009). Upon such a statistical showing, it is the employer’s burden to prove that the challenged employment qualification is “job related for the position in question and consistent with business necessity.” Tabor, 703 F.3d at 1220; 42 U.S.C. § 2000e-2(k)(1)(A)(i). The plaintiff then may show “that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs.” Tabor, 703 F.3d at 1220. Whether unlawful disparate impact exists is determined by the courts. Wallace v. Terrebone Parish Sch. Bd., 2014 U.S. Dist. LEXIS 24258, *3-4 (E.D. La. Feb. 18, 2014)(striking plaintiff’s request for a jury trial on his disparate impact claim); see 42 U.S.C. § 1981a. A. STAGE ONE: THE UNDISPUTED FACTS ESTABLISH A PRIMA FACIE CASE OF DISPARATE IMPACT DISCRIMINATION BASED ON RACE AND NATIONAL ORIGIN. 1. PRIMA FACIE ELEMENT NO. 1: THE PCP EXAM CONSTITUTES AN EMPLOYMENT PRACTICE FOR PURPOSES OF A TITLE VII DISPARATE-IMPACT CLAIM. The first step in raising a disparate-impact claim is to identify the specific employment practice allegedly causing the discriminatory impact. Carpenter v. Boeing Co., 456 F.3d 1183, 1193 (10th Cir. 2006) (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989)). A written test, required as a condition of employment or promotion, constitutes an employment practice for purposes of disparate-impact claims under Title VII. See, e.g., Connecticut v. Teal, 457 U.S. 440, 452 (1982) (a claim of disparate impact from an examination that imposes a pass-fail barrier to employment opportunity states a prima facie case of employment discrimination under Title VII); Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 5 of 51 6 Kerner v. City & Cnty. of Denver, No. 11-cv-00256-MSK-KMT, 2015 WL 5698663, at *1, 3-4 (D. Colo. Sept. 29, 2015) (finding a reading comprehension and writing test had a disparate impact on Black and Hispanic applicants); Hiatt v. Union Pacific R. Co., 859 F. Supp. 1416, 1432 (D. Wyo. 1994) (collecting cases held to have a disparate impact, including cases involving written aptitude tests and written tests of verbal skills). A. Beginning in April 2009 and continuing through at least December 24, 2015, Defendants required that individuals employed as Personal Care Providers in Columbine facilities take a Personal Care Provider Course and Exam. [Ex. 1, Spreadsheet of Exam-Takers]. B. Any Personal Care Provider who failed to achieve a passing score on the PCP exam was terminated. [Ex. 2, Email Re Education Policy; see also Ex. 1, Participant Spreadsheet]. C. According to Defendants, the required passing score on the PCP exam was 75%. [Defs’ 30(b)(6) Dep. at 33:24-34:3]. Because achieving a passing grade on the PCP exam was required as a condition of continuing employment with Defendants, there is no triable issue of fact as to whether it constitutes an employment practice for purposes of a Title VII disparate impact claim. 2. PRIMA FACIE ELEMENT NO. 2: DEFENDANTS’ USE OF THE PCP EXAM AS A CONDITION OF CONTINUED EMPLOYMENT HAD A DISPARATE IMPACT ON AFRICAN AMERICAN/BLACK PCPS AND PCPS OF AFRICAN DESCENT. The next element of a prima facie disparate impact claim is whether the employment practice had a disparate impact on a protected group. Statistical evidence Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 6 of 51 7 is an acceptable and common means of proving disparate impact. Carpenter, 456 F.3d at 1196. Although no specific mathematical formulation is required, statistical disparities must be sufficiently substantial in order to raise an inference of causation. Watson v. Fort Worth Bank & Trust, 486 U.S. 977, 995 (1988); see also Albermarle, 422 U.S. at 425 (prima facie claim of disparate impact requires a showing that the test in question selects applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants). To determine whether a plaintiffs’ statistical evidence is sufficient at this stage, the Court considers three issues: (1) the size of the disparity between the pass/fail rates of the protected group and those outside the protected group; (2) the statistical significance of the disparity; and (3) whether the statistical evidence isolates the challenged employment practice. Tabor, 703 F.3d at 1222. a. The Disparities are Substantial Under the Four-Fifths Rule. With respect to the size of the disparity, the EEOC must show a significant disparity between the rate of employees in the protected group who received an employment benefit or opportunity (e.g. continued employment) and that of the most benefitted group. See Carpenter, 456 F.3d at 1202. Alternatively, the EEOC may use the “rule of exclusion” which measures the degree which a protected group is underrepresented by comparing the number of individuals within the protected group who receive the benefit compared to their total population in the pool. See generally Casteneda v. Partida, 430 U.S. 482, 494 (1977). Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 7 of 51 8 Under the Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”).1 “[A] selection rate for any group . . . that is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded . . . as evidence of adverse impact.” 29 C.F.R. § 1607.4(D). The “four-fifths” rule does not supersede, but supplements, statistical significance, serving as a “rule of thumb” for the courts. Tabor, 703 F.3d at 1223; Kerner, 2015 WL 5698663, at *3 (citing Tabor and Watson, supra). As ‘[t]he administrative interpretation of the Act by the enforcing agency,’ and consequently they are ‘entitled to great deference.’” Albemarle, 422 U.S. at 430; Tabor, 703 F.3d at 1223. A. Nine Black/African-American employees took the PCP exam. [Ex. 1, Participant Spreadsheet]. B. The following seven employees who took the PCP exam emigrated from countries in African: Kiros Aregahgn (Ethiopia), Mohamed Mahgoub (Sudan), Sawsan Ibrahim (Sudan), Hanaa Gual (Sudan), Samira Muktar (Ethiopia), Elham Musa (Sudan), and Khadija Alwalda (Libya). [See id.; Aregahgn Dep. 13:14-15, 18:2-17, 89:18-21; Ibrahim Dep. 11:18-19; Mahgoub Dep. 10:19-21; Gual Dep. 19:5-14]. C. Of the nine Black/African-American employees who took the PCP exam, five passed and four failed, for a passage rate of 55.6%. [Ex. 1, Participant Spreadsheet; Ex. 3, Haladyna Supp. Rpt., at 2]. 1 The Uniform guidelines were adopted on August 25, 1978 by the Equal Employment Opportunity Commission (29 CFR 1607), Office of Personnel Management (5 CFR 300), U.S. Department of Justice (28 CFR, Ch. 1, Part 50), U.S. Treasury Department (31 CFR, Ch. 1, Part 51) and the Office of Federal Contract Compliance Programs (41 CFR, Ch. 60, Part 68-3). Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 8 of 51 9 D. Hispanic or Latino employees had the highest passage rate on the PCP exam. Namely, of the 28 Hispanic or Latino employees who took the PCP exam, all 28 passed, for a passage rate of 100%. [Ex. 1, Participant Spreadsheet; see also Ex. 3 Haladyna Supp. Rpt., at 2]. E. Of the 103 White employees who took the PCP exam, 102 passed, for a passage rate of 99.3%. [Ex. 1, Participant Spreadsheet; see also Ex. 3 Haladyna Supp. Rpt., at 2]. F. Of the seven employees of African descent who took the PCP exam, three passed and four failed, for a passage rate rounded to the nearest number of 42.8%. [Ex. 1, Participant Spreadsheet; see also Ex. 3, Haladyna Supp. Rpt., at 1]. G. Of the 138 non-African employees who took the PCP exam, 137 passed and one failed for a passage rate of 99.3%. [Ex. 1, Participant Spreadsheet; Ex. 3 Haladyna Supp. Rpt., at 1]. Thus, for the EEOC’s race-based disparate impact claim, the passage rate of Black/African American employees at 55.6% is less than four-fifths (80% percent) of the passage rate of Latino and Hispanics (100%) and is less than four-fifths (79%) of the passage rate of White employees (99.3%). And for the EEOC’s national origin-based disparate impact claim, the passage rate of employees who emigrated from Africa (42.8%) is less than four-fifths (or 79%) of, the passage rate of employees who are not African immigrants (99.3%). The disparities in this case are significant. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 9 of 51 10 b. There is No Dispute that a Statistically Significant Correlation Between Race, National Origin and Test Performance Exists. Statistical significance measures the likelihood that the disparity between groups is random, i.e., solely the result of chance. Tabor, 703 F.3d at 1223. To assess the likelihood that an observed difference in outcomes resulted from mere chance, statisticians rely on p-value, which represents “the probability of observing a difference equal to or greater than that which actually occurred, assuming equal opportunity.” Jones v. City of Boston, 752 F.3d 38, 43 (1st Cir. 2014). Most federal courts have determined that a p-value of five percent (p = .05) is sufficient to establish that a disparity is statistically significant for purposes of disparate impact. Id. at 46-47 n.9. Statistical significance and p-value are also often connected with a third concept, standard deviation. Id. In disparate impact cases, standard deviation serves as another way of measuring the amount by which the observed disparity in outcomes differs from the average expected result given equal opportunity,” e.g. equal rates of retention for Black and Hispanic employees. Id. A difference of 1.96 standards generally corresponds to a p-value of five percent, while a difference of three standard deviations generally corresponds to a p-value of approximately 0.5%. Federal Judicial Center, Reference Manual on Scientific Evidence 251 n.101 (3d ed. 2011). As the Supreme Court recognized in a case involving allegations of discriminatory jury selection, “[a]s a general rule . . ., if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the jury drawing was random would be suspect to a social scientist.” Casteneda, 430 U.S. at 496 n.17. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 10 of 51 11 A. The p-value for the disparity between the success rates of Black/African American employees compared to Hispanic/Latino employees is less than one-tenth of one percent (or p < 0.001). [Ex. 3, Haladyna Supp. Rpt., at 2]. B. The p-value for the disparity between the success rates of Black/African American employees compared to White employees is less than one-tenth of one percent (or p < 0.001). [Id.]. C. The p-value for the disparity between the success rates of African immigrant employees to non-African immigrant employees is less than one-tenth of one percent. [Id. at 1]. D. Z-statistic calculations are equivalent to calculating standard deviations. [See id.]; see generally Rich v. Martin Marietta Corp., 467 F. Supp. 587, 601 (D. Colo. 1979) (explaining proximity between a z-statistic calculation and standard deviation analysis). E. The result of a calculation comparing the passage rates of African immigrant test-takers and non-African immigrant test-takers results in a Z-statistic of 6.78, greatly in excess of two to three standard deviations. [Ex. 3, Haladyna Supp. Rpt., at 1]. F. The result of a calculation comparing the passage rates of Black/African American test-takers and White test-takers results in a Z-statistic of 6.33, greatly in excess of two to three standard deviations. [Ex. 3, Haladyna Supp. Rpt., at 2]. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 11 of 51 12 G. The result of a calculation comparing the passage rates of Black/African American test-takers and Hispanic test-takers results in a Z-statistic of 3.73, in excess of 2 standard deviations. [Ex. 3, Haladyna Supp. Rpt., at 2]. Defendants have hired Dr. Lisa Harpe as their expert to defend against this lawsuit. Dr. Harpe attempts to undermine Dr. Haladyna’s statistical analysis by disputing both the population of Black/African American employees and the population of African immigrant employees relied on in the analysis. Notably, Dr. Harpe maintains that two of the aggrieved individuals, Mohamed Mahgoub and Sawsan Ibrahim, “cheated” on the exam and therefore should not be included in the analysis of the impact of the PCP exam. [Ex. 4, Harpe Rebuttal Rpt., at 6]. As a threshold matter, the EEOC disputes vigorously that Mahgoub and Ibrahim cheated on the test. [See, e.g., Ibrahim Dep. at 71:8-72:10]. However, even assuming for purposes of this motion only that Mahgoub did assist by providing answers to Ibrahim on the PCP exam, the EEOC is unaware of any legal authority or other basis supporting Defendants’ conclusion that Mahgoub and Ibrahim’s test results should be excluded from the disparate impact analysis. Logically, Defendants cannot seriously maintain that Mahgoub or Ibrahim would have passed the PCP exam if Mahgoub had not assisted Ibrahim with answers, as both scored below 75%. Even more importantly, excluding Mahgoub and Ibrahim from the population of Black/African American test-takers or African immigrant test-takers does nothing to undermine the statistically significant disparity between the passage rates of Black/African American employees and Hispanic/Latino employees on the written exam. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 12 of 51 13 Even excluding Mahgoub and Ibrahim, Dr. Harpe admits that the Black-Hispanic disparity remains statistically significant with a p-value of 3.5% (p = .0353), or 2.1 standard deviations. [Ex. 4, Harpe Rebuttal Report, at 6]. Similarly, excluding Mahgoub and Ibrahim from the population of African immigrant test-takers does not eliminate the statistically significant disparity between the passage rates of African employees and non-African employees. The disparity remains statistically significant with a p-value of .036% (p =.0036), or 2.83 standard deviations. [Id. at 6-7]. c. Title VII Does Not Require Proof that a Disparity is “Practically Significant” in Order to Establish a Prima Facie Case of Disparate Impact. Perhaps recognizing that excluding Mahgoub and Ibrahim from the relevant population does not call statistical significance into doubt, [Id.], Defendants argue that in order to establish a prima facie case of disparate impact, the EEOC must also show that the statistical disparities are “practically significant.” More specifically, relying on the so- called “flip-flop” rule and citing to the Questions and Answers portion of the Uniform Guidelines, Dr. Harpe argues that after removing Mahgoub and Ibrahim from the sample, when one additional person in the protected group is changed to passing and one person in the non-protected group is changed to failing the PCP exam, the adverse impact no longer exists. Even assuming the flip-flop rule represents a measure of practical significance, which EEOC vigorously disputes, no circuit court has found the “non-statistical standard” of practical significance to be a requirement for a prima facie case of disparate impact, let alone one that supersedes both statistical significance and the Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 13 of 51 14 EEOC’s four-fifths rule. See Stagi v. Nat’l R.R. Passenger Corp., 391 F. App’x 133, 140 (3d Cir. 2010); see also Jones v. City of Boston, 752 F. 3d 38, 50-51 (1st Cir. 2014). As the First Circuit recognized in Jones, “the concept of practical significance is impossible to define in even a remotely precise manner. We are aware of no test generally accepted by statisticians that we might employ to gauge practical significance (as we employ, for example, the notion that a p-value less than five percent provides good reason to presume that a difference in outcomes is not the result of chance.” 752 F. 3d at 50. With no objective measure of practical significance, the label ultimately means “simply [that] the person applying it view a disparity as substantial enough that a plaintiff ought to be able to sue over it.” Id. Such an “elusive, know-it-when-you-see-it standard” is not only difficult to apply for the court, but renders it impossible for the parties to predict results. Id. Moreover, the entirely subjective nature of practical significance is further demonstrated by the approach set forth in the Q&A section of Uniform Guidelines. On the one hand, Question 21 of the Q&A section states that “[g]enerally, it is inappropriate to require validity evidence or to take enforcement action where the number of persons and the difference in selection rates are so small that the selection of one different person for one job would shift the result from adverse impact against one group to a situation in which that group has a higher selection rate than the other group.” 44 Fed. Reg. 11996 (emphasis added). That is, under Question 21 of the Uniform Guidelines Q&As the disparity must operate in reverse after the hypothetical change in results. Dr. Harpe, however, erroneously interprets the Uniform Guidelines Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 14 of 51 15 Q&As to mean that a demonstrable impact is not practically significant if hypothetically changing one individual from the protected group to passing and one person from the non-protected group to failing eliminates not the disparity in selection rates, but only the statistical significance of the disparity. [Ex. 4, Harpe Rebuttal Rpt., at 6]. Ultimately, despite Defendants’ effort to graft additional requirements onto the prima facie case of disparate impact, the only requirements for establishing a disparate impact are the size of the disparity, as measured by statistical significance, augmented by the four-fifths rule. Tabor, 703 F.3d at 1222. There is no genuine issue of material fact that these requirements are met in this case. d. It is Undisputed that the PCP Exam is Solely Responsible for the Disparity in Employment Outcomes Finally, the EEOC has effectively isolated the employment practice it is challenging. There are no discretionary or subjective factors that weigh into whether PCP employees pass or fail the exam. Kerner, 2015 WL 5698663, at *4. Altogether, the undisputed evidence directly correlates to the disparity in outcomes on the PCP exam when Black/African American and African immigrant employees are compared to their Hispanic/Latino, White, or non-African counterparts. Accordingly, the undisputed evidence in this case establishes a prima facie case of Title VII disparate impact discrimination based on race and national origin. 3. PRIMA FACIE ELEMENT NO. 3: THERE IS NO DISPUTE THAT THE AGGRIEVED INDIVIDUALS ARE MEMBERS OF PROTECTED GROUPS. Title VII prohibits discrimination based on a person’s race. 42 U.S.C. § 2000e- 2(a)(2). Title VII also prohibits discrimination based on a person’s national origin. Id. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 15 of 51 16 Defendant does not dispute that “black” sufficiently articulates a racial group worthy of Title VII’s protections. [See ECF. No. 20, Mot to Dismiss, at 3 (challenging only EEOC’s national origin claim); ECF No. 62, Order Denying Defendants’ Motion to Dismiss]. Defendants previously objected that “African” fails to qualify as a protected class without EEOC pleading additional shared characteristics but that argument has been rejected by this Court. [See, e.g., Partial Mot. Dismiss, ECF No. 20, at 3, 4; Recommendation of U.S. Magistrate Judge, ECF No. 54, at 10 (collecting cases recognizing “African” as a protected class for purposes of national origin discrimination claims; ECF No. 62, Order Denying Defendants Partial Mot. Dismiss]. Even assuming arguendo that evidence of shared characteristics is at this stage required to meet the protected-group element of a national origin discrimination claim, the aggrieved individuals share several such characteristics. A. Defendants admit that Aggrieved Individuals Kiros Aregahgn, Mohamed Mahgoub, Sawsan Ibrahim, and Hanaa Gual are black. [Compare Am. Compl. ECF No. 18, ¶¶ 23, 53 with Answer, ECF No. 24, ¶¶ 23, 53]. B. Aregahgn emigrated from Ethiopia, a country in Africa. [Aregahgn Dep. at 89:18-21]. C. Mahgoub, Ibrahim, and Gual emigrated from Sudan, a country in Africa. [Ibrahim Dep. at 11:18-19; [Mahgoub Dep. at 10:19-21; Gual Dep. at 19:13-14]. D. Aregahgn, Mahgoub, Ibrahim, and Gual share the following physical, cultural, or linguistic characteristics: (1) they are black; (2) they are émigrés from countries in eastern Africa; (3) they were believed by Defendants’ employees to have Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 16 of 51 17 limited English skills; (4) they had accents that Defendants’ employees did not like; (5) they were treated as a group of “African” employees by Defendants’ employees; (6) they speak a native language other than English; (7) they speak a native language not derived from, related to, attributed to, or originating from a Germanic or romance language; and (8) they speak a Semitic language as their native language. [Ex. 5, EEOC’s 3rd Suppl. Resp. to Defs.’ 3rd Set of Disc. Rqts.]. Accordingly, because the Aggrieved Individuals are all black, of African descent, and share numerous physical, cultural, and linguistic characteristics, they are members of a protected group for purposes of the EEOC’s race- and national origin-based disparate impact claims. B. STAGE 2: DEFENDANT HAS FAILED TO SATISFY ITS BURDEN OF PROVING THAT THE PCP EXAM IS JOB RELATED AND CONSISTENT WITH BUSINESS NECESSITY. Defendants have the burden of proof to establish that the PCP written exam is job related and consistent with business necessity. See Tabor, 703 F.3d at 1220; 42 U.S.C. § 2000e-2(k)(1)(A)(i). “The disparate impact ‘doctrine seeks the removal of employment obstacles, not required by business necessity, which create built-in headwinds and freeze out protected groups from job opportunities and advancement.’” Tabor, 703 F.3d at 1220 (citing EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000)). The Uniform Guidelines were promulgated to assist employers in determining whether their selection criteria are sufficiently job related and consistent to business necessity to comply with anti-discrimination laws. See 29 C.F.R. § 1607(1) (1978). In shorthand, these compliance procedures are frequently referred to as Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 17 of 51 18 “validation.” Id. at § 1607(5). According to the Uniform Guidelines, “[t]he use of any selection procedure which has an adverse impact on…employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines.” 29 CFR 1607.3(A). Moreover, to reduce disparate impact, if “two or more selection procedures are available which serve the user’s legitimate interest…whenever a validity study is called for by these guidelines, the user should include, as a part of the validity study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedure which have as little adverse impact as possible…” Id. at 3(B). Defendants claim their PCP written exam is a content based selection procedure. [Ex. 6, Harpe Expert Report, at 2]. When a selection procedure is used to render employment decisions, “content” validation requires, inter alia, that an employer:  Investigate whether content validity studies are appropriate for the situation. A content strategy is not appropriate if the user wishes to assess knowledges, skills, or abilities which an employee will be expected to learn on the job.  Complete a job analysis including an analysis of the important or critical work behaviors required for successful performance of that job.  Demonstrate the content validity of a selection procedure, including showing that the behaviors demonstrated in the selection procedure are a representative sample of the behaviors of the job in question. The user should show that (a) the selection procedure measures and is a representative sample of that knowledge, skill, or ability; and (b) that knowledge, skill, or ability is used in and is a necessary prerequisite to performance of critical or important work behaviors.  Where feasible, undertake appropriate statistical estimates regarding the reliability of the selection procedure at predicting or correlating with job performance. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 18 of 51 19  Where success in a training program is used, an analysis of the relationship between the content of the training program and the content of the job. See 29 CFR 1607.14(A), (C). “[V]alidation studies must conform to several technical requirements… ‘under no circumstances will the general reputation of a test . . . its author . . . or [casual] reports of [its] validity be accepted in lieu of evidence of validity. Specifically ruled out are . . . nonempirical or anecdotal accounts of selection practices or selection outcomes.’” Williams v. Ford Motor Co., 187 F.3d 540, 540-41 (6th Cir. 1990) (quoting 29 C.F.R. § 1607.9(A)); see generally 29 CFR 1607.15(A), (C) (detailing what records an employer must create and maintain relating to validation and disparate impact studies, including adverse impact information and documentation showing content validity). As courts have noted, “employment testing is a task of sufficient difficulty to suggest that an employer dispenses with expert assistance at his peril.” Guardians Asso. of N.Y.C. Police Dept., Inc. v. Civil Serv. Comm., 630 F.2d 79, 96 (2d Cir. 1980); Vanguard Justice Soc. v. Hughes, 592 F. Supp. 245, 261 (D. Md. 1984); U.S. v. City of New York, 637 F. Supp. 2d 77, 115 (E.D.N.Y. 2009). In Brito v. Zia Co., 478 F.2d 1200 (10th Cir. 1973), the Tenth Circuit affirmed the district court’s findings that the plaintiffs, Spanish employees, were disparately affected by an invalid written evaluation test and that the test was invalid because the defendant “failed to validate the test according to the EEOC guidelines…[and] failed to introduce evidence of the validity of its employee performance evaluation test consisting of empirical data demonstrating that the test was Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 19 of 51 20 significantly correlated with important elements of work behavior relevant to the jobs for which the appellants were being evaluated.” Id. at 1205. Similarly in Johnson v. City of Memphis the court for the Western District of Tennessee granted partial summary judgment in favor of a class of plaintiff police officers who proved that a written promotion exam lead to a disparate impact on African Americans and the defendant had produced no proof that the exam was job related or consistent with business necessity. 355 F. Supp. 2d 911, 916-17 (W.D. Tenn. 2005). Here, Defendants made no effort to ensure that their PCP written exam was job related or consistent with business necessity. They made no efforts to validate the exam or to comply with the Uniform Guidelines or any other industry standards related to the development of tests before firing the aggrieved individuals for their scores: A. Defendants’ sole reason for discharging the aggrieved individuals is that they scored below 75% on the written PCP exam. [Defs’ 30(b)(6) Dep. 219:19-221:3]. B. On April 8, 2011, during the EEOC’s investigation of Aregahgn’s charge, Defendant admitted that no validation studies had been done on the written exam. [Ex. 7, Rubala Statement]. C. On November 19, 2015, the EEOC propounded the following interrogatories as part of this litigation:  Interrogatory No. 6 requested Defendants “describe all efforts, assessments, measurements or analysis during the relevant time period to determine the minimum level of English proficiency in reading, speaking, writing, and understanding English that is necessary to adequately perform a PCP/W's job duties and to ensure that the PCP/W Test accurately represented, tested, or measured the proficiencies required.” [Ex. 9, EEOC’s First Rogs., at 9]. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 20 of 51 21  Interrogatory No. 15 requested Defendants “describe any and all efforts by Defendants to ensure that the PCP/W Test complied or complies with principles set forth in the Uniform Guidelines on Employee Selection Procedures (including any efforts at validation, analysis of job necessity, impact studies, and efforts to ensure against disparate treatment).” [Id. at 11]. D. On November 30, 2015, the EEOC propounded the following requests for admission as part of this litigation:  Request for Admission No. 1: Admit that during the relevant time period Defendants have not performed any validation studies on the PCP/W Test. [Ex. 10, EEOC’s RFAs, at 5]  Request for Admission No. 3: Admit that Defendants did not follow the Uniform Guidelines on Employee Selection Procedures in determining the procedures for administering the PCP/W Test that was given in March 2009. [Id.]  Request for Admission No. 4: Admit that during the relevant time period Defendants have done no disparate impact studies on the PCP/W Test. [Id.] E. In their January 27, 2016 supplemental responses to the EEOC’s interrogatories and requests for admission, Defendants confirmed:  In response to EEOC’s Interrogatory No. 6, that Defendants “are not aware of any formal efforts made to determine minimum English proficiency for the PCP position or that efforts were taken to ensure that the PCP/W test measured those proficiencies.” [Ex. 11, Defs’ First Supp. to First Rogs., at 19].  In response to EEOC’s Interrogatory No. 15, That Defendants are “not aware of any formal attempts to ensure that the PCP/W Test complied with the “EEOC’s Uniform Guidelines on Employee Selection Procedures.” [Id. at 27-28].  In response to Request for Admission No. 1, Defendants referred to their response to Interrogatory No. 15, hence admitting that they are “not aware of any formal attempts to ensure that the PCP/W Test complied with the “EEOC’s Uniform Guidelines on Employee Selection Procedures” Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 21 of 51 22 including validation requirements. [Ex. 12, Defs’ Supp. Resp. to RFAs, at 3].  In Response to EEOC’s Request for Admission No. 3, Defendants admitted that they are “not aware of any formal attempts to ensure that the PCP/W Test complied with the ‘EEOC’s Uniform Guidelines on Employee Selection Procedures.’” [Id. at 5].  In response to EEOC’s Request for Admission No. 4, Defendants admitted that “Defendants are not aware of any formal disparate impact studies by them on the PCP/W Test.” [Id. at 6]. F. On June 30, 2016, during Defendants’ corporate deposition pursuant to Rule 30(b)(6), Defendants’ designee testified as follows:  When asked whether Defendants had any records of validity studies, Defendants admitted they did not. [Defs’ 30(b)(6) Dep. 12:1-9; 41:11-15].  When asked whether Defendants relied on any third party validity studies, Defendants admitted they had not. [Id. at 29:8-21].  When asked how they selected a cut score of 75%, Defendants admitted they used the same cut score used by the state board in certifying Certified Nurse Aids (a non-high-stakes test). [Id. at 42:8-19]  When asked why 75% was used by the state board and why the same score should apply to the PCP exam, Defendants admitted they did not know why the state board used 75% nor did they engage in independent analysis on the use of 75% as a cut score for the PCP exam. [Id. at 42:19- 43:6].  When asked if Defendants had ever undertaken a formal job analysis of the PCP position, Defendants admitted that they had not. [Id. at 37:2-10 discussing Ex. 13, PCP job description].  When asked if Defendants had ever engaged in analysis of what successful work behaviors are predictive of PCP performance, Defendants admitted none have ever been done. [Defs’ 30(b)(6) Dep. 39:3-7].  When asked if there has been any follow-up analysis done whatsoever, statistical or otherwise, to see whether the PCP written exam accurately predicts or corresponds with PCP job performance, Defendants admitted Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 22 of 51 23 no follow-up analysis has been done. [Id. at 13:10-15; 24:2-5; 113:22- 114:1].  When asked whether Defendants have any empirical data to demonstrate that the PCP exam was predictive of job performance, Defendants admitted they did not. [Id. at 23:21-24:5].  When asked if Defendants had performed any analysis of the PCP written exam to confirm the degree to which the exam measures what it purports to measure, Defendants admitted they have not [Id. at 41:4-10].  When asked if Defendants had engaged in an impact analysis or if Defendants had any records of impact studies, Defendants admitted they had not and there were none. [Id. at 12:10-18, 13:16-24].  When asked if Defendants had analyzed the fairness of the PCP exam, Defendants admitted they had not. [Id. at 40:15-19].  When asked if Defendants had taken any measures to ensure that the PCP exam did not create a disparate impact based on race, sex, ethnic group, national origin, Defendants admitted they took none. [Id. at 40:20- 41:3].  When asked if Defendants had contemplated allowing retesting, Defendants admitted they had not. [Id. at 38:21-23].  When asked about alternatives to the quizzes, Defendants admitted that there was no investigation into suitable alternative selection procedures. [Id. at 12:21-13:9]. G. On August 1, 2016, to defend against this lawsuit, Defendants’ produced an expert report from Dr. Harpe. [Ex. 6, Harpe Expert Report]. Over seven years after Defendants designed and implemented the PCP written exam, and fired the aggrieved individuals, Dr. Harpe purports to engage in a “content validity” study. [Id. at 2].2 As an 2 Although Plaintiff disagrees that “content validity” is the correct approach for a skills- based position like the PCP position in this case, [see, e.g., Ex. 14, Haladyna Expert Report, 16, 20], for the purpose of this motion only, we assume Dr. Harpe’s model is the correct approach. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 23 of 51 24 initial matter, Dr. Harpe cites to no scientific source to support her methodology, making each one of her opinions highly susceptible to exclusion pursuant to Fed.R.Evid.702.3 Nevertheless, even if taken at face value, Dr. Harpe’s validity analysis falls far short of the standards enunciated in the Uniform Guidelines. Dr. Harpe’s report is limited to: (a) a description of the selection procedure used [Id. at 3-6]; (b) a job analysis and ratings of the exam questions [Id. at 4-20]; and, (c) a finding that Defendants could have used a cut-score of either 75 to 84 using one model, or 70.5 to 88.5 using another. [Id. at 21]. Dr. Harpe’s expert report does not come close to satisfying the Uniform Guidelines (or any other industry guidelines for that matter, [see Ex. 14, Haladyna Expert Report, at 11-30 (discussing Uniform Guidelines and the Standards for Educational and Psychological Testing (“APA Standards”)); Ex. 15 Haladyna Rebuttal Report, at 2-8 (discussing, inter alia, improper timing of study and failure to substantiate methodology by means of any recognized standards).4 Under the Uniform Guidelines, content validation requires, inter alia, that an employer not only perform a job analysis, but 3 Under the scheduling order in this case, the Parties were not permitted to engage in any expert depositions prior to summary judgment. Nevertheless it should be noted that “[m]erely submitting an admissible affidavit will not forestall (or warrant) the entry of summary judgment when the affidavit is not 'significantly probative.’…. There is thus a level of conclusoriness beyond which an expert's affidavit may not fall if it is to create (or foreclose) a genuine issue of fact on summary judgment.” Rowell v. Jim Walters Homes, Inc., 1993 U.S. App. LEXIS 2493, *5-7 (10th Cir. Feb. 8, 1993); see also Mid- State Fertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989) (quoting Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C. Cir. 1988)). Thus Dr. Harpe’s expert report does not foreclose the Court from granting of summary judgment in this case. 4 The “APA Standards” are promulgated jointly by the American Educational Research Association, American Psychological Association, and the National Council on Measurement in Education and like the Uniform Guidelines are frequently cited by the Courts. The Uniform Guidelines are based on and specifically refer to the APA Standards. 29 C.F.R. § 1607.5 (C). Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 24 of 51 25 perform an analysis to (1) ensure that the selection criteria are appropriate for the situation; (2) establish that the selection procedure measures the knowledges, skills, or abilities sought, and that the knowledge, skill, or ability sought is a necessary prerequisite to performance of critical or important work behaviors; (3) assess reliability (preferably through statistical analysis); and, (4) explore whether alternative procedures will result in a lesser impact. See 29 CFR 1607.3(B), 14(C), 15(A), (C). Defendants have done of this. Notably, to this day, no analysis has ever been done ensuring the PCP written exam accurately tests for the knowledges, skills, or abilities it is intended to test, or whether it accurately predicts, correlates, or measures the successful performance of PCP duties. Defendants did nothing to comply with the Uniform Guidelines before terminating the aggrieved individuals. Only as a result of this litigation did they hire an expert to opine about the alleged validity of their exam. The EEOC has been unable to find any court decision sanctioning this type of post facto validation. In a vast majority of cases, employers made at least some effort to validate written exams prior to relying on scores to make employment decisions. See, e.g., Bew v. City of Chicago, 252 F.3d 891, 892- 93 (7th Cir. 2001)(tested out questions for six months and measured results before used in decision-making); Smith v. City of Boston, 144 F. Supp. 3d 177, 185-191 (D. Mass. 2015) (discussing extensive pre-use validation efforts); M.O.C.H.A Society, Inc. v. Buffalo, 2009 WL 604898, *2-6 (W.D.N.Y. March 9, 2009) (same). In those few cases such as Brito and Johnson, supra, the courts sided with the plaintiffs. But as far as Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 25 of 51 26 EEOC is aware, no court has ever held that an analysis, done years later by an expert hired exclusively to defend against litigation, constitutes proper validation. The Uniform Guidelines are designed to assure fairness and avoid discriminatory impact before employees are adversely affected, not as a defense to subsequent litigation. That is why the Uniform Guidelines specifically state that the “guidelines incorporate a single set of principles which are designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of Federal law prohibiting employment practices which discriminate on grounds of race, color, religion, sex, and national origin. They are designed to provide a framework for determining the proper use of tests and other selection procedures.” 29 CFR § 1607.1. By this language, it is understood that validation is a prophylactic framework, not a shield against liability when one is likely liable for discrimination. If employers may simply ignore the validation process until if and when they are sued, the requirement that employers make effort to ensure that selection procedures be “job related and consistent with business necessity” is rendered virtually meaningless. Because the PCP written exam resulted in a statistically significant disparate impact by race and national origin, and Defendants have failed to meet their burden of proving that the PCP exam is job related and consistent with business necessity, summary judgment is warranted. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 26 of 51 27 II. THE UNDISPUTED EVIDENCE ESTABLISHES THE EXISTANCE OF AN INTEGRATED ENTERPRISE. It is the plaintiff’s burden to present evidence of an integrated enterprise. See generally EEOC v. Moreland Auto Group, 2012 U.S. Dist. LEXIS 84421 (D. Colo. June 19, 2012). In determining whether two or more nominally separate corporate entities may be considered a single employer under an integrated enterprise theory, the courts generally consider four factors: “‘(1) interrelations of operation; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control.’” Bristol v. Bd. of Cnty. Comm’rs, 312 F.3d 1213, 1220 (10th Cir. 2002) (quoting EEOC v. Wooster Brush Co. Employees Relief Ass’n, 727 F.2d 566 (6th Cir. 1984); Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1184 (10th Cir. 1999) (upholding jury verdict of integrated enterprise when, inter alia, parent company wholly owned subsidiaries, shared common officers and directors, accounting department, and human resources manager, and used single personnel and employee handbooks). This test, known as the “single employer” test, focuses on the relationship between the various business entities claimed to be an integrated enterprise or single employer. Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1227 (10th Cir. 2014). The integrated enterprise is not limited to the named defendants, and may include non-party entities as well. EEOC v. Moreland Auto Group, 2012 U.S. Dist. LEXIS 84421, *8 (D. Colo. June 19, 2012). Non-named entities are relevant because a plaintiff may aggregate the employees of these non-party entities along with those of named defendants for purposes of establishing the proper damage cap.” Id. (citing Knowlton, supra and Clawson v. Mountain Coal Co., LLC, 2007 WL 201253 (D. Colo. Jan. 24, Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 27 of 51 28 2007)). Although courts generally consider centralized control of labor relations as most important to the single employer analysis, “[t]he heart of the inquiry is whether there is an absence of an arm’s-length relationship among the companies.” Id. at *7-8. In this case, Plaintiff EEOC alleges that: 9. At all relevant times, Defendant Columbine has wholly owned, operated, and managed Defendant New Mercer Commons, where Kiros Aregahgn, Mohamed Osman Mahgoub, Sawson Ibrahim, Hanaa Gual, and Marlene Hoem were employed. 10. For each working day in each of 20 or more calendar weeks in the years 2008 and 2009 Defendant Columbine employed over 500 employees. 11. For each working day in each of 20 or more calendar weeks in the years 2009 through the present and ongoing, Defendant Columbine has employed over 500 employees. [ECF No. 18, at 3-4]. 1. The Undisputed Facts Show that Columbine Management Services and all of the Facilities that Comprise Columbine Health Systems are One Integrated Enterprise. The following undisputed facts are relevant to all four of the Court’s considerations: A. Defendant Columbine Management Services registered the trade name and trademark Columbine Health Systems.5 B. Columbine Health System maintains a website at http://www.columbinehealth.com/. Included on the website is a timeline of Columbine 5 Colorado Secretary of State, https://www.sos.state.co.us/biz/TradeNameSummary.do?quitButtonDestination=Traden ameOwnerResults&nameTyp=TRDNM&srchTyp=TRDNM&fileId=19981051245&master FileId=19981051245 and https://www.sos.state.co.us/biz/TradeMarkDetail.do?quitButtonDestination=BusinessEnt ityResults&nameTyp=TMSM&entityId2=20001099393&srchTyp=MISC&masterFileId=2 0001099393 Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 28 of 51 29 Health System’s growth. See http://www.columbinehealth.com/timeline/index.html [Ex. Ex. 16, CHS Passport, at 3]. C. Columbine Health Systems currently consists of Columbine Management Services, New Mercer Commons, Bloom at Home, Centre Ave. Health and Rehab, Centre Pharmacy, Columbine Commons, Columbine Commons Health & Rehab, Columbine Distribution Center, Columbine Medical Equipment, Columbine Poudre Home Care, Columbine Therapy Service, Columbine Transportation Services, Columbine West Health & Rehab, Front Range Therapy, Geriatric Education Centre, Lakeview Commons, Lemay Ave. Health & Rehab, Lifestyle Centre, North Shore Health and Rehab, Poudre Infusion Therapy, The Wexford, and The Winslow. [Ex. 17 (Depo. Ex. 157), Campus Maps; Defs’ 30(b)(6) Dep. 45:23-46:4; 53:1-54:23 (discussing growth of Columbine Health Systems from 2008 to present)]. D. Only Lifestyle Center, Bloom at Home, Columbine Commons, and Columbine Commons Health & Rehab were acquired after 2008 and 2009. [Defs’ 30(b)(6) Dep. 45:23-46:4]. E. The number of individuals employed between all of these entities totals well over 1,000 employees. [Ex. 18, LinkedIn Page (admitting Columbine Health Systems employees between 1001-5000 employees); Ex. 19, Article (informing jobZology that Columbine Health Systems employs over 1,400 employees); Ex. 20, Article in the Source, at 2 (reporting to the press over 1,500 employees). Most of these individuals were employed with Defendants in 2008 and 2009. [See Defs’ 30(b)(6) Dep. 52:21-53:7 (discussing growth of Columbine Health Systems)]. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 29 of 51 30 F. In 2008 John Robert Wilson was, and remained at least through June 30, 2016, the 100% owner of Columbine Management Services, New Mercer Commons, and all of the other entities that comprise Columbine Health Systems. [Defs’ 30(b)(6) Dep. 45:5-46:4; Ex. 21, CMS Organization (Matter No. 1); Ex. 22, NMC Organization (Matter No. 1)]. G. In 2006, Wilson, on behalf of both Columbine Management Services and New Mercer Commons, entered into a “Management Agreement” that centralizes control of nearly every aspect of New Mercer Commons in the hands of Columbine Management Services. [See Ex. 23, 2006 Agreement, at 10]. The Agreement expressly states that “all aspect of the operation of the facility including, but not limited to, staffing, accounting, billing, collections, setting of rates and charges and general administration.” [Id. at 1, § 1.02]. More specifically, the Agreement gives Columbine Management Services exclusive purview to:  Hire and employ the facility’s administrators, [Id. at 1, §1.02(a)];  Institute and amend salary scales, [Id. at 2, § 1.02(b)];  Issue bills for services and materials, [Id. at 2, § 1.02(c)];  Collect on accounts, [Id.];  Prepare and file insurance, Medicare, Medicaid, and other reports and claims, [Id.];  Supervise maintenance and repairs of the facility, [Id. § 1.02(d)];  Purchase all medical and other supplies for the facility, [Id. at § 1.02(e)];  Administer, supervise, and schedule all patient and other services, [Id. at § 1.02(f)]; Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 30 of 51 31  Make all payments on behalf of the facility, [Id. at § 1.02(g)];  Negotiate all agreements and contracts to provide services at the facility, [(Id. at § 1.02(i)];  Maintain all licensing and permits, [Id. at § 1.02(k)];  Obtain and maintain insurance for the facility, [Id. at 3, at § 1.02(l)];  Periodically evaluate the performance of all of the departments, [Id. at § 1.02(m)];  Maintain the accounting, [Id. at § 1.02(n)];  Maintain all of the accounts, manage and control all funds, and manage the facility’s annual budget, [Id. at § 2.01-.03]; and,  Maintain all licensing, [Id. at 4, § 3.01]. H. In 2015, Wilson, on behalf of both Columbine Management Services and New Mercer Commons, renewed the “Management Agreement” so that New Mercer Commons remains under similar all-encompassing management to this day. [See Ex. 24, 2015 Agreement, at 10, 12]. I. The other facilities that comprise Columbine Health Systems have similar management agreements with Columbine Management Services. [See, e.g., Defs’ 30(b)(6) Dep. 77:6-78:8; 85:3-107:5 (discussing Ex. 25, 2016 Agreement Mark Up); 248:25-251:2]. 2. Factor 1: Defendants and other Facilities that Comprise Columbine Health Systems are Under Common Ownership and Financial Control. J. In addition to owning all of the entities that comprise Columbine Health Systems in 2008, Wilson was, and remains to this day, Chief Executive Officer and Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 31 of 51 32 President of Columbine Management Services, New Mercer Commons, and the other entities that comprise Columbine Health Systems. [Ex. 26, 2008 Employee Handbook, at 6 (confirming that Wilson is president of the 16 businesses that comprised Columbine Health Systems in 2008); Ex. 27, 2016 Handbook, at 2 (confirming the title Owner/President); Ex. 21 and Ex. 22 (Matter No. 1 both)]. K. In 2008 Barry Fancher was, and remained at least through June 30, 3016, Chief Financial Officer (CFO) and Chief Operating Officer (COO) of Columbine Management Services, entering contracts for New Mercer Commons, and the other entities that comprise Columbine Health Systems. [Ex. 21 and Ex. 22 (Matter No. 1 both); See Defs’ 30(b)(6) Dep. 102:3-24; 107:6-13 (negotiating contracts)]. L. In 2008, Lauren Fasciano-Sager was, and remained at least through June 30, 2016, Director of Accounting for Columbine Management Services, New Mercer Commons, and the other entities that comprise Columbine Health Systems. [Ex. 21 and 22, at 1 (Matter No. 1 for both); See Defs’ 30(b)(6) Dep. 106:5-13 (describing similar relationship with other entities regarding insurance)]. M. Wilson, Fancher, and Fasciano-Sager comprise the Board of Directors for Columbine Management Services. [Defs’ 30(b)(6) Dep. 127:25-128:2]. There is no independent or separate Board of Directors for New Mercer Commons. [Id. at 128:21- 22]. N. Wilson, Fancher, and Fasciano-Sager are directors, officers, and managing employees of the rest of the entities that comprise Columbine Health Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 32 of 51 33 Systems. See. e.g., HealthGrove, http://nursing-homes.healthgrove.com/l/1505/Centre- Avenue-Health-And-Rehab-Facility-LLC; http://nursing-homes.healthgrove.com/l/1348/Lemay-Avenue-Health-And-Rehabilitation- Facility; http://nursing-homes.healthgrove.com/l/17476/Columbine-Commons-Health- And-Rehab-LLC. O. Wilson and Fancher are the only persons authorized to engage in banking transactions on behalf of Columbine Management Services, New Mercer Commons, and the other facilities that comprise Columbine Health Systems. [Ex. 21 and 22 (Matter 2 for both); See Defs’ 30(b)(6) Dep. 136:16-137:9]. P. In 2008, Nancy Lindemon, who is employed by Columbine Management Services, was, and remained at least through June 30, 2016, the individual who writes and distributes the checks, and manages the bank account process, for all of the entities that comprise Columbine Health Systems. [Defs’ 30(b)(6) Dep. 124:9-14; Ex. 21 and 22 (Matter No. 2)]. Q. No one at the various facilities that comprise Columbine Management Services is authorized to make deposits and write checks. [Defs’ 30(b)(6) Dep. 96:6- 99:12]. Columbine Management Services manages all of the accounts and is the only one authorized to issue checks. [Id. at 120:22-121:7]. R. When any of the subordinate facilities wish to buy materials or personal property for their operations, they must do so with the permission of Columbine Management Services and bill through Columbine Management Services. [Id. at 96:6- 99:12]. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 33 of 51 34 S. Billing and collection for all of the subordinate facilities that comprise Columbine Health Systems is done through Columbine Management Services. [Id. at 87:14-94:7]. T. For all entities under the Columbine Health Systems umbrella, all accounts payable, employee payroll, amounts due on short-term and long-term indebtedness, taxes, and insurance premiums are processed and paid through Columbine Management Services. [Id. at 99:14-24]. U. All of the facilities that comprise Columbine Health Systems are included in Defendant Columbine Management Services’ annual balance sheet. [See Ex. 28, CMS Balance Sheet (filed restricted access)]. 3. Factor 2: Defendants and other Entities that Comprise Columbine Health Systems are Commonly Managed. V. Wilson and Fancher have sole authority to hire, promote, discipline, and discharge facility administrators at not only New Mercer Commons but at all of the other facilities that comprise Columbine Health Systems. [Shorthill Dep. 26:21-27:6, 35:7-16; Ex. 23, 2006 Agreement, at 1 §1.02(a)]. W. All of the facility administrators directly report to Wilson and Fancher. [See Id. at 26:21-27:6, 35:12-16]. X. Joyce Shorthill is Director of Human Resources and is responsible for human resources functions at all of the entities that comprise Columbine Health Systems. [Rubala Dep. 43:3-4]. Y. Leave of absence requests, unemployment claims, and workers compensation insurance are all managed by Columbine Management Services for all of Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 34 of 51 35 the facilities that comprise Columbine Health Systems. [30(b)(6) Dep. 121:23-122:3; 67:25-4, 69:5-70:3]. Z. Payroll is administered by Columbine Management Services for all of the facilities that comprise Columbine Health Systems. [Id. at 77:6-20]. 4. Factor 3: Defendants and other Entities that Comprise Columbine Health Systems Have Centralized Labor Relations. AA. The facilities that comprise Columbine Health Systems do not have their own independent Human Resources employees or departments. All human resources functions, including pay and benefits, are managed by Columbine Management Services. [Defs’ 30(b)(6) 90:20-91:9)]. BB. All employee benefits programs, including health insurance, dental insurance, vision insurance, 401(k) plan, short- and long-term disability insurance, life insurance, supplemental insurance, prepaid legal plan, U.S. savings bonds, long-term care insurance, paid time off (PTO), and education assistance plans are established and managed by Columbine Management Services. [Id. at 248:25-251:2]. CC. Columbine Management Services determines “salary scales, personnel policies, appropriate employee benefits for all employees...including insurance benefits, incentive plans for key employees and holiday, vacation, personal leave and sick leave policies” for all of the entities that comprise Columbine Health Systems. [Id. at 90:15- 92:14]. DD. Although none of the entities are unionized, according to the “Management Agreement” between Columbine Management Services and the other entities that comprise Columbine Health Systems, Columbine Management Services Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 35 of 51 36 and Wilson are the sole bargaining agents on behalf of the entities in any union negotiations and Wilson has sole authority to approve and execute collective bargaining agreements. [Ex. 23, 2006 Agreement, at 2 § 1.02(j) (Columbine Management Services shall “negotiate on behalf of Owner (and in conjunction with Owner’s counsel) with any labor union...but any collective bargaining agreement or labor contract must be submitted to Owner for its approval and execution.”). EE. Columbine Management Services promulgated all of the personnel policies and created the Employee Handbook used at all of the facilities that comprise Columbine Health Systems. [See Ex. 26, Employee Handbook; Defs’ 30(b)(6) Dep. 129:12-130:6; Shorthill Dep. 31:11-21]. FF. Human Resources at Columbine Management Services have an “open door” policy where any employee from any facility that is part of Columbine Health Systems is entitled to make an appointment and come speak with HR about personnel problems to initiate an investigation. [30(b)(6) 175:21- 177:1]. GG. Columbine Management Services maintains an email address and a “1- 800 number” that employees at any facility in Columbine Health Systems may use to report personnel problems to human resources, including complaints of discrimination. [Defs’ 30(b)(6) Dep. 171:12-172:6]. 5. Factor 4: Defendants and other Entities that Comprise Defendant Columbine Management Services d/b/a Columbine Health Systems Share Interrelated Operations. HH. The entities that comprise Columbine Health Systems are located on three “campuses.” [Ex. 17]. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 36 of 51 37 II. Transportation for and/or between entities that comprise Columbine Health Systems is operated by Columbine Management Services. [Defs’ 30(b)(6) Dep. 119:17-120:2]. JJ. Penny Rubala, who designed the PCP written exam, was employed by Columbine Health Systems. [Rubala Dep. 25:14-26:15-19]. KK. In 2008 and 2009, Penny Rubala was the director of the Geriatric Education Center. The Geriatric Education Center is part of Columbine Health Systems and provides in-house leadership courses to employees who work for Columbine Health Systems, and in-house certification and training for the CNAs and PCPs employed at facilities within the Columbine Health Systems umbrella. [Rubala Dep. 36:10-13; 23:18- 24; 41:1-4; Ex. 7, Rubala Statement, at 2]. LL. The PCP written exam designed by Rubala while she directed the Geriatric Education Center was administered to all PCPs within Columbine Health Systems. [Lewis Dep. 152:22-24]. MM. The entities that comprise Columbine Health Systems share a website. See http://www.columbinehealth.com. NN. All of the entities in Columbine Health Systems share a centralized portal for job applicants. [Id. at http://www.columbinehealth.com/employment/index.html; See Ex. 29, Portal Printout]. OO. Job applicants for any position at any Columbine Health Systems entity are first vetted by Columbine Management Services before they are referred for further interviews with individual facilities. [Lewis Dep. 190:16-191:11]. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 37 of 51 38 If ever there was a textbook case of integrated enterprise, this is that case. Nearly every aspect of day-to-day operations is controlled by Wilson and Columbine Management Services, which not coincidentally, does business as Columbine Health Systems. All four of the factors to be considered indicate an integrated relationship, particularly centralized labor relations. The relationship between the entities that comprise Columbine Health System and Columbine Management Services are anything but “arms-length.” For this reason, the EEOC is entitled to judgment as a matter of law that Columbine Health Systems, and all its subordinate entities, including New Mercer Commons, comprise a single integrated enterprise that employed greater than 500 employees during the relevant time period. III. PLAINTIFFS ARE ENTITLED TO SUMMRAY JUDGEMENT ON DEFENDANTS’ SIXTH, EIGHTH, TWELTH, AND THIRTEENTH AFFIRMATIVE DEFENSES. Four of Defendants’ “affirmative defenses” have no basis in law or fact, and should be dismissed. The challenged defenses are the Sixth affirmative defense, which includes waiver and estoppel, the Eighth affirmative defense, bona fide occupational qualifications, the Twelfth affirmative defense, after-acquired evidence, and the Thirteenth affirmative defense, conditions precedent to suit. A. AFFIRMATIVE DEFENSE NO. 6: WAIVER 1. Burden of Proof and Elements Waiver of claims is an affirmative defense on which Defendants bear the burden of establishing that a Title VII plaintiff knowingly and voluntarily waived his or her rights. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 38 of 51 39 Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52 & n.15 (1974). A plaintiff cannot waive his or her rights prospectively; rather a plaintiff must knowingly and voluntarily waive her claims as part of a settlement agreement after the discrimination occurred. Id. 2. Elements That Cannot be Proven by Defendants: All Elements The following undisputed facts defeat Defendants’ defense of waiver: A. In response to the EEOC’s Interrogatory No. 17 requesting the factual basis for Defendants’ affirmative defenses, Defendants articulated that the facts supporting their waiver defense are (1) that the charge of discrimination filed by Kiros Aregahgn was filed more than six years ago; (2) that the EEOC did not conciliate in good faith and waited more than a year after conciliation failed to file this lawsuit; and (3) that Aggrieved Individuals Mohamed Mahgoub, Sawsan Ibrahim, Hanaa Gual, and Marlene Hoem never filed their own charges of discrimination. [Ex. 30, Defs.’ 3d Suppl. Resp. to EEOC’s First Set of Rogs., at 30-31]. B. When questioned about the factual bases for Defendants’ waiver defense, Defendants’ Rule 30(b)(6) designee stated that Defendants did not have any additional facts to support this defense. [Shorthill 30(b)(6) Dep. at 162:13-163:1]. Even assuming that all the facts alleged in Defendant’s discovery responses are true, they are not facts which show that any of the aggrieved individuals knowingly and voluntarily waived the claims at issue in this action as part of a settlement agreement. Accordingly, the EEOC is entitled to summary judgment on the affirmative defense of waiver. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 39 of 51 40 B. AFFIRMATIVE DEFENSE NO. 6: ESTOPPEL 1. Burden of Proof and Elements The party asserting equitable estoppel has the burden of establishing it applies. Nicholls v. Zurich Am. Ins. Group, 244 F. Supp. 2d 1144, 1157 (D. Colo. 2003). To meet this burden, a defendant must show that the plaintiff engaged in: “(1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the real facts.” Id. In addition, the party claiming estoppel must show that it (1) lacked knowledge and the means to obtain knowledge of the truth as to the facts in question; (2) relied upon the conduct of the party estopped; and (3) acted based on its reliance in a manner so as to change its position prejudicially. Tiberi v. CIGNA Corp., 89 F.3d 1423, 1429 (10th Cir. 1996). 2. Elements that cannot be Proven by Defendants: All Elements The following undisputed facts defeat Defendants’ defense of estoppel: A. In response to the EEOC’s Interrogatory No. 17 requesting the factual basis for Defendants’ affirmative defenses, Defendants articulated that the facts supporting their estoppel defense are (1) that the charge of discrimination filed by Kiros Aregahgn was filed more than six years ago; (2) that the EEOC did not conciliate in good faith and waited more than a year after conciliation failed to file this lawsuit; and (3) that Aggrieved Individuals Mohamed Mahgoub, Sawsan Ibrahim, Hanaa Gual, and Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 40 of 51 41 Marlene Hoem never filed their own charges of discrimination. [Ex. 30, Defs.’ 3d Suppl. Resp. to EEOC’s First Set of Rogs., at 30-31]. B. When questioned about the factual bases for Defendants’ estoppel defense, Defendants’ Rule 30(b)(6) designee stated that Defendants did not have any additional facts to support this defense. [Shorthill 30(b)(6) Dep. at 162:13-163:1]. Again, even assuming that all the facts Defendants allege are true, they are not facts which establish the elements of estoppel. At the crux of the matter, Defendants have identified no allegedly false representation or concealment by the EEOC or by any of the aggrieved individuals. The remainder of the estoppel analysis all depends on there being some specific false representation or concealment. Where there is no false representation or concealment, there can be no estoppel. Accordingly, given the lack of a factual basis, the EEOC is entitled to summary judgment on the affirmative defense of estoppel. C. AFFIRMATIVE DEFENSE NO. 8: BONA FIDE OCCUPATIONAL QUALIFICATION 1. Burden of Proof and Elements Under Section 703(e)(1) of Title VII, an employer may discriminate on the basis of “religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e- 2(e)(1). As the statute makes clear, the BFOQ exception is not available for racial discrimination. Id.; Burwell v. Eastern Air Lines, Inc., 633 F.2d 361, 370 n.13 (4th Cir. 1980). The BFOQ provision is “an extremely narrow exception” to the rule requiring Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 41 of 51 42 equality of employment opportunities. Dothard v. Rawlison, 433 U.S. 321, 334 (1977). “The BFOQ provision allows an employer, in certain cases, to make an employment decision of which it is conceded that sex [, religion, or national origin] is the cause.” Price Waterhouse v. Hopkins, 490 U.S. 228, 285 (1989). Thus, the BFOQ exception acts as a defense to overt or admitted discrimination in the very limited circumstances that sex, religion, or national origin itself actually interferes with the employee’s ability to perform the job. EEOC v. New Prime, Inc., 42 F. Supp. 3d 1201, 1213-14 (W.D. Mo. 2014). For example, being a female may be a BFOQ for a role playing Cinderella at Disney Land, or being Latino male may be a BFOQ for a movie role playing the role of Che Guevarra. 2. Elements that Cannot be Proven by Defendant: All Elements The following undisputed facts defeat Defendants’ BFOQ defense. A. In response to the EEOC’s Interrogatory No. 17 requesting the factual bases for Defendants’ affirmative defenses, Defendants articulated that their BFOQ defense is premised on the fact that the “training course and written exam about which EEOC complaints [sic] are protected as a bona fide occupational qualification.” [Ex. 30, Defs.’ 3d Suppl. Resp. to EEOC’s First Set of Rogs. at 31; see also Answer, Affirm. Def. ¶ 8]. B. When questioned about the factual bases for Defendants’ BFOQ defense, Defendants’ Rule 30(b)(6) designee stated that it was to ensure consistent practices and provide quality of care for residents. [Defs’ 30(b)(6) Dep. 166:5-167:8]. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 42 of 51 43 Defendants’ discovery responses demonstrate that they fundamentally misunderstand the BFOQ defense. Namely, regardless of what Defendants believes about the legitimacy of their PCP training course and exam, those beliefs do not establish a particular national origin is necessary to do the job, or conversely that an individual’s national origin prevents him or her from performing the personal care provider job. Accordingly, because the BFOQ exception is not a defense to racial discrimination and because Defendants fail to articulate any facts to support a BFOQ defense in this case, the EEOC is entitled to summary judgment on Affirmative Defense No. 8. D. Affirmative Defense No 12: After-Acquired Evidence 1. Burden of Proof and Elements After-acquired evidence is not a defense to liability, but instead may potentially limit back pay damages in limited circumstances. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362 (1995). An employer seeking to rely upon after-acquired evidence of wrongdoing must show that the “wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. Stated differently, to limit damages based on after-acquired evidence, and employer must prove that (1) it was unaware of the misconduct when the employee was discharged; (2) the misconduct would have justified discharge; and (3) it would have discharged the employee had it known of the misconduct. O’Neill v. Runyon, 898 F. Supp. 777, 781 (D. Colo. 1995). It is Defendants’ burden to establish that the after-acquired evidence rule applies. Id. Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 43 of 51 44 2. Elements that Cannot be Proven by Defendants: All Elements The undisputed facts show that Defendants’ defense fails on all grounds. Defendants had Kiros Aregahgn’s and Mohamed Mahgoub’s applications and were aware of their language abilities and any alleged misstatements at the time Aregahgn and Mahgoub were discharged, so they cannot say they were unaware of the supposed misconduct. Defendants have also failed to produce any evidence that these subjective statements about language fluency would have justified discharge. A. When asked in written discovery about the basis for this defense, Defendants stated: “[t]o the extent EEOC is arguing that Kiros Aregahgn, Mohamed Osman Mahgoub, Sawsan Ibrahim, and Hanaa Gual did not pass the PCP training course because they could not speak or read English, one or more of these individuals misrepresented in connection with their application for employment that they were fluent in English and qualified to perform the PCP job.” [Ex. 30, Defs.’ 3d Suppl. Resp. to EEOC’s First Set of Rogs. at 32]. B. Defendants identified Aregahgn and Mahgoub as the only two aggrieved individuals to which this defense applies. [Defs’ 30(b)(6) Dep. 181:1-3; 186:5-18; 188:15-19]. C. The only other facts Defendants have offered in support of this defense is that the EEOC hired interpreters for Aregahgn and Mahgoub’s depositions. [Id. at 186:19-187:12]. D. Aregahgn and Mahgoub stated on their applications that they were fluent in English. [Ex. 31, Aregahgn Application; Ex 32 Mahgoub Application]. Other Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 44 of 51 45 applicants, including Gual and Ibrahim, did not even answer the question and were still hired. [Ex. 33, Ibrahim Application; Ex. 34, Gual Application]. E. Defendants were aware of Aregahgn’s and Mahgoub’s statements on their applications at their time of hire. Aregahgn worked at New Mercer Commons for over nine years before she was terminated. [Ex 35, Termination Form]. Defendants did not learn about Aregahgn’s English-proficiency levels after her termination. F. Mahgoub worked at New Mercer Commons for over 17 months before he was terminated. [Ex. 36, Mahgoub Termination Form]. Defendants did not learn his English-proficiency level after his termination. G. In this litigation, Defendants contend that they already had concerns with Mahgoub’s and Aregahgn’s English proficiency and fluency before they were ever fired. [Defs’ 30(b)(6) Dep. at 187:15-188:3]. H. Defendant has provided no evidence that it fired any other employees, for allegedly over-stating their English-proficiency level in the job application process. In fact, Defendant has provided no evidence whatsoever that any employee was ever discharged for providing information in a job application that was later learned to be false or exaggerated. I. Defendant continues to employ PCPs who struggle at times with complex or technical English, albeit from countries not in Africa. [Rauch Dep. 101:12-19; 199:14- 23) (discussing Bandana Zimmie’s English proficiency)]. J. Similarly, Defendants have never done an assessment of the minimum English proficiencies required to perform the PCP position, nor did they ever formally Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 45 of 51 46 assess Aregahgn’s or Mahgoub’s English speaking capabilities. [Defs’ 30(b)(6) Dep. 181:4-14]. Based on the foregoing undisputed facts, Defendants cannot establish the elements of an after-acquired evidence defense. Defendants cannot claim they were unaware of Aregahagn’s and Mahgroub’s alleged misconduct. Defendants had Aregahgn’s and Mahgoub’s applications upon their date of hire. Thus, Defendants would be well apprised of any inconsistencies between statements on Aregahgn’s and Mahgoub’s applications and their purported lack of English fluency from day one. Yet Defendants continued to employ Aregahgn for nearly 10 years and Mahgoub for a year and a half. Furthermore, Defendants have failed to proffer any evidence that they would have discharged Aregahagn and Mahgroub based on the misrepresentation or exaggeration on their applications, particularly with respect to subjective statements about their English fluency. Finally, the fact that Aregahgn and Mahgoub used interpreters sparingly during their deposition is not material considering Defendants were well-aware of Aregahgn and Mahgoub’s English skills at the time they were terminated. Thus, because Defendants knew before Aregahgn’s and Mahgoub’s terminations about all the facts supporting their after-acquired evidence defense, and because there is no evidence that Aregahgn’s and Mahgoub’s statements on their applications regarding English fluency are of such import that Defendants would have fired them for Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 46 of 51 47 these alleged misstatements, summary judgment on Defendants after-acquired evidence defense is appropriate. E. AFFIRMATIVE DEFENSE NO. 13: CONDITIONS PRECEDENT TO SUIT 1. Burden of Proof and Elements Although there are several prerequisites to the EEOC filing suit under Title VII, Defendants only challenge one: whether the EEOC complied with its obligations to conciliate under Section 706(b) of Title VII. 42 U.S.C. § 2000e-5(b) (Where the Commission finds reasonable cause to believe unlawful discrimination has occurred, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”). Recently, in Mach Mining, LLC v. EEOC, --- U.S. ----, 135 S. Ct. 1645, 1656 (2015), the Supreme Court held that judicial review of the EEOC’s obligation to conciliate is “narrow, reflecting the abundant discretion the law gives the EEOC to decide the kind and extent of discussions appropriate in a given case.” See also id. at 1653 (describing the scope of review as “limited” and “relatively barebones”). Title VII requires that “the EEOC afford the employer a chance to discuss and rectify a specified discriminatory – but goes not further.” Thus, to satisfy its conciliation obligations, the EEOC need only “inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause’,” and (2) “engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.” Id. “Judicial review of those requirements (and nothing else) ensures that the Commission Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 47 of 51 48 complies with the statute.” Id. Importantly, for purposes of this case, “the EEOC alone decides whether in the end to make an agreement or resort to litigation: The Commission may sue whenever ‘unable to secure’” terms ‘acceptable to the Commission’.” Id. at 1654 (quoting 42 U.S.C. § 2000e-5(f)(1)); see also EEOC v. JetStream Ground Services, 134 F. Supp. 3d 1298, 1315-16 (D. Colo. 2015) (post- Mach Mining decision, explaining the Supreme Court’s decision when defendant similarly tried to challenge EEOC’s prerequisites to suit based on the EEOC’s conciliation efforts). 2. Elements that Cannot be Proven by Defendants: Element Two Defendants cannot dispute that EEOC made the requisite showing under Mach Mining and so summary judgment is warranted on their preconditions to suit defense. A. Defendants admit that they received a letter of determination finding reasonable cause. [Compare Am. Compl. ¶ 17 with Answer ¶ 17]. B. Defendants do not contest that the EEOC engaged in a discussion to give them an opportunity to remedy the allegedly discriminatory practice. [See Defs’ 30(b)(6) Dep. at 191:17-23, 192:8-20]. C. Defendants’ only basis for contending that the EEOC failed its conciliation obligations is that they believe the EEOC did not communicate individual offers of settlement to the aggrieved individuals. [Id. at 191:24-192:7]. The EEOC can neither confirm nor deny whether particular individual offers of settlement were conveyed to the aggrieved individuals or what their responses may have been during conciliation because the EEOC is prohibited from revealing publicly Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 48 of 51 49 anything “said or done during and as part of such informal [conciliation] endeavors.” 42 U.S.C. §2000e-5(b) (setting forth a penalty of a fine not more than $1,000 or imprisonment for not more than a year, or both, for any person making such information public). Additionally, all parties are prohibited from using evidence of what was said or done in conciliation “as evidence in a subsequent proceeding without the written consent of the persons concerned.” Id. Nevertheless, for purposes of this motion, we take as true Defendant’s allegations that the EEOC did not communicate individual offers of settlement to the aggrieved individuals. Even so Defendants fail to meet their burden of establishing a conciliation failure defense as Title VII vests the EEOC, and not the aggrieved individuals, with sole discretion over whether to reach a conciliation agreement or resort to litigation. Mach Mining, 135 S. Ct. at 1654 (quoting 42 U.S.C. § 2000e-5(f)(1)). Accordingly, the EEOC is entitled to summary judgment on Affirmative Defense No. 13. IV. CONCLUSION The EEOC has satisfied its burden of articulating a prima facie disparate impact case. Conversely, Defendants made no effort to validate the exam or conform with the Uniform Guidelines and therefore cannot meet its burden to show that the exam is job related and consistent with business necessity. Kiros Aregahgn, Mohamed Osman Mahgoub, Sawson Ibrahim, and Hanaa Gual all lost their jobs and their livelihoods as a result of their test scores. And they are not just some statistic, but real people who suffered real consequences as a direct result of Defendants’ actions. For these reasons, summary judgment is warranted. Moreover, the incontrovertible evidence also shows Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 49 of 51 50 that Defendants are an integrated enterprise with over 500 employees and that Defendants’ Sixth, Eighth, Twelfth, and Thirteenth affirmative defenses either lack sufficient legal or factual basis to create a genuine issue of material fact, even when viewed in a light most favorable. With respect to these issues and defenses, summary judgment is also called for. Respectfully Submitted, /s/ Iris Halpern Senior Trial Attorney Michael Imdieke Trial Attorney EEOC Denver Field Office 303 East 17th Avenue, Suite 410 Denver, Colorado 80203 Phone: (303) 866-1374 iris.halpern@eeoc.gov Counsel for Plaintiff Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 50 of 51 51 CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 29, 2016, I electronically filed the foregoing with the Clerk of the Court using CM/ECF system, which will send notification of such filing to the following e-mail addresses: Mary Hurley Stuart, Esq. Barbara A. Grandjean, Esq. Husch Blackwell LLP 1700 Lincoln Street, Suite 4700 Denver, CO 80203 Tel: 303-749-7200 Fax: 303-749-7272 Mary.Stuart@huschblackwell.com Barbara.Grandjean@huschblackwell.com Attorneys for Defendants s/ Iris Halpern Senior Trial Attorney Case 1:15-cv-01597-MSK-CBS Document 64 Filed 09/30/16 USDC Colorado Page 51 of 51 PCP Training Course (January 1, 2009 to December 24, 2015) Date of Training Date of Training End date Last name First name Race Natl Origin Scores obtained Terminated 4/22/2009 4/24/2009 Aregahgn Kiros Black or African American (Not Hispanic or Latino) not collected@Hire 66% Yes 4/22/2009 4/24/2009 Muktar Samira Black or African American (Not Hispanic or Latino) not collected@Hire 88% 4/22/2009 4/24/2009 Mahgoub Mohamed Black or African American (Not Hispanic or Latino) not collected@Hire 70% Yes 4/22/2009 4/24/2009 Ibrahim Sawsan Black or African American (Not Hispanic or Latino) not collected@Hire 50% Yes 4/22/2009 4/24/2009 Musa Elham Black or African American (Not Hispanic or Latino) not collected@Hire 86% 4/22/2009 4/24/2009 Gual Hanaa Black or African American (Not Hispanic or Latino) not collected@Hire 42% Yes 4/22/2009 4/24/2009 Schell Rhonda White (Not Hispanic or Latino) not collected@Hire 86% 4/22/2009 4/24/2009 Bergey Jeanne White (Not Hispanic or Latino) not collected@Hire 93% 4/22/2009 4/24/2009 Erickson Karen White (Not Hispanic or Latino) not collected@Hire 97% 4/22/2009 4/24/2009 Hernandez Freia Hispanic or Latino not collected@Hire 84% 4/22/2009 4/24/2009 Young Teresa White (Not Hispanic or Latino) not collected@Hire 98% 4/26/2009 4/28/2009 Schiller Pam White (Not Hispanic or Latino) not collected@Hire 93% 4/26/2009 4/28/2009 Hill Amy White (Not Hispanic or Latino) not collected@Hire 96% 4/26/2009 4/28/2009 Echols Brenda White (Not Hispanic or Latino) not collected@Hire 80% 4/26/2009 4/28/2009 Jorgenson Susan White (Not Hispanic or Latino) not collected@Hire 96% 6/23/2009 6/25/2009 Wood Elizabeth White (Not Hispanic or Latino) not collected@Hire 96% 6/23/2009 6/25/2009 Zimmie Bandana Black or African American (Not Hispanic or Latino) not collected@Hire 79% 6/23/2009 6/25/2009 Shern Vanessa White (Not Hispanic or Latino) not collected@Hire 96% 6/23/2009 6/25/2009 Salazar Ashley Hispanic or Latino not collected@Hire 96% 6/23/2009 6/25/2009 Aguirre Danielle Hispanic or Latino not collected@Hire 85% 6/23/2009 6/25/2009 Houk Susan White (Not Hispanic or Latino) not collected@Hire 100% 6/23/2009 6/25/2009 Zumwalt Sharon White (Not Hispanic or Latino) not collected@Hire 99% 6/23/2009 6/25/2009 Alvarez Tita Hispanic or Latino not collected@Hire 86% 6/23/2009 6/25/2009 Conklin Jane White (Not Hispanic or Latino) not collected@Hire 97% 10/7/2009 10/9/2009 Dekkers Gretchen White (Not Hispanic or Latino) not collected@Hire 92% 10/7/2009 10/9/2009 Benson Rose Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) not collected@Hire 75% 10/7/2009 10/9/2009 Britten Jade White (Not Hispanic or Latino) not collected@Hire 97% 10/7/2009 10/9/2009 Gloe Colleen White (Not Hispanic or Latino) not collected@Hire 92% 10/7/2009 10/9/2009 Garcia Shantelle Hispanic or Latino not collected@Hire 91% 10/7/2009 10/9/2009 Loonan Molly White (Not Hispanic or Latino) not collected@Hire 87% 11/30/2009 12/2/2009 Nicols Sarah White (Not Hispanic or Latino) not collected@Hire 100% 11/30/2009 12/2/2009 Stolzenburg Mary White (Not Hispanic or Latino) not collected@Hire 91% 11/30/2009 12/2/2009 Shorma Julie White (Not Hispanic or Latino) not collected@Hire 76% 11/30/2009 12/2/2009 Gore Cerise White (Not Hispanic or Latino) not collected@Hire 95% DEN-83739-3 EXHIBIT B Response to Interrogatory No. 2 (Updated 6/3/16) Exhibit 1 Case 1:15-cv-01597-MSK-CBS Document 64-1 Filed 09/30/16 USDC Colorado Page 1 of 6 PCP Training Course (January 1, 2009 to December 24, 2015) Date of Training Date of Training End date Last name First name Race Natl Origin Scores obtained Terminated 11/30/2009 12/2/2009 Rinken April White (Not Hispanic or Latino) not collected@Hire 82% 11/30/2009 12/2/2009 Deering Rachel Project Search student - internship not collected@Hire 77% 1/4/2010 01/6/2010 Rauch Victoria Hispanic or Latino not collected@Hire 100% 1/4/2010 01/6/2010 Detwiler Sheila White (Not Hispanic or Latino) not collected@Hire 93% 1/4/2010 01/6/2010 Heath Wendy White (Not Hispanic or Latino) not collected@Hire 100% 1/4/2010 01/6/2010 Scammell Donita White (Not Hispanic or Latino) not collected@Hire 90% 1/4/2010 01/6/2010 Soland Jessica American Indiana or Alaskan Native (Not Hispanic or Latino) not collected@Hire 96% 1/4/2010 01/6/2010 Dowd Rebekah White (Not Hispanic or Latino) not collected@Hire 91% 1/4/2010 01/6/2010 Uphoff Jenna White (Not Hispanic or Latino) not collected@Hire 96% 1/4/2010 01/6/2010 Parrish Jillian White (Not Hispanic or Latino) not collected@Hire 93% 1/4/2010 01/6/2010 Lohry Pippi White (Not Hispanic or Latino) not collected@Hire 82% 1/18/2010 01/29/2010 Metten Mark White (Not Hispanic or Latino) not collected@Hire 99% 1/18/2010 01/29/2010 Ontiveros Jolene Hispanic or Latino not collected@Hire 92% 1/18/2010 01/29/2010 Alwalda Khadija Black or African American (Not Hispanic or Latino) not collected@Hire 95% 1/18/2010 01/29/2010 Johnson-Horn Jane White (Not Hispanic or Latino) not collected@Hire 100% 1/18/2010 01/29/2010 Medina Laura Hispanic or Latino not collected@Hire 98% 1/18/2010 01/29/2010 Vander Wilt Lois White (Not Hispanic or Latino) not collected@Hire 100% 3/17/2010 03/19/2010 Hawkey Danielle White (Not Hispanic or Latino) not collected@Hire 97% 3/17/2010 03/19/2010 Ford Alison White (Not Hispanic or Latino) not collected@Hire 98% 3/17/2010 03/19/2010 Seilder Denise White (Not Hispanic or Latino) not collected@Hire 80% 3/17/2010 03/19/2010 Barrett Reyna Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) not collected@Hire 78% 3/17/2010 03/19/2010 Belcher Zachary White (Not Hispanic or Latino) not collected@Hire 95% 3/17/2010 03/19/2010 Fortkamp Gina White (Not Hispanic or Latino) not collected@Hire 89% 3/17/2010 03/19/2010 Strodtman Rachael White (Not Hispanic or Latino) not collected@Hire 97% 3/17/2010 03/19/2010 Parsons Kathyrn White (Not Hispanic or Latino) not collected@Hire 96% 3/17/2010 03/19/2010 Lilly Lisa White (Not Hispanic or Latino) not collected@Hire 100% 3/17/2010 03/19/2010 Cason Eliza White (Not Hispanic or Latino) not collected@Hire 95% 4/7/2010 04/14/2010 Smith Jenny White (Not Hispanic or Latino) not collected@Hire 92% 4/7/2010 04/14/2010 Moburg Joscelyn White (Not Hispanic or Latino) not collected@Hire 100% 4/7/2010 04/14/2010 Saunders Amanda White (Not Hispanic or Latino) not collected@Hire 97% 4/7/2010 04/14/2010 Martinez Maria Hispanic or Latino not collected@Hire 90% 4/7/2010 04/14/2010 Thomas Stacie White (Not Hispanic or Latino) not collected@Hire 90% 4/7/2010 04/14/2010 Asmussen Priscilla White (Not Hispanic or Latino) not collected@Hire 95% 4/7/2010 04/14/2010 Dargon Sheila White (Not Hispanic or Latino) not collected@Hire 98% DEN-83739-3 EXHIBIT B Response to Interrogatory No. 2 (Updated 6/3/16) Case 1:15-cv-01597-MSK-CBS Document 64-1 Filed 09/30/16 USDC Colorado Page 2 of 6 PCP Training Course (January 1, 2009 to December 24, 2015) Date of Training Date of Training End date Last name First name Race Natl Origin Scores obtained Terminated 4/7/2010 04/14/2010 Minnick Patty White (Not Hispanic or Latino) not collected@Hire 98% 4/7/2010 04/14/2010 Round Sharon White (Not Hispanic or Latino) not collected@Hire 95% 4/7/2010 04/14/2010 Perez David Hispanic or Latino not collected@Hire 99% 4/7/2010 04/14/2010 Ibarra Angela Hispanic or Latino not collected@Hire 86% 4/7/2010 04/14/2010 Perez Vanessa Hispanic or Latino not collected@Hire 82% 4/7/2010 04/14/2010 Corwin Alyce White (Not Hispanic or Latino) not collected@Hire 98% 4/7/2010 04/14/2010 Cerrone Jessica White (Not Hispanic or Latino) not collected@Hire 96% 10/12/2010 10/14/2010 Marris Linda White (Not Hispanic or Latino) not collected@Hire 87% 10/12/2010 10/14/2010 Ford Melinda White (Not Hispanic or Latino) not collected@Hire 95% 10/12/2010 10/14/2010 Demmer Donna White (Not Hispanic or Latino) not collected@Hire 94% 10/12/2010 10/14/2010 Hawkins Jessica White (Not Hispanic or Latino) not collected@Hire 97% 10/12/2010 10/14/2010 Moss Candice White (Not Hispanic or Latino) not collected@Hire 97% 10/12/2010 10/14/2010 Ratschkowsky Cathy White (Not Hispanic or Latino) not collected@Hire 93% 10/12/2010 10/14/2010 Petersen Cheryl White (Not Hispanic or Latino) not collected@Hire 91% 10/12/2010 10/14/2010 Perez Amber Hispanic or Latino not collected@Hire 84% 10/12/2010 10/14/2010 Brown Gabriella White (Not Hispanic or Latino) not collected@Hire 97% 10/12/2010 10/14/2010 Wynn Brittany White (Not Hispanic or Latino) not collected@Hire 90% 10/12/2010 10/14/2010 Clark Emily White (Not Hispanic or Latino) not collected@Hire 93% 10/12/2010 10/14/2010 Magisano Kelsi Black or African American (Not Hispanic or Latino) not collected@Hire 97% 11/8/2010 11/12/2010 Green Henry White (Not Hispanic or Latino) not collected@Hire 97% 11/8/2010 11/12/2010 Martin Leslie Hispanic or Latino not collected@Hire 97% 11/8/2010 11/12/2010 Oppenheimer Heidi White (Not Hispanic or Latino) not collected@Hire 97% 11/8/2010 11/12/2010 Salazar Jessica Hispanic or Latino not collected@Hire 97% 11/8/2010 11/12/2010 Torpy Therese No info No info 95% 1/5/2011 01/7/2011 Fallis Jurguen Hispanic or Latino not collected@Hire 89% 1/5/2011 1/7/2011 Salazar Natasha No info No info 84% 1/5/2011 1/7/2011 Johnson Shalaney White (Not Hispanic or Latino) not collected@Hire 88% 1/5/2011 1/7/2011 Spencer Julie White (Not Hispanic or Latino) not collected@Hire 91% 1/5/2011 1/7/2011 Lohman Michael No info No info 93% 1/5/2011 1/7/2011 Ludlow Sara No info No info 86% 1/5/2011 1/7/2011 McMillan Dayton No info No info 93% 1/5/2011 1/7/2011 Sokol Sharon No info No info 95% 1/5/2011 1/7/2011 Treiber Cathy No info No info 91% 1/5/2011 1/7/2011 Schlater Eliza White (Not Hispanic or Latino) not collected@Hire 93% DEN-83739-3 EXHIBIT B Response to Interrogatory No. 2 (Updated 6/3/16) Case 1:15-cv-01597-MSK-CBS Document 64-1 Filed 09/30/16 USDC Colorado Page 3 of 6 PCP Training Course (January 1, 2009 to December 24, 2015) Date of Training Date of Training End date Last name First name Race Natl Origin Scores obtained Terminated 3/25/2011 03/27/2011 Jones Lincoln White (Not Hispanic or Latino) not collected@Hire 65% Yes 3/25/2011 03/27/2011 Musso Brianna Hispanic or Latino not collected@Hire 78% 3/25/2011 03/27/2011 Rodriquez Samantha Hispanic or Latino not collected@Hire 84% 3/25/2011 03/27/2011 Baldwin Amanda White (Not Hispanic or Latino) not collected@Hire 86% 3/25/2011 03/27/2011 Webster Tiffany No info No info 89% 10/4/2013 10/6/2013 Brandt Faith No info not collected@Hire 97% 10/4/2013 10/6/2013 McCoy Torrey White (not Hispanic or Latino) not collected@Hire 100% 10/4/2013 10/6/2013 Young Timothy White (not Hispanic or Latino) not collected@Hire 100% 10/4/2013 10/6/2013 Peterson Tabitha No info not collected@Hire 100% 10/4/2013 10/6/2013 King Hayley No info not collected@Hire 100% 10/4/2013 10/6/2013 Wright Megan White (not Hispanic or Latino) not collected@Hire 100% 10/4/2013 10/6/2013 Russell Karen White (not Hispanic or Latino) not collected@Hire 100% 10/4/2013 10/6/2013 Rayas Lambrie No info not collected@Hire 100% 10/4/2013 10/6/2013 Freeman Elisabeth No info No info 100% 10/4/2013 10/6/2013 Wilson Jennifer No info No info 100% 10/4/2013 10/6/2013 Patrick Stacey White (not Hispanic or Latino) not collected@Hire 100% 11/18/2013 11/21/2013 Welsh Sarah White (not Hispanic or Latino) not collected@Hire 100% 11/18/2013 11/21/2013 Brown Susan White (not Hispanic or Latino) not collected@Hire 100% 11/18/2013 11/21/2013 Delarosa Cynthia White (not Hispanic or Latino) not collected@Hire 100% 11/18/2013 11/21/2013 Due Crystal White (not Hispanic or Latino) not collected@Hire 100% 11/18/2013 11/21/2013 Johnston Brianne White (not Hispanic or Latino) not collected@Hire 100% 11/18/2013 11/21/2013 Santillan Clara Hispanic or Latino not collected@Hire 100% 11/18/2013 11/21/2013 Schwindt MiKayla White (not Hispanic or Latino) not collected@Hire 100% 4/16/2014 4/18/2014 Sponsler Olga No info No info 100% 4/16/2014 4/18/2014 Guzman Esperanza Hispanic or Latino not collected@Hire 100% 4/16/2014 4/18/2014 Matteson Mary Jo White (not Hispanic or Latino) not collected@Hire 100% 4/16/2014 4/18/2014 Oldright Karen White (not Hispanic or Latino) not collected@Hire 100% 4/16/2014 4/18/2014 Cortez Kayla Hispanic or Latino not collected@Hire 100% 4/16/2014 4/18/2014 Brown Annette No info No info 100% 4/16/2014 4/18/2014 Baker Talyn No info No info 100% 4/16/2014 4/18/2014 Burkett Nicole No info No info 100% 8/13/2014 8/15/2014 Little Kendra White (not Hispanic or Latino) not collected@Hire 100% 8/13/2014 8/15/2014 Jacks Megan White (not Hispanic or Latino) not collected@Hire 100% 8/13/2014 8/15/2014 Bowman Jenny No info not collected@Hire 100% DEN-83739-3 EXHIBIT B Response to Interrogatory No. 2 (Updated 6/3/16) Case 1:15-cv-01597-MSK-CBS Document 64-1 Filed 09/30/16 USDC Colorado Page 4 of 6 PCP Training Course (January 1, 2009 to December 24, 2015) Date of Training Date of Training End date Last name First name Race Natl Origin Scores obtained Terminated 8/13/2014 8/15/2014 Griffith Marcia White (not Hispanic or Latino) not collected@Hire 100% 8/13/2014 8/15/2014 Green Jason White (not Hispanic or Latino) not collected@Hire 100% 8/13/2014 8/15/2014 Marquez Abril Hispanic or Latino not collected@Hire 100% 8/13/2014 8/15/2014 Harris Katherine No info not collected@Hire 100% 8/13/2014 8/15/2014 Darley Linda No info No info 100% 8/13/2014 8/15/2014 Fens Kathryn No info No info 100% 12/15/2014 12/17/2014 Tsuyama Kaylynn Asian (Not hispanic or Latino) not collected@Hire 100% 12/15/2014 12/17/2014 Gilson Jean White (not Hispanic or Latino) not collected@Hire 100% 12/15/2014 12/17/2014 Gregg Jessica White (not Hispanic or Latino) not collected@Hire 100% 12/15/2014 12/17/2014 Spangler Leilani White (not Hispanic or Latino) not collected@Hire 100% 4/22/2015 4/24/2015 Freed Kayla White (not Hispanic or Latino) not collected@Hire 100% 4/22/2015 4/24/2015 McCord Courtney White (not Hispanic or Latino) not collected@Hire 100% 4/22/2015 4/24/2015 Fernandez Bianca No info not collected@Hire 100% 4/22/2015 4/24/2015 Villarreal Laura Hispanic/Latino not collected@Hire 100% 4/22/2015 4/24/2015 Suhr Kyli No info not collected@Hire 100% 4/22/2015 4/24/2015 Short Angelina White (not Hispanic or Latino) not collected@Hire 100% 4/22/2015 4/24/2015 Aldrich Angela No info No info 100% 12/9/2015 12/11/2015 Bright Donna No info not collected@Hire 96.50% 12/9/2015 12/11/2015 Echelberger Alison No info not collected@Hire 96.50% 12/9/2015 12/11/2015 Baca Audrey No info not collected@Hire 98% 12/9/2015 12/11/2015 Isaacs Tori No info not collected@Hire 100% 12/9/2015 12/11/2015 Lawrence Janice No info not collected@Hire 100% 12/9/2015 12/11/2015 Portrey Terry No info not collected@Hire 98% 12/9/2015 12/11/2015 Saxe Allyson White (Not Hispanic or Latino) not collected@Hire 96.50% 02/21,2/23 2/25/2011 Van Hoesen Natalie White (Not Hispanic or Latino) not collected@Hire 98% 02/21,2/23 2/25/2011 McCarty Ashleigh No info No info 80% 02/21,2/23 2/25/2011 Johnson Kaitlin White (Not Hispanic or Latino) not collected@Hire 86% 02/21,2/23 2/25/2011 Meyers Paula White (Not Hispanic or Latino) not collected@Hire 98% 02/21,2/23 2/25/2011 Fry Sarah White (Not Hispanic or Latino) not collected@Hire 100% 02/21,2/23 2/25/2011 Barrall Joni No info No info 86% 02/21,2/23 2/25/2011 Breeding Catherine No info No info 84% 02/21,2/23 2/25/2011 Cox Katie No info No info 93% 02/21,2/23 2/25/2011 Garcia Bryanna No info No info 93% 02/21,2/23 2/25/2011 Shideler Diana No info No info 38% DEN-83739-3 EXHIBIT B Response to Interrogatory No. 2 (Updated 6/3/16) Case 1:15-cv-01597-MSK-CBS Document 64-1 Filed 09/30/16 USDC Colorado Page 5 of 6 PCP Training Course (January 1, 2009 to December 24, 2015) Date of Training Date of Training End date Last name First name Race Natl Origin Scores obtained Terminated 06/07, 06/14/2010 06/18/2010 Ochoa Rachel Hispanic or Latino not collected@Hire 100% 06/07, 06/14/2010 06/18/2010 Gallegos Angela Hispanic or Latino not collected@Hire 100% 06/07, 06/14/2010 06/18/2010 Bikos Josephine Asian (Not Hispanic or Latino) not collected@Hire 100% 06/07, 06/14/2010 06/18/2010 Saunders Elizabeth White (Not Hispanic or Latino) not collected@Hire 100% 06/07, 06/14/2010 06/18/2010 Slusarczyk Greg White (Not Hispanic or Latino) not collected@Hire 100% 06/07, 06/14/2010 06/18/2010 Martin Sarah Hispanic or Latino not collected@Hire 100% 06/07, 06/14/2010 06/18/2010 Remnant Andy White (Not Hispanic or Latino) not collected@Hire 100% 06/07, 06/14/2010 06/18/2010 Hinch Katie White (Not Hispanic or Latino) not collected@Hire 100% 06/07, 06/14/2010 06/18/2010 Page Kelli White (Not Hispanic or Latino) not collected@Hire 07/19/, 07/26/2010 07/29/2010 McPherson Ashley White (Not Hispanic or Latino) not collected@Hire 94% 07/19/, 07/26/2010 07/29/2010 Mundt Derek Hispanic or Latino not collected@Hire 94% 07/19/, 07/26/2010 07/29/2010 Caudillo Lindsey Hispanic or Latino not collected@Hire 89% 07/19/, 07/26/2010 07/29/2010 Struble Sonya White (Not Hispanic or Latino) not collected@Hire 93% 07/19/, 07/26/2010 07/29/2010 Grossman Amy White (Not Hispanic or Latino) not collected@Hire 100% DEN-83739-3 EXHIBIT B Response to Interrogatory No. 2 (Updated 6/3/16) Case 1:15-cv-01597-MSK-CBS Document 64-1 Filed 09/30/16 USDC Colorado Page 6 of 6 Exhibit 2 Case 1:15-cv-01597-MSK-CBS Document 64-2 Filed 09/30/16 USDC Colorado Page 1 of 2 Exhibit 2 Case 1:15-cv-01597-MSK-CBS Document 64-2 Filed 09/30/16 USDC Colorado Page 2 of 2 A Statistical Test for Differences in Passing Rates for Two Groups Dr. Thomas M. Haladyna September 29, 2016 This report supplements my expert report (Haladyna, July 29, 2016). Two groups are being contrasted in terms of their passing rate on a job-knowledge test. The number of observations is 184 persons. As the table below shows, Group 1 consists of 138 classified students who also had test scores. Those whom are unclassified as to race/ethnicity are not counted in this group. This fact accounts for the 39 students were not included in Group 1 for reasons listed below. Group 1 Number Included White 103 Yes African American 2 Yes Hispanic/Latino 28 Yes Native Hawaiian or Other 2 Yes American Indian or Alaska Native 1 Yes Asian 2 Yes Project Search Membership 1 No White student with no test score 1 No Student with no racial/ethnic classification who failed. 1 No Unclassified as to race/ethnicity 36 No 177 Group 2 consists of 7 persons each of whom was identified as of African-origin background and an immigrant. The total number of observations is 184 persons. Group 1 had a passing rate of 99.3% (137 of 138). Group 2 has a passing rate of 42.8% (3 of 7). The null hypothesis is that these two passing rates come from the sample population. The alternate hypothesis is that the two passing rates come from different populations. The appropriate statistical procedure is a test of two proportions (Kanji, 1993, p. 25). Observations Passing Rate Group 1 138 99.3% Group 2 7 42.8% Statistical significance is used as a criterion for determining whether the null or alternate hypothesis is accepted. The criterion for statistical significance is a probability threshold of 0.05. The statistical test produces a Z-statistic. If this statistic is less than 2 standard deviations, the null hypothesis (no difference) is accepted. If the statistic is more than 2 standard deviations, then the alternate hypothesis (difference exists) is accepted. Exhibit 3 Case 1:15-cv-01597-MSK-CBS Document 64-3 Filed 09/30/16 USDC Colorado Page 1 of 3 The resulting Z-statistic is 6.78 with an associated probability of very nearly zero. As the Z statistic criterion for statistical significance at 0.05 is 2.00 standard deviations, the null hypothesis is rejected. A Z-statistic of this magnitude is well beyond the criterion of two or three standard errors. Practically speaking, the two groups differ in passing rates by 57.2%. Z-statistic Associated Probability Criterion 2.00 0.050 Result 6.78 < 0.001 Dr. Harpe stated in her report that sample size may be an issue, as there were only 7 observations for group 2. This is not an issue. Siegel (1955) discussed the use of this test for small samples. Usually, small samples reduce the power of a statistical test—that is, the null hypothesis is more likely to be accepted. As shown here, that was not the case. The analysis was robust to detect a very obvious large difference. This section makes some additional comparison in passing rates of White students compared with the Black or African-American students and Hispanic/Latino students with the Black or African-American students. Group Observations Passing Rate White students 103 99.3% Hispanic/Latino students 28 100% Black or African-American students 9 55.6% The Z-statistic for the comparison of White students to Black or African- American students was 6.33, with an associated probability of less than 0.001. As with the larger sample, the result is statistically significant. The Z-statistic is well beyond the threshold set at 2.00 standard deviations for statistical significant (6.33 versus. 2.00). The Z-statistic for the comparison of Hispanic/Latino Students to Black students was 3.73 with an associated probability of less than 0.001. Because the sample size was smaller, the Z-statistic was smaller than the previous comparison involving White students. Nonetheless, the results were again statistically significant and well exceed two standard deviations for statistical significant (3.73 versus 2.00). The main and supplemental results show that the effect size (practical significance) of the difference in passing rates of the Black or African-American students is so great that virtually any statistical comparisons with other groups will show that there is a sizable gap in the passing rates of these Black or African-American students and the other contrast groups. Case 1:15-cv-01597-MSK-CBS Document 64-3 Filed 09/30/16 USDC Colorado Page 2 of 3 References Haladyna, T. M. (July 29, 2016). EEOC v. Columbine Management Services, Inc. United States District Court for the District of Columbia 15-cv-01597-MSK-CBS. Phoenix, AZ: Author. Harpe, L. (September 14, 2016) EEOC v. Columbine Management Services, Inc. United States District Court for the District of Columbia 15-cv-01597-MSK-CBS: Rebuttal Expert Report. Raleigh, NC: Peoplefluent Research Institute Kanji, G. K. (1993). 100 Statistical Tests. Newbury Park, CA: Sage. Siegel, S. (1955). Non parametric statistics. New York: McGraw-Hill. Case 1:15-cv-01597-MSK-CBS Document 64-3 Filed 09/30/16 USDC Colorado Page 3 of 3 EEOC v. Columbine Management Services, Inc. United States District Court for the District of Columbia 15-cv-01597-MSK-CBS Rebuttal Expert Report Lisa Harpe, PhD Peoplefluent Research Institute Peoplefluent September 14, 2016 Exhibit 4 Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 1 of 10 1 Adverse Impact of the PCP Assessment Dr. Haldyana’s Analyses Dr. Haldyana presents two different analyses suggesting that the New Mercer Personal Care Provider (PCP) assessment had an adverse impact against “Blacks or African Americans” and against persons “positively identified as having Africa countries as their nations of origin.” In his first analysis, he compares the assessment results of Black or African Americans to Whites and then to Hispanics. Out of 184 total test scores, his operational sample of 141 includes 104 Whites, nine Blacks or African Americans and 28 Hispanics or Latinos. In his first analysis, he compares the mean assessment scores of the three groups and concludes that the mean score of Blacks or African Americans is significantly lower than that of Whites or Hispanics. Next, Dr. Haldyana examines adverse impact using the 4/5ths rule as outlined by the Uniform Guidelines on Employee Selection Procedures (UGESP, 1978). According to this rule, if the passing rate of the least favored group is less than 80% of the passing rate of the most favored group, there is evidence of adverse impact. Dr. Haldyana notes that the passing rate of the Blacks or African Americans (56%) is less than 80% of the passing rate of Whites (99%) or Hispanics (100%). In addition, Dr. Haldyana states that the difference in passing rates between Blacks or African Americans and Whites and the difference in passing rates between Blacks or African Americans and Hispanics is statistically significant. Dr. Haldyana goes on to conduct similar analyses with similar results looking at just positively identified African natives as a group compared to non-African natives as a group. Dr. Haldyana’s reporting of the numbers of non-African natives is confusing. On page 5 of his report, he notes that CMS (Columbine Management Services, Inc.) provided data on 184 persons who completed the PCP training. On page 8, he identifies ‘the African group of seven’ and ‘the 175 other persons’ for a total of 182 persons (i.e., 7 + 175). However, in a table on page 8, reporting the pass rates of Africans and non- Africans, he identifies the ‘African Pass Rate – 7’ and the ‘All Others Pass Rate - 172’ for a total of 179 persons (i.e., 7 + 172). With 184 test records and seven identified African natives, it seems that there should be 177 non-African natives. New Mercer records indicate six total test scores below 75%, four attributed to the identified African natives and two to purportedly non-African natives. For purposes of this report, assuming that all of the employees not identified as African natives are non-African natives, there are seven African natives with four failing the assessment and 177 non-African natives with two failing the assessment. We will use these numbers throughout the rest of this report. Impact of Small Numbers One potential issue with the analysis of the impact of a selection procedure is the size of the groups being analyzed, such as when the analysis pool is very large or very small or when one of the comparison groups is very small. In particular, in the current case, the number of positively identified African natives is extremely small (7) compared to the number of non-African natives (177). There is some uncertainty about the accuracy of the counts of African natives. Dr. Haldyana identified seven individuals as natives of Africa (Aregahgn, Gual, Ibrahim, Mahgoub, Muktar, Musa, and Alwalda). We Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 2 of 10 2 have test scores for 184 individuals. Dr. Haldyana presumes that the seven currently identified African natives are the only African natives. New Mercer does not solicit information on national origin so it is difficult to ascertain the national origin of all 184 individuals who have taken the assessment. In particular, New Mercer has almost no information on external participants who appear to have been included in the analysis. But let’s assume that the seven currently identified African natives are the only African natives who have taken the PCP assessment. Dr. Haldyana presents information that 3/7 (43%) African natives passed the assessment. Presuming the remaining employees are non-African natives, 174/177 (98.3%) of non-African natives passed the assessment. Africans comprise 3.8% of the total population of employees with test scores, a very small number. The impact of the small numbers becomes apparent when you calculate the passing rate. Suppose, out of the seven Africans and 177 non-Africans, only one African and one non-African failed the test. For the Africans, the pass rate would be 85.7%. For the non-Africans, the pass rate is 99.4%. The same number have failed but the difference in passing rates is large, due to the small total number of African natives. The table below shows the change in passing rate as the number of Africans and non- Africans who passed the assessment decreases by one. Each additional African failing decreases the pass rate by 14.3%. In comparison, each additional non-African who fails the assessment decreases the passing rate by 0.6%. The impact of the small number of Africans will become apparent later in the report. Table 1. Changes in passing rate for each additional person failing the assessment Africans Pass Pass Rate 7 7 100% 7 6 85.7 7 5 71.4 7 4 57.1 7 3 42.8 7 2 28.6 7 1 14.3 Non Africans Pass Pass Rate 177 177 100 177 176 99.4 177 175 98.9 177 174 98.3 177 173 97.7 177 172 97.2 . . . 177 7 4.0 177 6 3.4 177 5 2.8 Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 3 of 10 3 Non Africans Pass Pass Rate 177 4 2.3 177 3 1.7 177 2 1.1 177 1 .6 Eligibility for Certificate of PCP Course Completion Evidence has been provided that two of the plaintiffs were observed cheating on the PCP assessment, Ibrahim and Mahgoub. In a memo dated May 1, 2009, Penny Rubala indicates that she observed Ibrahim looking at Mahgoub’s paper and observed Mahgoub whispering to Ibrahim during the assessments, actions which continued after her requests to stop. Ms. Rubala states that she will not grant these two individuals a certificate of course completion because they were cheating. An examination of their patterns of responses on the assessment supports the cheating allegation. Table 2 lists the questions on the assessments taken by Ibrahim and Mahgoub. The first column identifies the question type: open, MC (multiple choice), or TF (true-false). The second column provides the actual question. The third and fourth columns contain the responses of Ibrahim and Mahgoub, respectively. If the item was answered correctly, the cell shows ‘RIGHT.’ For items answered incorrectly, the actual response is recorded. If Ibrahim or Mahgoub provided no response, the cell indicates ‘BLANK.’ A comparison of the responses between Ibrahim and Mahgoub show a clear pattern of almost identical responses with the exception of the open items. Ibrahim left all but one open item blank, while Mahgoub answered all of the open items and answered 5/8 correctly. Most interesting is that their patterns of responses to the multiple choice items is the same. With the exception of one item, they each circled 3/4 of the possible answers. This pattern is not observed with any of the other Africans as seen in Appendix A. It is also worth noting that the three Africans who are not named plaintiffs scored 0.88, 0.95 and 0.78. These three Africans did not appear to have difficulty with the assessment. Table 2. Response patterns of Ibrahim and Mahgoub to test items Quest Type Question Content Ibrahim Mahgoub MC The two basic types of communication are: RIGHT RIGHT MC Which of the following are not an example of nonverbal communication: ABC ABC MC Effective communicators are good listeners. A good listener will do all of the following except: ACD ACD MC Horizontal hostility effects the work place in all the following ways except: ABD ABD MC Important rules for TEAMWORK include all except: ABC ABC MC Communicating with the Resident/Client who has aphasia would include all of the following except: ABCD ACD MC Stages of Dying include all of the following except: ABC ABC MC All of the following must be followed when providing basic care for a resident/client except: BCD BCD Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 4 of 10 4 Quest Type Question Content Ibrahim Mahgoub MC All of the following are true and correct procedures to perform when completing peri care except: CD CD TF A PCP's tone of voice does not influence how confused resident/client may respond to a new situation. RIGHT RIGHT TF The resident/client care plan is a document that clearly states the resident/client's problems and goals, however, the PCP has no input into that document and may not see it. RIGHT RIGHT TF HIPAA stands for protected health information and you must keep it confidential. RIGHT RIGHT TF Caring for a resident/client with Alzheimer's disease can be very stressful to the PCP because of aggressive or disruptive behaviors. F F TF A catastophic reaction is an emotional response to noise or a feeling of being overwhelmed. RIGHT RIGHT TF It is ok to cry uncontrollably in front of family members if you have taken cared of their loved one for a long period of time. RIGHT RIGHT TF Dysphagia means difficulty swallowing. BLANK RIGHT TF When thickened liquids are required, they only require water to be thickened, not other liquids. RIGHT RIGHT TF Dehydration is a symptom in older people when they do not consume enough fluids and can result in concentrated urine output in residents/clients. RIGHT RIGHT TF Aspiration means the resident/client has inhaled liquid or food and it can result in infections in the lungs and possibly death. RIGHT RIGHT TF Low blood sugar or hypoglycemia can lead to a resident/client's death. RIGHT RIGHT TF Oxygen flow rate can be adjusted higher by the PCP, if resident/client is having difficulty breathing. RIGHT RIGHT TF Oxygen can blow up and create a fire. TF TF TF Side rails on the bed keep people from getting hurt and falling out of bed. RIGHT RIGHT TF When dressing a resident/client with a weak or paralyzed arm, you would put the shirt on the strong arm first. RIGHT RIGHT TF Contractures of joints are not permanent, they just need to exercise more. RIGHT RIGHT TF It is ok to perform an arm hook under a resident/client's armpit to pull then up in bed. T RIGHT TF Gait belts are only used if the resident/client is taller or heavier than the PCP. RIGHT RIGHT TF Proper body mechanics means that you protect the resident from falling. RIGHT RIGHT TF It is ok to massage reddened areas on the skin because it will make the resident/client feel better. RIGHT RIGHT TF If a resident/client is refusing to shower/bath, it is ok to wait for the next scheduled bath/shower day to try again. T T Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 5 of 10 5 Quest Type Question Content Ibrahim Mahgoub TF Shaving a resident/client with a straight razor, who is on blood thinners or is diabetic, is ok as long as the resident says so. RIGHT RIGHT TF It is ok to clip toneails on diabetic residents/clients. RIGHT RIGHT TF Placing a towel in the sink before brushing dentures is an important step to take to prevent breaking them. RIGHT RIGHT TF Broken, chipped, or loose teeth will not affect how a person can chew food. RIGHT RIGHT TF Poor oral hygiene can lead to weight loss in some people. F BLANK Open Describe what protective oversight means in a non-skilled setting. BLANK RIGHT Open Describe three resident/client care concerns that would be a reason to call the supervisor. FALLING; B RIGHT Open What is the single most important skill/action to prevent the spread of infection. BLANK RIGHT Open What is most important to remember when handling dirty or soiled linens to prevent the spread of infection? BLANK RIGHT Open Which arm does a resident/client hold a cane if the have right sided weakness. BLANK RIGHT Open List two reasons why proper positioning in a bed or wheelchair is important. BLANK SAFETY NEEDS; GOOD HEALTH- SKIN Open List the main reason why looking at skin on a resident/client bony prominence during bathing or toileting is an important thing to do. BLANK RIGHT Open List three ways that a resident/client could receive a skin tear. BLANK BAD POSITION IN CHAIR; FALL OFF BED; BAD HOLDING OR SITTING Adverse Impact Analysis of the PCP Course Assessment To evaluate the adverse impact of the PCP assessment which employees either passed or failed, one should evaluate the difference in passing rates not the difference in average scores. The difference in average test scores is not relevant since New Mercer treated anyone scoring 75% or greater equally (i.e., they passed). If all of the Africans had received a 75%, the difference between the African and non- African scores would still be significant, but all would have passed. The individual who scored a 90% received no favorable outcomes over the individual who scored a 75%. Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 6 of 10 6 To evaluate the adverse impact, we conduct an analysis comparing the actual number of Black or African Americans (or African natives) who passed the assessment compared to the expected number of Blacks or African Americans (or African natives) given the composition of the pool of individuals who completed the assessment. As an example, if the pool was comprised of 10% Africans, we expect 10% of those who passed the assessment to also be African natives. Since the pool of individuals taking the assessment is fixed but the pool of those who pass is not fixed (i.e., depends on how many individuals answer 75% of the questions correctly), we use a double binomial model to calculate the statistical significance of the difference between the expected and actual number who pass the assessment. In each instance, we can compute the p-value (or probability value) associated with the difference between the expected and observed number of Blacks or African Americans or African natives passing the test and convert that probability value to an equivalent number of standard deviations. According to the Supreme Court, numbers of standard deviations greater than about two or three are too large to attribute solely to chance and therefore are in need of further explanation.1 Thus, an outcome less than two standard deviations can be regarded as reasonably attributable to chance factors, that is, as statistically insignificant. In contrast, an outcome in excess of three standard deviations is sufficient to rule out chance and is therefore statistically significant. A negative number of standard deviations indicates that fewer Blacks or African Americans or African natives passed the assessment than expected. A positive number of standard deviations indicates that more Blacks or African Americans or African natives passed the assessment than expected. If Mahgoub and Ibrahim cheated on the test and were, therefore, ineligible to receive a certificate of course completion, they should not be included in the analysis of the impact of the PCP assessment. The first analysis compares Blacks or African Americans to Whites, excluding Mahgoub and Ibrahim. No of Blacks who Passed No of Whites who Passed Total Blacks Total Whites p-value No SD 5 103 7 104 .0100 -2.60 The second analysis compares Blacks or African Americans to Hispanics, excluding Mahgoub and Ibrahim. No of Blacks who Passed No of Hispanics who Passed Total Blacks Total Hispanics p-value No SD 5 28 7 28 .0353 -2.10 The final analysis compares African natives to non-African natives, excluding Mahgoub and Ibrahim. No of African natives who Passed No of Non- African Natives who Passed Total African natives Total Non- African natives p-value No SD 1 Castaneda v. Partida, 430 U.S. 482, 496 n. 17 (1977). Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 7 of 10 7 3 175 5 177 .0036 -2.83 In each instance, there is a difference between the expected and actual number of Blacks or African Americans or African natives who passed the PCP assessment, to the disadvantage of Blacks or African Americans or African natives. In each instance, the number of standard deviations associated with this difference is less than 3. Practical Significance The UGESP, in its Q&A section, discusses the difference between statistical and practical significance. In response to questions about the numbers of individuals in the analysis groups, particularly when those numbers are small, the UGESP states: Q: Is evidence of adverse impact sufficient to warrant a validity study or an enforcement action where the numbers involved are so small that it is more likely than not that the difference could have occurred by chance? A: No. If the numbers of persons and the difference in selection rates are so small that it is likely that the difference could have occurred by chance, the Federal agencies will not assume the existence of adverse impact, in the absence of other evidence. In this example, the difference in selection rates is too small, given the small number of black applicants, to constitute adverse impact in the absence of other information (see Section 4D). If only one more black had been hired instead of a white the selection rate for blacks (20%) would be higher than that for whites (18.7%). Generally, it is inappropriate to require validity evidence or to take enforcement action where the number of persons and the difference in selection rates are so small that the selection of one different person for one job would shift the result from adverse impact against one group to a situation in which that group has a higher selection rate than the other group. On the other hand, if a lower selection rate continued over a period of time, so as to constitute a pattern, then the lower selection rate would constitute adverse impact, warranting the need for validity evidence. In the first portion of the answer, the UGESP discusses what has now become known as the ‘flip- flop’ rule. If we change one Black or African American or one African native to passing and one member of the comparison group to failing the PCP assessment, does the assessment still have an adverse impact? In the first analysis, Blacks or African Americans compared to Whites, the answer is No. In this case, the difference in the actual and expected numbers of Blacks or African Americans passing the assessment is below 2 s.d. No of Passes in Blacks No Passes in Whites Total Blacks Total Whites p-value No SD 6 102 7 104 .1790 -1.32 Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 8 of 10 8 In the second analysis, Blacks or African Americans compared to Hispanics, the answer is No. In this case, the difference in the actual and expected numbers of Blacks or African Americans passing the assessment is below 2 s.d. The results are seen below. No of Passes in Blacks No Passes in Hispanics Total Blacks Total Hispanics p-value No SD 6 27 7 28 .3647 -0.77 In the third analysis, African natives compared to non-African natives, the answer is No. In this case, the difference in the actual and expected numbers of African natives passing the assessment is below 2 s.d. The results are seen below. No of Passes in Africans No Passes in Non Africans Total Africans Total Non Africans p-value No SD 4 174 5 177 .11 -1.60 Also note that the UGESP advocates looking at the passing rate over time when numbers are small. In this case, it is noteworthy that only one other positively identified African native has taken the assessment since the first training period. Six of the identified African natives took the PCP test in April 2009. No other identified African natives completed the assessment until one employee in January 2010. After April 2009, the passing rate of Africans was 100%. Proper Comparison Groups So what are the plaintiffs claiming as the basis of discrimination? Race? National origin? Language? The answer to this question determines the appropriate groups for comparison. If the claim is discrimination based on race, and, if the named plaintiffs are all Blacks or African Americans, the appropriate analysis, based on the UGESP, would be a comparison of the passing rates of Blacks or African Americans to that of Whites or Hispanics. If the claim is discrimination based on national origin, however, who are the appropriate comparison groups? Based on the original complaint, Ibrahim, Mahgoub, and Gual are natives of Sudan while Aregahgn is a native of Ethiopia. Based on depositions from plaintiffs, there are three other persons from the continent of Africa: Muktar from Ethiopia, Musa from Sudan, and Alwalda from Libya. Of the seven identified African natives, four are from Sudan, two are from Ethiopia, and one is from Libya, three countries within the African continent. Using the UGESP as the guide for calculating adverse impact, where members of one race are compared against members of another race, should all individuals from different countries within Africa be lumped together or should each country of origin be examined against other specific countries of origin? Even if African natives are examined as a group, should the comparison group be all others? Or should it be natives of the United States? Mexico? Among the 177 ‘All Others,’ there are any number of nations of origin represented by those whose nation of origin we do not know. On page 22, Haldyana goes on to discuss “Linguistic Complexity” and issues related to testing individuals whose primary language is not English. So perhaps the question is whether the assessment Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 9 of 10 9 has an adverse impact against individuals whose primary language is not English (ESL)? In that case, an analysis could be conducted to compare the passing rates of ESL employees to non-ESL employees. The seven identified African natives belong in the ESL group but what about everyone else? Certainly some or perhaps all of the 28 Hispanic employees, whose passing rate was 100%, belong in the ESL group. There could also be any number of other employees who immigrated from other non-English speaking countries in the world. We have no analysis comparing individuals from one nation of origin to another nation of origin nor do we have an analysis comparing ESL individuals to non-ESL individuals. The adverse impact based on national origin or primary language is simply unknown. Concluding Remarks If an analysis of only those employees eligible to receive a certificate of course completion is conducted and the small number of “Blacks or African Americans” or persons “positively identified as having Africa countries as their nations of origin” in the pool is accounted for, there is no adverse impact of the PCP assessment, whether comparing Blacks or African Americans to Whites or Hispanics or comparing African natives to non-African natives. Furthermore, the adverse impact based on national origin or primary language is simply unknown. We have no analysis comparing individuals from one nation of origin to another nation of origin nor do we have an analysis comparing ESL individuals to non- ESL individuals. Lisa Harpe, PhD 9/14/2016 Case 1:15-cv-01597-MSK-CBS Document 64-4 Filed 09/30/16 USDC Colorado Page 10 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-01597-MSK-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. COLUMBINE MANAGEMENT SERVICES, INC. and THE WORTHINGTON, INC. D/B/A NEW MERCER COMMONS ASSISTED LIVING FACILITY, Defendants. PLAINTIFF EEOC’S THIRD SUPPLEMENTAL RESPONSES TO DEFENDANTS’ THIRD SET OF WRITTEN DISCOVERY REQUESTS Plaintiff Equal Employment Opportunity Commission (“EEOC” or “Commission”), through the undersigned counsel, hereby submits the following objections and supplemental responses to Defendants’ Columbine Management Services, Inc. d/b/a Columbine Health Systems, Inc. (“Columbine”) and The Worthington, Inc., d/b/a New Mercer Commons Assisted Living Facility’s (“New Mercer Commons”) (collectively “Defendants”) Third Set of Written Discovery Requests to Plaintiff. Exhibit 5 Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 1 of 53 2 OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS Objection to Definition and Instruction No. 3: The EEOC objects to this definition and instruction as confusing, vague, ambiguous. Notwithstanding Defendants’ general definition and instruction, the term “named party,” historically and typically refers to the parties who are the named in the caption of the lawsuit – the plaintiffs or defendants. Here, the EEOC is the only named plaintiff in the case. The EEOC has identified individuals aggrieved by Defendants’ allegedly discriminatory practices, consistent with the language of Title VII, which refers to “persons aggrieved.” 42 U.S.C. §2000e-5. In this case, none of the aggrieved individuals are named parties in the lawsuit. Defendants cannot impute to the aggrieved individuals the status and responsibilities of a named party in the lawsuit, simply by defining “Named Parties” to mean something other than a person named in the caption as a party to the lawsuit. Objection to Definition and Instruction No. 14: The EEOC objects to Instruction No. 13 to the extent it seeks “documents and things known to or available to,” but outside of the possession, custody, or control of the EEOC. Fed. R. Civ. P. 34(a)(1) limits production of documents to only those “items in the responding party’s possession, custody, or control.” OBJECTIONS AND RESPONSES TO INTERROGATORIES Interrogatory No. 9: For each Named Party except Hoem, state the following: (1) primary language(s) read or spoken as of 2009; (2) all other languages read or spoken, specifying the level of fluency as of 2009; (3) primary language(s) read or spoken as of 2015; and (4) all other languages read or spoken, specifying level of fluency as of 2015. Response: The EEOC objects that this interrogatory is vague and ambiguous. The term “primary language” could refer to an individual’s first or native language or, alternatively, to the Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 2 of 53 3 language that an individual speaks and writes most commonly in a given year. The term “level of fluency” is undefined and no objective criteria or definitions have been provided, even though terms like “fluency” typically vary from situation to situation, and are highly subjective. The EEOC further objects that this request is overbroad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence to the extent it seeks information about the Aggrieved Individuals’ “primary” language and other languages read or spoken in years other than 2008 and 2009, as the languages they speak now are irrelevant. The EEOC further objects that this interrogatory constitute at least two interrogatory requests. A request for the languages spoken in 2009 is separate and distinct from a request for the languages spoken in 2015. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving these objections, EEOC states that, in 2009, Kiros Aregahgn read and spoke her native language, Tigrinya, as well as Amharic and English. Ms. Aregahgn continues to speak and read Tingrinya, Amharic, and English in 2015. During her employment at New Mercer Commons between January 3, 2000 and May 11, 2009, Aregahgn spoke and read English at work. In 2009, Mohamed Mahgoub read and spoke his native language, Arabic, as well as English. Mr. Mahgoub continues to speak and read Arabic and English in 2015. During his employment at New Mercer Commons, Mahgoub spoke and read English at work. He also spoke and read English for all subsequent employment and with his current employer. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 3 of 53 4 In 2009, Sawson Ibrahim read and spoke her native language, Arabic, as well as English. Ms. Ibrahim continues to speak and read Arabic and English in 2015. During her employment at New Mercer Commons, Ibrahim spoke and read English at work. She also speaks and reads English with her current employer. In 2009, Hanaa Gual spoke and read her native language, Arabic, as well as English. Ms. Gual continues to speak and read Arabic and English in 2015. During her employment at New Mercer Commons, Ibrahim spoke and read English at work. She also spoke and read English for all subsequent employment and with her current employer. Interrogatory No. 10: Can each of the Named Parties except Hoem, read and write English fluently? If not, what language and dialect did they normally use for written or oral communications at work in 2009? Response: The EEOC objects that this request is overbroad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence because the inquiry into the Aggrieved Individuals’ English fluency is not limited to 2008 and 2009 when the EEOC alleges the discrimination took place. The Aggrieved Individuals’ English proficiency at any other time is not relevant to the EEOC’s allegations. Likewise, the language Aregahgn, Gual, Mahgoub, and Ibrahim spoke and read in 2009 while working in positions other than as Personal Care Providers for Defendants is wholly unrelated to the claims and defenses asserted in this action. The EEOC also objects that the term “fluently” is undefined and therefore vague and ambiguous. Defendants provide no objective criteria and no definitions have been provided, even though terms like “fluently” typically vary from situation to situation and person to person, and are highly subjective. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 4 of 53 5 As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving these objections, the EEOC states that Kiros Aregahgn, Hanaa Gual, Mohamed Mahgoub, and Sawson Ibrahim all were capable of reading and writing English in 2009 sufficient to meet the needs of and perform their duties as Primary Care Providers at New Mercer Commons, and used English for all written and oral communications while performing their job duties at New Mercer Commons. Interrogatory No. 11: Please identify any and all education that each of the Named Parties have started or completed, including but not limited to, schools they attended, dates of attendance, degrees or certificates awarded, and any English courses taken. Response: The EEOC objects that this interrogatory is vague and ambiguous, overbroad and unduly burdensome as it does not contain any temporal limitation and therefore appears to seek all education, whether formal or informal, from birth to present. Education such as elementary school is patently irrelevant to the EEOC’s claims in this action. Nor is it incumbent upon the Aggrieved Individuals to recall each and every English course they may have taken since birth. The EEOC further objects that this interrogatory seeks irrelevant information that is not reasonably calculated to lead to the discovery of admissible evidence as there is no evidence to suggest that the Aggrieved Individuals’ educational history played a role in any decisions regarding their employment with Defendants, including, but not limited to, their hiring and termination. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 5 of 53 6 As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving these objections, the EEOC responds as follows: Kiros Aregahgn: Kiros Aregahgn attended high school in Ethiopia between approximately 1964 and 1967 and graduated. Beginning in approximately eighth grade or its equivalent, all courses taught at Ms. Aregahgn’s high school were in English. Between approximately 1967 and 1969, Ms. Aregahgn attended Teachers Training Institute (TTI) in Asmara, Eritrea and received a diploma. All courses at TTI were taught in English. Mohamed Mahgoub: Mohamed Mahgoub attended high school in Sudan between approximately 1974 and 1978 and graduated. Between approximately 1978 and 1982, Mr. Mahgoub attended Khartoum University – Sudan, where he received a Bachelor’s Degree in Economics and Social Studies. All subjects taught at Khartoum University were taught in English. Between approximately 2001 and 2007, Mr. Mahgoub attended Colorado State University (CSU) in Fort Collins, Colorado as a part-time student and received a Bachelor’s Degree in History. All of the courses Mr. Mahgoub took at CSU were taught in English. Mr. Mahgoub also took several courses, including an English course, as prerequisites for pursuing a Master’s Degree in History at CSU. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 6 of 53 7 Sawson Ibrahim: Sawson Ibrahim attended the Khartoum branch of Cairo University in Sudan (now Al- Neelain University) and graduated with a Bachelor’s Degree in approximately 1983. Hanaa Gual: Hanaa Gual attended high school in Sudan and graduated. Between approximately 2005 and 2006, Ms. Gual attended the Job Corp Center in Clearfield, Utah, where she took two business classes for English Second Language (ESL) students. In 2013, Ms. Gual took two classes for ESL students at Front Range Community College. Marlene Hoem: Marlene Hoem attended high school in Jackson, Wyoming; Leadville, Colorado; and Saratoga, Wyoming between 1963 and 1967 and graduated. Interrogatory No. 12: For each Named Party except Hoem, state the following: (1) date of immigration to the United States; (2) all places of residence since immigration; (3) amount of time spent outside of the United States on an annual basis since immigration, specifying in what country that time was spent; and (4) all reasons why the time was spent outside of the United States. Response: The EEOC objects that this interrogatory seeks irrelevant information that is not reasonably calculated to lead to the discovery of admissible evidence. Although the EEOC has alleged that Kiros Aregahgn, Hanaa Gual, Mahomed Mahgoub, and Sawson Ibrahim are émigrés from countries in Africa, their dates of immigration to the United States, the places they have resided since immigrating to the United States, and the amount of time they have since spent outside of the United States, the countries where that time was spent, and the reasons why Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 7 of 53 8 they spent time outside the country are wholly unrelated to the claims and defenses in this suit— namely, whether Defendants discriminated against Aregahgn, Gual, Mahgoub, and Ibrahim. The EEOC also objects to this interrogatory as it needlessly invades the privacy of Aregahgn, Gual, Mahgoub, and Ibrahim in what is a fishing expedition clearly aimed at harassing, oppressing, and intimidating the Aggrieved Individuals by delving into purely private and personal matters unrelated to the claims and defenses in this suit, and suggests a xenophobic motive as only the black, African immigrant Aggrieved Individuals are subjected to these invasive questions, and not Ms. Hoem, who is white and was born in the United States. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC’s objections refer to aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. The EEOC also objects that this interrogatory is overbroad and unduly burdensome as it contains no temporal limitation and thus requires that Aregahgn, Gual, Mahgoub, and Ibrahim recall every trip they have taken since their date of immigration—which, for some, is more than two decades ago—and the reasons for those trips. Because this interrogatory has no apparent relevance other than to harass, intimidate, and oppress, the EEOC respectfully declines to respond to this interrogatory. Supplemental Response of February 5, 2016: Defendants narrowed the scope of Interrogatory Nos. 3 and 12 to seek the city or town and state or country where Kiros Aregahgn resided for a period of one month or longer from her immigration date through May 2010, and the city or town and state or country where Hanaa Gual, Mohamed Mahgoub, and Sawsan Ibrahim resided from their immigration date to present. The EEOC has also agreed to identify Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 8 of 53 9 the city and state where Marlene Hoem has resided since the date of her separation from employment with Defendants to the present. The EEOC refers Defendants to the EEOC’s Supplemental Response of February 5, 2016 to Defendants’ Interrogatory No. 3. Interrogatory No. 13: Describe all physical, cultural or linguistic characteristics you contend the Named Parties except Hoem, have in common. Response: The EEOC objects that this “contention interrogatory” is premature. Although an interrogatory is not objectionable because it asks for an “opinion or contention that relates to fact or the application of law to fact,” the court may “order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” Fed. R. Civ. P. 33(a)(2). At this early juncture, little discovery has been completed and thus “all” physical, cultural or linguistic characteristics shared by Kiros Aregahgn, Hanaa Gual, Mohamed Mahgoub, and Sawson Ibrahim are still being developed through appropriate discovery, including what physical, cultural, or linguistic characteristics Defendants and its agents assumed or understood Aregahgn, Gual, Mahgoub, and Ibrahim shared. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving these objections, the EEOC states that Kiros Aregahgn, Mohamed Mahgoub, Sawson Ibrahim, and Hanaa Gual share physical, cultural, and/or linguistic characteristics, including, but not limited to: Aregahgn, Mahgoub, Ibrahbim, and Gual are all black; are all émigrés from countries in eastern Africa; were all believed by Defendants and/or Defendants’ employees to have limited English skills and/or had accents that Defendants and/or Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 9 of 53 10 Defendants’ employees did not like; were treated as a group of “African” employees by Defendants and/or Defendants’ employees; all speak a native language other than English; all speak a native language not derived from, related to, attributed to, or originated from a Germanic or romance language; and all speak a Semitic language as their native language. Interrogatory No. 14: Describe all characteristics you contend the Named Parties except Hoem, have in common by virtue of having an “African national origin.” Response: The EEOC objects that this “contention interrogatory” is premature. Although an interrogatory is not objectionable because it asks for an “opinion or contention that relates to fact or the application of law to fact,” the court may “order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” Fed. R. Civ. P. 33(a)(2). At this juncture, little discovery has been completed and thus “all” physical, cultural or linguistic characteristics shared by Aregahgn, Gual, Mahgoub, and Ibrahim are still being developed through appropriate discovery, including what common characteristics Defendants and its agents assumed or understood Aregahgn, Gual, Mahgoub, and Ibrahim to share. The EEOC also objects to the extent that Defendant seeks duplicative information of that sought in Interrogatory No. 13, supra, and thus this interrogatory is unduly burdensome. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving these objections the EEOC states that “[t]he Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 10 of 53 11 employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.” 29 CFR § 1606.1. In light of this broad definition of national origin discrimination, case law has recognized that a “place of origin” can include Africa and other continents of origin. See, e.g., Kanaji v. Children’s Hosp. of Philidelphia, 276 F. Supp. 2d 399, 401-404 (E.D. Pa. 2003); Stern v. Trustee of Columbia Univ., 131 F.3d 305, 306, 312 (2d Cir. 1997); McNaught v. Va. Cmty. College Sys., 933 F. Supp. 2d 804, 817 (E.D. Va. 2013). As such, it is not necessary for the EEOC to also identify characteristics arising out of Aregahgn, Gual, Mahgoub, and Ibrahim’s “African national origin.” Nevertheless, the EEOC states that Aregahgn, Mahgoub, Ibrahim, and Gual share the following characteristics by virtue of their “African national origin”: Aregahgn, Mahgoub, Ibrahbim, and Gual are all black; are all émigrés from countries in eastern African; were all believed by Defendants and/or Defendants’ employees to have limited English skills and/or had accents that Defendants and/or Defendants’ employees did not like; were treated as a group of “African” employees by Defendants and/or Defendants’ employees; all speak a native language other than English; all speak a native language that is not derived from, related to, attributed to, or originated from a Germanic or romance language; and all speak a Semitic language as their native language. Interrogatory No. 15: Do you contend each of the Named Parties except Hoem, was qualified to perform his or her job as a Personal Care Provider? If so, provide the basis for that contention and identify all facts supporting that contention. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 11 of 53 12 Response: The EEOC objects that this “contention interrogatory” is premature. Although an interrogatory is not objectionable because it asks for an “opinion or contention that relates to fact or the application of law to fact,” the court may “order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” Fed. R. Civ. P. 33(a)(2). At this early juncture in the case, little discovery has been completed and thus “all facts” demonstrating that Aregahgn, Gual, Mahgoub, and Ibrahim were qualified to perform their jobs as Personal Care Providers are still being developed through appropriate discovery. The EEOC also objects to the extent that Defendants imply that they were not aware of the qualifications of Aregahgn, Gual, Mahgoub, and Ibrahim when they were initially hired, hence the Defendants assessed them as qualified and each possesses the same objective qualifications that they held when they were hired. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving these objections, the EEOC contends that Aregahgn, Gual, Mahgoub, and Ibrahim were clearly qualified to perform their jobs as Personal Care Providers at New Mercer Commons. Specifically, Aregahgn, Gual, Mahgoub, and Ibrahim all worked for Defendants for one or more years, adequately performing the duties of Personal Care Providers, and have also worked at other similar care facilities performing similar job functions before and after working at New Mercer Commons. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 12 of 53 13 Kiros Aregahgn: Defendants determined Ms. Aregahgn was qualified for the PCP position when they initially hired her for that job in January 2000. Defendants continued to employ Ms. Aregahgn as a PCP at New Mercer Commons for over nine years. For the first nine years of her employment, through December 2008, Defendants consistently evaluated Ms. Aregahgn’s job performance as meeting or exceeding expectations. And Defendants further recognized Ms. Aregahgn’s qualifications by awarding her regular annual merit-based raises every year from 2001 through 2008, and by promoting her from a Class I (or “Level I”) care provider, to a Class II provider, to a Class III provider. Also, throughout the first nine years of her employment, Ms. Aregahgn was never disciplined. Ms. Aregahgn also passed all certification and training required of her by Defendants, including completing all orientation and training required for promotion to Class II provider and to Class III provider (see, e.g., NMC 0000020, 0000069-70, 0000103, 0000107), acquiring certification from the Colorado Department of Public Health and Environment (NMC 0000084), from outside vendors and educators including HCPro, Inc. (NMC 0000085), and Front Range Community College (NMC 0000093). Mohamed Mahgoub: Defendants determined Mr. Mahgoub was qualified for the PCP position when they initially hired him for that job in December 2007. Defendants continued to employ Mr. Mahgoub as a PCP at New Mercer Commons for sixteen months. Defendants evaluated Mr. Mahgoub’s job performance as meeting expectations, and awarded him a merit-based raise. He was not once disciplined during his entire sixteen-month tenure. He also passed all certification and training required of him by Defendants (see, e.g., NMC 0000221) and by outside vendors Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 13 of 53 14 (NMC 0000245). After he was fired by Defendants, Mr. Mahgoub has continued to work as a care provider at other institutions, including for Brookdale Senior Living Community, where he performed duties similar to those required by Defendants. Sawson Ibrahim: Defendants determined Ms. Ibrahim was qualified for the PCP position when they initially hired her for that job in December 2007. Defendants continued to employ Ms. Ibrahim as a PCP at New Mercer Commons for sixteen months. Defendants evaluated Ms. Ibrahim’s job performance as meeting expectations, and awarded her a merit-based raise. She was not once disciplined during her entire sixteen-month tenure. She also passed all certification and training required of her by Defendants (see, e.g., NMC 0000282) and by outside vendors (NMC 0000311). Hanaa Gual: Defendants determined Ms. Gaul was qualified for the PCP position when they initially hired her for that job in August 2008. Defendants continued to employ Ms. Ibrahim as a PCP at New Mercer Commons for ten months. Defendants evaluated Ms. Ibrahim’s job performace as meeting expectations, and awarded her a merit-based raise. She was not once disciplined during her entire ten-month tenure. She also passed all certification and training required of her by Defendants (see, e.g., NMC 0000123). After she was fired by Defendants, Ms. Gual has consistently continued to work as a care provider for various other health care providers, including for Brookdale Senior Living Community, Colorado State University, and Collingwood Assisted Living, where she performed duties similar to those required by Defendants. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 14 of 53 15 Interrogatory No. 16: Did any of the Named Parties complain, either in writing or orally, to Defendants about any alleged discriminatory conduct? If so, for each complaint please provide (a) the date of the complaint, (b) the nature of the complaint, (c) the name and address of each person to whom the complaint was made, (d) the name, address, telephone number and job title of each person who investigated the complaint, and (e) identify all documents relating to the complaint and investigation. Response: The EEOC objects that this interrogatory is vague and ambiguous, temporally and substantively overbroad, unduly burdensome, seeks irrelevant information that is not reasonably calculated to lead to the discovery of admissible evidence, and seeks information and documents outside of the custody and control of the EEOC. The terms “complain” and “complaint” are vague and ambiguous as it is unclear whether these terms refer only to formal complaints submitted to a member of management, human resources, or other appropriate employee, or whether they also encompass informal or causal complaints or conversations about discriminatory conduct with anyone employed by Defendant, including other non-supervisory employees. Relatedly, the term “discriminatory conduct” is undefined and therefore it is unclear whether this term is intended to apply only to conduct recognized as unlawful discrimination under federal, state, and local anti-discrimination laws or also applies to conduct that the Aggrieved Individuals or others might consider as “discriminatory.” As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 15 of 53 16 Subject to and without waiving these objections, the EEOC responds as follows: Mr. Mahgoub and Ms. Ibrahim complained to Ms. Hoem, their supervisor at the time, about the negative way they were treated by Pamela Lewis after she became the Director at New Mercer Commons in late 2007 or early 2008. More specifically, Mahgoub and Ibrahim reported to Hoem that Lewis would rarely, if ever, greet, speak, or make eye contact with them, despite frequently greeting and conversing with other Personal Care Providers at New Mercer Commons. In mid-2008, Lewis told Hoem, referring to the black, African employees (e.g. Aregahgn, Gual, Mahgoub, and Ibrahim) that New Mercer Commons had to get rid of “these people because they just can’t speak English.” In response, Hoem protested and said that the black, African employees were well-liked by the residents at New Mercer Commons and spoke English just fine. In or around mid-2008, Lewis also often complained about the black, African employees at New Mercers Commons and asked, on at least one occasion, “why are there so many?” Hoem protested these comments and stated to Lewis that these employees had strong work ethics and were kind and dependable. Interrogatory No. 17: Identify by name, case number and jurisdiction every lawsuit brought by EEOC over the last 7 years alleging African national origin. Response: The EEOC objects to this interrogatory on grounds that it seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence. This interrogatory seeks information that is wholly unrelated to the facts of this case and has nothing to do with whether Defendants discriminated against Kiros Aregahgn, Mohamed Osman Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 16 of 53 17 Mahgoub, Sawson Ibrahim, Hanaa Gual because they emigrated from Ethiopia and Sudan (both countries in Africa), and Defendants conceptualized them monolithically as “African.” The EEOC also objects to this interrogatory as the information Defendants seek is publically available, and Defendants are asking EEOC personnel to do research and work that Defendants can do for themselves. Subject to and without waiving its objections, the EEOC states that because this interrogatory seeks irrelevant information, and because Defendants’ actions are at issue in this case, not actions or employment practices of any other employers or the EEOC’s litigation against other employer, the EEOC respectfully declines to respond. Interrogatory No. 18: Identify by name, case number and jurisdiction every lawsuit brought by EEOC over the last 7 years alleging that questions on a written test feature linguistic and structural characteristics known to confuse English as a second language test takers. For each such lawsuit, identify the language(s) at issue. Response: The EEOC objects to this interrogatory on grounds that it seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence. This interrogatory seeks information that is wholly unrelated to the facts of this case and which has nothing to do with whether Defendants designed and administered a written test, which has specific linguistic features and structural characteristics known to confuse English as a second- language test takers. The EEOC also objects to this interrogatory as the information Defendants seek is publically available, and Defendants are asking EEOC personnel to do research and work that Defendants can do for themselves. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 17 of 53 18 Subject to and without waiving its objections, the EEOC states that because this interrogatory seeks irrelevant information, and because Defendants’ actions are at issue in this case, not actions or employment practices of any other employers or the EEOC’s litigation against other employers, the EEOC respectfully declines to respond. Interrogatory No. 19: Identify by name, case number and jurisdiction every lawsuit brought by EEOC over the last 7 years alleging disparate impact of a written test based on race. For each such lawsuit, identify the race at issue. Response: The EEOC objects to this interrogatory on grounds that it seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence. This interrogatory seeks information that is wholly unrelated to the facts of this case and which has nothing to do with whether Defendants designed and administered a unique written test, the use of which disparately and adversely affected black employees. The EEOC also objects to this interrogatory as the information Defendants seek is publically available, and Defendants are asking EEOC personnel to do research and work that Defendants can do for themselves. Subject to and without waiving its objections, the EEOC states that because this interrogatory seeks irrelevant information, and because Defendants’ actions are at issue in this case, not actions or employment practices of any other employers or the EEOC’s litigation against other employers, the EEOC respectfully declines to respond. Interrogatory No. 20: If your response to any Request for Admission served on you by Defendants is not an unqualified admission, state the facts that support your denial or partial denial. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 18 of 53 19 Response: The EEOC objects to the extent that this interrogatory requires EEOC to provide more information than is required under Fed. R. Civ. P. 36. Subject to and without waiving its objections, the EEOC refers Defendants to its Responses to Requests for Admission Nos. 1 through 16, infra. Interrogatory No. 21: Other than this Action, describe each and every civil case (including administrative and judicial proceedings, and including bankruptcy proceedings) to which any of the Named Parties has been a party, stating the caption (court and case number) and the disposition of the matter. Response: The EEOC objects that requests regarding participation in any other lawsuit, regardless of subject matter, are facially irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Much like any other request, participation in other lawsuits is subject to the relevant standard of Fed. R. Civ. P. 26(b). Shoemake v. McCormick, No. 10-2514- RDR, 2011 U.S. Dist. LEXIS 131736, at *26-27 (D. Kan. Nov. 15, 2011) (discovery of other lawsuits is not per se relevant). As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Subject to and without waiving these objections, the EEOC provides the following information regarding lawsuits or other proceedings involving either (a) the Defendants to this action, or (b) claims of discrimination: After being terminated from Defendants, Aregahgn and Hoem both applied for unemployment benefits with the state of Colorado. The EEOC has requested documents related to these proceedings from the Colorado Department of Labor and Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 19 of 53 20 Employment and will produce any responsive, non-privileged documents. None of the Aggrieved Individuals have been a party to any administrative or judicial proceeding involving claims of discrimination under federal or state anti-discrimination statutes. Supplemental Response of April 5, 2016: The EEOC refers Defendants to EEOC016694-16710, produced herewith for documents relating to Kiros Aregahgn’s unemployment benefits proceedings before the Colorado Department of Labor. Pursuant to Fed. R. Civ. P. 34(b)(2)(C),1 the EEOC states that it has withheld as irrelevant Ms. Aregahgn’s Unemployment Benefit Payment History.. See Cooper v. Cobe Laboratories, 743 F. Supp. 1422, 1435 (D. Colo. 1990) (pursuant to the collateral source rule, unemployment benefits cannot be deducted from back pay). Interrogatory No. 22: State whether each Named Party has entered a plea of guilty or nolo contendre or been convicted of any crime or statutory violation (other than a traffic offense in which he/she was assessed only a fine that was less than $100) since his or her 18th birthday, regardless of whether such conviction was subsequently expunged. If yes, state: the crime or offense of which he/she was convicted; describe any plea entered, whether guilty, not guilty, nolo contendre, or any other plea; describe the penalty imposed as a result of the conviction; and identify all documents that relate to the conviction. Response: The EEOC objects that this interrogatory is both temporally and substantively overbroad and seeks information that is irrelevant to the claims and defenses in this lawsuit. Nor does this interrogatory appear to be reasonably calculated to lead to the discovery of admissible 1 Although this Supplemental Response responds to Interrogatory No. 21 and therefore does not directly implicate Rule 34(b), Defendants’ Request for Production No. 17 seeks “all documents that support, refer, or relate to your answers to the Interrogatories.” Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 20 of 53 21 evidence. Federal Rule of Evidence 608 limits impeachment to general reputation, and then, only once a witness’s character of truthfulness is called into question. Specific instances of conduct, such as arrests, may not be proven by extrinsic evidence. In turn, Federal Rule of Evidence 609 limits admissible evidence to certain specified convictions. A conviction may only arguably be introduced if it falls within certain parameters not enunciated in this Interrogatory. As such, this interrogatory is objectionably harassing and oppressive because it seeks information that would be barred at trial by the Federal Rules of Evidence. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Subject to and without waiving these objections, EEOC responds with information about convictions that may fall within the ambit of Fed. R. Evid. 609. Specifically, the EEOC states that none of the Aggrieved Individuals have a felony conviction or a misdemeanor conviction involving fraud, a dishonest act, or a false statement. OBJECTIONS AND RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS Request for Production No. 9: All documents that relate, reflect, or refer to the linguistic characteristics of the primary languages spoken or read by the Named Parties except Hoem on which you relied to file this Action. Response: EEOC objects that this Request is overbroad on its face as it relies on the terms “all” documents that “reflect” or “relate” to “linguistic characteristics” on which “you relied.” A document request is not reasonably particular and is instead facially overbroad if it Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 21 of 53 22 merely requests all documents relating to an issue. Western Res., Inc. v. Union Pac. R.R. Co., 2001 U.S. Dist. LEXIS 24647, *10-11 (D. Kan. Dec. 5, 2001). The EEOC objects to this Request as it is also vague and ambiguous. It is unclear what documents Defendants believe to be responsive to this request because it asks for all documents relating to “linguistic characteristics” and makes reference to “primary language,” without any contextual reference. For example, the Aggrieved Individuals speak English as their primary language at work, but may primarily speak other languages in other contexts. The EEOC also objects to this Request to the extent that it requests the production of documents protected by the government deliberative process, attorney work product doctrine, and/or attorney-client privilege. By asking for all documents that “relate” to or “reflect” linguistic characteristics “on which you relied to file this Action,” Defendants’ request is so broad that it encompasses legal analysis and memoranda authored by EEOC personnel that are pre-decisional and analytic and disclosure of which would reveal the mental processes and decision-making of the agency and/or communications undertaken by EEOC attorneys in contemplation and/or in furtherance of this lawsuit. These documents are not subject to discovery. See NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150 (1975) (government deliberative process); Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578, 586 (N.D.N.Y. 1998) (work product). As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 22 of 53 23 Subject to and without waiving its objections, the EEOC refers Defendants to the EEOC investigator’s interview notes, including questions about the Aggrieved Individuals’ native languages, produced herewith at EEOC000137-138 (Mahgoub Interview Notes); EEOC000139- 140 (Ibrahim Interview Notes); EEOC000141-143 (Gual Interview Notes); EEOC000144-146 (Aregahgn Interview Notes). Request for Production No. 10: With regard to each lawsuit identified in response to Interrogatory Nos. 17 through 19 above, produce all expert witness reports, summaries or similar documents disclosed by any party to the lawsuit on the topics of linguistics, national origin or testing. Response: The EEOC objects to this request for production on grounds that it seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence, and is temporally and substantively overbroad. This request seeks documents that are wholly unrelated to the facts of this case and which have nothing to do with whether Defendants discriminated against these Aggrieved Individuals. It also seeks documents from parties not involved in this lawsuit, which may be more easily obtained from the defendant employers. The EEOC also objects to this request as vague and ambiguous. It is unclear what Defendants refer to when they request “summaries” or “similar documents” – whether Defendants are referring to expert materials alone, or to some other type of documents. The EEOC also objects that it is unduly burdensome and not proportionate to the needs of the case for the EEOC to review seven years of lawsuit to determine which of those are arguably responsive to Interrogatories No. 17 through 19 and then sift through those case files for expert reports, “summaries,” or “similar documents.” Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 23 of 53 24 The EEOC further objects that this request for production includes three distinct and separate requests for production in that this request treats expert reports and other similar documents relating to three different interrogatories as one request for production. Defendants are on notice that EEOC considers this request for production to be three requests for production. The EEOC further objects to this request as overbroad and violative of the attorney-client and work product doctrine. Defendants’ request for all reports or similar documents is expansive enough to include reports authored by consulting experts, employed only for trial preparation who were not called or expected to be called as a witness at trial and whose reports and communications with the EEOC are not discoverable. See Fed. R. Civ. P. 26(b)(4)(D); A.H. v. Evenflo Co., 2012 U.S. Dist. LEXIS 76100, *7-8 (D. Colo. May 31, 2012) (attorney-client privilege protects communications with retained, non-testifying experts from disclosure); Bradley v. Val-Mejias, No. 00-2395-GTV, 2001 WL 1249339, at *3 n.1 (D. Kan. Oct. 9, 2011). This request is so broad that it can also be read as soliciting drafts of reports for testifying experts, the production of which would reveal the mental impressions of the EEOC’s attorneys and which are protected against disclosure under Fed. R. Civ. P. 26(b)(4(C). “[T]he required disclosure under Fed. R. Civ. P. 26(a)(2)(B) & (b)(4)(A) does not include core attorney work product considered by the expert.” Nexxus Prods. Co. v. CVS N.Y., Inc., 188 F.R.D. 7, 10 (D. Mass. 1999). Subject to and without waiving its objections, the EEOC states that because this request for production seeks documents wholly unrelated to this lawsuit and which are irrelevant to the facts at hand, the EEOC respectfully declines to produce any documents. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 24 of 53 25 Request for Production No. 11: All documents concerning any claim or complaint that any of the Named Parties has ever asserted in writing, in any forum, arising out of his/her employment with any employer or contract other than with Defendants. Response: EEOC objects to this request on the basis that it is not reasonably calculated to lead to the discovery of admissible evidence and is substantively and temporally overbroad. The request is substantively overbroad because complaints the Aggrieved Individuals had at other employers, regardless of the nature or significance of these complaints, are not relevant to this litigation. There are also no temporal limitations to this request. Defendants seek many decades worth of information without anchoring it to the time period in which the EEOC claims the aggrieved individuals were subjected to discrimination by Defendants. Although litigation may support the discovery of some documents during a reasonable time before and after the dates of discrimination, it does not entitle a party to unfettered requests for documents. Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 655 & n.29 (D. Kan. 2004) (two and a half years predating the alleged discrimination relevant, but not more). The EEOC objects that this Request is also overbroad on its face as it has no discernible parameters, relying on omnibus and ambiguous language such as “concerning.” Without any substantive or temporal guidance in this Request, it does not satisfy the particularity threshold enounced in Fed. R. Civ. P. 34(b). A document request is not reasonably particular and is instead facially overbroad if it merely requests all documents relating to an issue. Western Res., Inc. v. Union Pac. R.R. Co., 2001 U.S. Dist. LEXIS 24647, *10-11 (D. Kan. Dec. 5, 2001). Under such circumstances, a party is relieved of the burden of responding. Id. at *11-12; see generally Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 623 (D. Kan. 2005). Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 25 of 53 26 The EEOC objects that the terms “claim,” “complaint,” and in “any forum” are vague and ambiguous in the context of this request. It is unclear whether Defendants mean a legal forum such as an administrative body, or a court, or if Defendants have a broader meaning in mind. It is also unclear if Defendants have a broader definition of “complaint” or “claim” than a legal action or proceeding. The EEOC objects to the extent that this request seeks documents that are in control of third parties, such as other employers. The EEOC objects on the grounds of attorney-client privilege and the work product doctrine. Defendants request is so broad, that it may entail confidential communications and documents prepared by private attorneys for the Aggrieved Individuals in the course of representing them in those other matters. These communications and documents are irrelevant to this lawsuit and protected. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Subject to and without waiving any of its objections, EEOC states that on one occasion Hanaa Gual complained about discrimination to her then-employer. The settlement agreement is confidential. Ms. Gual is unable to discuss her complaint or to produce the settlement agreement. Ms. Gual faces penalties and liability if she makes her complaint or the settlement agreement public. Because these documents are also irrelevant, they will not be produced. See generally Williams v. Vail Resorts Dev. Co., 2003 U.S. Dist. LEXIS 27793, *11-12, *19-20 (D. Wyo. Nov. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 26 of 53 27 14, 2003) (finding other settlement agreement from unrelated case irrelevant). None of the other Aggrieved Individuals have complained about discrimination. Supplemental Response of April 5, 2016: The EEOC clarifies its prior response to state that on one occasion Ms. Gual complained about a worker’s compensation matter, not about discrimination, to her then-employer. Request for Production No. 12: All email communications to or from or copied to the Named Parties relating to Defendants, their employment with Defendants, the termination of their employment from Defendants, any emotional distress or other harm allegedly suffered as a result of their employment and termination of employment with Defendants, any attempts to secure employment with any employer and any other matter concerning this Action. Response: The EEOC objects to this request because it seeks emails that are protected from disclosure by the attorney-client privilege, seeks documents that are not reasonably calculated to lead to the discovery of admissible evidence, lacks particularity, is unduly burdensome, and is temporally and substantively overbroad on its face. By seeking all documents “relating” to “Defendants, their employment with Defendants, the termination of their employment with Defendants, [and] any emotional distress or other harm allegedly suffered” Defendants rely on omnibus phrases including “relating” and “concerning” that require the EEOC to either “guess or move through mental gymnastics” to determine what documents might conceivably fall within the scope of the request and the permissible bounds of discovery. Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 623 (D. Kan. 2005). “Use of a broad term such as ‘related to’ . . . does not modify a specific type of document, but rather all documents; thus, its very use makes the requests overly broad on their face.” Western Res., Inc. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 27 of 53 28 v. Union Pac. R.R. Co., 2001 U.S. Dist. LEXIS 24647, *10-11 (D. Kan. Dec. 5, 2001). The facial over-breadth and burdensomeness of this request is only exacerbated by the vague and ambiguous catch-all phrase “any other matter concerning this Action,” which could mean anything, ranging from the fact that the Aggrieved Individuals are from Ethiopia and Sudan, to the fact that Defendants are an employer within the meaning of Title VII. This lack of specificity and vagueness, coupled with the lack of any temporal limitations, fails to satisfy the specificity and particularity requirements of Federal Rules. The Federal Rules require that a request “describe each item and category with reasonable particularity.” Fed. R. Civ. P. 34(b). When a request is so fundamentally lacking in specificity a party is relieved of the burden of responding to such requests. Id. at *11-12; see generally Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 623 (D. Kan. 2005). The EEOC also objects to the extent that this request for production seeks electronic communications beyond the scope of the stipulated protocol into which the Parties entered on December 11, 2015, or beyond the search terms provided by Defendants related thereto, or beyond the time periods agreed to therein, which is January 1, 2007 to present. The EEOC also objects to the extent that Defendants’ search terms have yielded documents that are spam, and are therefore irrelevant to this lawsuit, and are beyond the control of the Aggrieved Individuals. Although produced herewith, these email communications cannot be attributed to the Aggrieved Individuals, and they have no basis of knowledge with respect to these emails and did not actively participate in those in communications, even though these email communications were found in their accounts. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 28 of 53 29 As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. The EEOC also objects to the extent that Defendants request for production seeks records beyond the Aggrieved Individuals’ possession, custody, or control. Mr. Mahgoub has a work email account with the Poudre School District. This account is a private account, the property of and owned by his employer, and is not within his legal possession, custody, or control. Mr. Mahgoub also has an email account with Colorado State University. This account is the property of and owned by Colorado State University. That account is not within Mr. Mahgoub’s possession, custody, or control. Subject to and without waiving its objections, EEOC states that the only Aggrieved Individuals with any personal, non-work or educational email accounts are Mohamed Mahgoub, Hanaa Gual and Marlene Hoem. Mr. Mahgoub has a Yahoo account, Ms. Gual has Gmail and Yahoo accounts, and Ms. Hoem has a Yahoo account. The EEOC has collected and preserved all of these accounts using X1 Social Discovery software and has run the search terms provided to the EEOC by Defendants, in accordance with the Parties’ stipulated ESI protocol. The EEOC produces herewith EEOC002517-013679, which includes all the records found in these four email accounts, from January 1, 2007 to present, which resulted from Defendants’ search terms, with the exception of privileged documents, which are identified on an updated privilege log produced herewith. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 29 of 53 30 Request for Production No. 13: All documents that relate, reflect, or refer to the Named Parties’ academic records, including but not limited to academic transcripts, diplomas, graduate certificates and applications for enrollment. Response: The EEOC objects to this request on the basis that it is as seeking information that is not reasonably calculated to lead to the discovery of admissible evidence, is temporally overbroad, and is unduly burdensome. Defendants request applications for enrollment for schools and academic programs spanning a period of three or four decades, which can shed no light on whether the Aggrieved Individuals were discriminated against by Defendants. Defendants also seek documents that the Aggrieved Individuals did not keep, and had no reason to keep over the years; that are outside the EEOC or Aggrieved Individuals’ possession, custody, and control; and that excessively pre-date the conduct that EEOC alleges to be discriminatory. Although litigation may support the discovery of some documents created during a reasonable period before and after the dates of discrimination, it does not entitle a party to unfettered requests for documents. Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 655 and n.29 (D. Kan. 2004) (two and a half years predating the alleged discrimination relevant, but not more). As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Subject to and without waiving any of its objections, the EEOC refers Defendants to EEOC0013683-13685 for Mohamed Mahgoub’s diplomas, one a Bachelor of the Arts in history from Colorado State University, and the other a Bachelor of Science Degree from the University of Khartoum – Sudan in Economics and Social Studies; EEOC013681-82 for Sawson Ibrahim’s Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 30 of 53 31 degree from Cairo University (now Al-Neelain University); and EEOC013691 for a copy of Mohamed Mahgoub’s transcript from Colorado State University. Request for Production No. 14: Current resumes for each of the Named Parties. Response: As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving its objections, the EEOC refers Defendants to EEOC013686 for Mohamed Mahgoub’s resume and EEOC013680 for Hanaa Gual’s resume. None of the other Aggrieved Individuals have a current resume. Request for Production No. 15: All documents concerning any written or recorded statements obtained from any third person or sent by you to any third person concerning EEOC’s claims in this Action, including but not limited to documents in the nature of surreptitious recordings, witness statements or summaries of meetings or interviews with any witness, whenever and however recorded. Response: The EEOC objects to this request as it lacks the particularity required under the Federal Rules requiring that a request “describe each item and category with reasonable particularity” and is vague, ambiguous, and overbroad on its face. Fed. R. Civ. P. 34(b). By seeking all documents “concerning” written or recorded statements, instead of just the original statements themselves, Defendants require the EEOC to either “guess or move through mental gymnastics” to determine what documents might conceivably fall within the scope of the request and the permissible bounds of discovery. Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 623 (D. Kan. 2005). Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 31 of 53 32 The EEOC also objects to this request as it is vague, ambiguous, and unclear as to the meaning of the terms “statement” and “recordings.” Recorded statements could be anything as small as a passing email from Defendants’ counsel to the EEOC. Similarly, it is also vague, ambiguous, and unclear whether Defendants include themselves or the Aggrieved Individuals within the definition of “third person.” Although the EEOC seeks relief for the Aggrieved Individuals, the EEOC also seeks relief in its own name and is the plaintiff in this case. Nevertheless, the Aggrieved Individuals enjoy an attorney-client relationship with the EEOC once the investigation into the Charge of Discrimination is completed. EEOC v. Albertson’s Inc., 2006 U.S. Dist. LEXIS 72378, *4-26 (D. Colo. Oct. 4, 2006) (attorney client). Thus, to the extent that Defendants seek statements from the Aggrieved Individuals after the close of the EEOC’s investigation, those statements are protected from disclosure. The EEOC also objects on the grounds of government deliberative process and attorney client privilege and the work product doctrine in that Defendants’ requests for all documents “concerning” statements obtained by the EEOC is so broad that it encompasses legal memoranda, advice, and communications exchanged within the agency that are pre-decisional and/or in contemplation of litigation. The EEOC is not required to produce: “(1)[] a document or tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for his representative.” See Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578, 586 (N.D.N.Y. 1998). Even during the investigation, statements authored by EEOC personnel that are pre-decisional, and analytic and disclosure of which would reveal the mental processes and decision-making of the agency, are not subject to discovery. NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150 (1975). Further, any third party Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 32 of 53 33 statements obtained by EEOC attorneys or their staff in preparation for or during this litigation are protected by the work product doctrine. The EEOC objects to this request to the extent that it requests production of documents in violation of 42 USCS § 2000e-5(b), prohibiting the use of conciliation records as evidence in this or any other proceeding. “Nothing said or done during and as a part of such [conciliation] may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” Id. Subject to and without waiving its objections, the EEOC states that it has produced all non-privileged statements made under oath (including written video, and audio recording) obtained by the EEOC during its investigation, as well as a written statement from Marlene Hoem that was recorded contemporaneously with her termination on September 30, 2008 at 1:30 PM:  Kiros Aregahgn’s August 3, 2009 Charge of Discrimination (EEOC000021- 000022);  Affidavit of September 10, 2009, by Andi Colburn (EEOC000111-112);  Affidavit of September 10, 2009, by Joyce Shorthill (EEOC000109);  Written Statement of Marlene Hoem (EEOC013687-13690) The EEOC cannot produce two statements that Defendant provided to EEOC during conciliation, that of Ashleey Dees on February 10, 2014 and Joyce Shorthill on February 13, 2014, without written consent of “all persons concerned,” as required by Title VII. 42 U.S.C. § 2000e-5. These statements have been withheld from production along with the remainder of the conciliation file. Request for Production No. 16: EEOC’s entire file related to the investigation of the Charge of Discrimination filed by Kiros Aregahgn as referenced in Paragraphs 12-22 of the Amended Complaint. To the extent EEOC asserts some kind of privilege or protection over Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 33 of 53 34 portions of its file, those assertions must be accounted for on a log in a manner sufficient for Defendants to assess the claimed privilege or protection. Response: The EEOC objects to this request to the extent it seeks documents protected by the attorney-client privilege or government deliberative process privilege, or the work-product doctrine. Legal analysis and memoranda authored by EEOC personnel that are pre-decisional and analytic, and disclosure of which would reveal the mental processes and decision-making of the agency, and communications undertaken by EEOC attorneys in contemplation and/or in furtherance of this lawsuit. These documents are not subject to discovery. See NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150 (1975) (government deliberative process); Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578, 586 (N.D.N.Y. 1998) (work product). The EEOC further objects to this request to the extent that it requests production of documents in violation of 42 USCS § 2000e-5(b), prohibiting the use of conciliation records as evidence in this or any other proceeding. “Nothing said or done during and as a part of such [conciliation] may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” Id. Subject to and without waiving its objections, EEOC refers Defendants to EEOC000001- 002244 for the entire file related to the investigation of the Charge of Discrimination filed by Kiros Aregahgn, with the exception of privileged documents, which are included in the privilege log produced herewith. Supplemental Response of January 9, 2016: Subject to and without waiving its objections, EEOC refers Defendants to EEOC015695-15698 for four documents that are part of Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 34 of 53 35 the EEOC investigative file. Because these documents are excel databases, these documents, could not be produced in PDF Format with the rest of the file, or bates numbered. These documents are being produced in native format, with bates numbers indicated in the title of the documents. Request for Production No. 17: All documents that support, refer, or relate to your answers to the Interrogatories or Requests for Admission served on you by Defendants in this Action. Response: EEOC objects that this Request is overbroad on its face as it has no discernible parameters and relies on the terms “all” documents that “refer” to or “relate” to any of the EEOC’s answers to Defendants’ 22 interrogatories and 16 requests for admission. Without any substantive or temporal limitations in this Request, it does not satisfy the particularity threshold enounced in Fed. R. Civ. P. 34(b). A document request is not reasonably particular and is instead facially overbroad if it merely requests all documents relating to an issue. Western Res., Inc. v. Union Pac. R.R. Co., 2001 U.S. Dist. LEXIS 24647, *10-11 (D. Kan. Dec. 5, 2001). Under such circumstances, a party is relieved of the burden of responding. Id. at *11-12; see generally Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 623 (D. Kan. 2005). The EEOC also objects to this Request to the extent that it requests the production of documents protected by the government deliberative process, attorney work product doctrine, and/or attorney-client privilege. EEOC has identified relevant documents, but to the extent Defendant requests the entire universe of documents EEOC believes “refer” to or that EEOC counsel considers to “support” or “relate” to the subject of each interrogatory or request for admission, such request seeks the mental impressions of EEOC counsel. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 35 of 53 36 Defendants’ request for production also encompasses investigation and communications undertaken by EEOC attorneys in contemplation and/or in furtherance of this lawsuit. The EEOC is not required to produce: “(1)[] a document or tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for his representative.” Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578, 586 (N.D.N.Y. 1998). The Aggrieved Individuals also share an attorney-client relationship with the EEOC, and any communications between and among EEOC legal staff and between and among the EEOC and these individuals are privileged. See EEOC v. Albertson’s Inc., 2006 U.S. Dist. LEXIS 72378, *4-26 (D. Colo. Oct. 4, 2006) (EEOC enjoys an attorney-client relationship with aggrieved individuals). The EEOC objects to this request to the extent that it requests production of documents in violation of 42 USCS § 2000e-5(b), prohibiting the use of conciliation records as evidence in this or any other proceeding. “Nothing said or done during and as a part of such [conciliation] may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” Id. The EEOC also objects to the extent that this request for production in part duplicates Defendants’ Request for Production No. 2, to which EEOC already responded. Subject to and without waiving its objections, the EEOC states that it has already produced all of the documents it identified in its responses to Defendants’ First and Second Set of Interrogatories (Nos. 1-8). It similarly will produce all documents it identifies in response to Defendants’ Third Set of Interrogatories and First Request for Admissions to Plaintiff, except Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 36 of 53 37 privileged documents, and those previously produced in earlier responses to discovery or EEOC’s disclosures. OBJECTIONS AND RESPONSES TO REQUESTS FOR ADMISSION Request for Admission No. 1: For each of the Named Parties except Aregahgn, admit that he/she never filed a charge of discrimination against either of the Defendants with the Equal Employment Opportunity Commission. Response: The EEOC objects that this request seeks irrelevant information that is not reasonably calculated to lead to the discovery of admissible evidence. “Congress has focused in the EEOC the power to investigate and bring actions aimed at seeking a remedy on behalf of all affected persons.” EEOC v. St. Louis-San Francisco Ry. Co., 743 F.2d 739, 744 (10th Cir. 1984). A charge received by the Commission, “merely provide[s] the EEOC with a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices; and that investigation may well disclose . . . illegal practices other than those listed in the charge.” EEOC v. Gen. Elec. Co., 532 F.2d 359, 364-65 (4th Cir. 1976) accord Outback Steak House, 520 F. Supp. 2d at 1263. Thus, whether the Aggrieved Individuals other than Kiros Aregahgn filed a charge of discrimination is irrelevant to the claims and defenses in this action. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Subject to and without waiving these objections, the EEOC admits that Aregahn filed a charge of discrimination, and that based on its investigation of Aregahn’s charge, the EEOC Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 37 of 53 38 found that Defendants had also discriminated against Ibrahim, Mahmoud, Gaul, and Hoem, who did not file charges of discrimination. Request for Admission No. 2: Admit that Aregahgn did not apply for employment with another company within Columbine Health Systems after her Separation Date. Response: The EEOC objects that this request seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence. Although Defendants have asserted an affirmative defense that the damages sought by the EEOC may be barred or reduced based on Aregahgn and the other Aggrieved Individuals’ failure to mitigate, the EEOC is not aware of any case law requiring an aggrieved individual to apply for reemployment with the defendant(s) who fired her. Subject to and without waiving this objection, the EEOC admits that Ms. Aregahgn’s Termination Form indicates that she was eligible for rehire outside of New Mercer Commons in a nonresident-related job, see EEOC000863, and that because Ms. Aregahgn was not eligible to be rehired as a Personal Care Provider or a substantially similar position, she did not seek reemployment in Columbine Health Systems after being fired. Request for Admission No. 3: Admit that Gual did not apply for employment with another company within Columbine Health Systems after her Separation Date. Response: The EEOC objects that this request seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence. Although Defendants have asserted an affirmative defense that the damages sought by the EEOC may be barred or reduced based on Gual and the other Aggrieved Individuals’ failure to mitigate, the EEOC is not Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 38 of 53 39 aware of any case law requiring an aggrieved individual to apply for reemployment with the defendant(s) who fired her. Subject to and without waiving this objection, the EEOC admits that Ms. Gual’s Termination Form indicates that she was eligible for rehire outside of New Mercer Commons in a nonresident related job, see NMC000172, and that because Ms. Gual was not eligible to be rehired as a Personal Care Provider or a substantially similar position, she did not seek reemployment in Columbine Health Systems after being fired. Request for Admission No. 4: Admit the Named Parties were employees at-will. Response: The EEOC objects that this request improperly calls for a legal conclusion as to status of the Aggrieved Individuals’ employment with Defendants. See, e.g., Stark-Romero v. Nat’l R.R. Passenger Co., 275 F.R.D. 551, 553-54 (D.N.M. 2011) (collecting cases for the proposition that while Fed. R. Civ. P. 36 permits the application of law to fact, a party still cannot demand that the other party admit the truth of a legal conclusion). The EEOC further objects that this request seeks irrelevant information that is not reasonably calculated to lead to the discovery of admissible evidence. Because the EEOC is statutorily authorized to assert claims under Title VII and other federal anti-discrimination statutes only, the EEOC has not and cannot assert claims implicating the legal status of the Aggrieved Individual’s employment with Defendants. Further, whether the Aggrieved Individuals had some “right” to their jobs is wholly irrelevant to the claims and defenses in this action; instead, the issue is whether Defendants “discriminated based on an impermissible factor.” Mardell v. Harleysvill Life Ins. Co., 31 F.3d 1221, 1233 (3d Cir. 1994) vacated on other grounds by 514 U.S. 1034 (1995), on remand, 65 F.3d 1072 (per curiam). Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 39 of 53 40 As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Subject to and without waiving any of its objections, EEOC responds that it cannot truthfully admit or deny this request for admission as it has insufficient information as to whether the Aggrieved Individuals were at-will employees or not, and the questions touches upon legal rights and causes of action outside of the EEOC’s jurisdiction. Request for Admission No. 5: Admit that Mohamed Osman Mahgoub and Sawsan Ibrahim were told they were caught cheating on the Personal Care Provider Exam administered by Defendants in April 2009. Response: The EEOC objects that this request is vague and ambiguous. Without a factual description of the conduct or basis upon which Defendants maintain that conduct constituted “cheating,” the EEOC cannot fairly respond to the substance of this request. Subject to and without waiving these objections, the EEOC denies this request. Neither Mahgoub nor Ibrahim were told that they were caught cheating on the Personal Care Provider Exam administered by Defendants in April 2009. Request for Admission No. 6: Admit that each of the named parties except Hoem, never stated to anyone (i.e. coworker, spouse, family member, friend, etc.) that they were being discriminated against by New Mercer based on their race and/or national origin prior to their termination of employment. Response: The EEOC objects that this request is vague and ambiguous. It is unclear whether “discriminated” refers to unlawful, actionable discrimination based on race and/or Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 40 of 53 41 national origin under Title VII or also applies to conduct that the Aggrieved Individuals or others subjectively believe to be discriminatory. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving these objections, the EEOC denies this request. Mr. Mahgoub and Ms. Ibrahim complained to Ms. Hoem, their supervisor at the time, about the way they were treated by Pamela Lewis after she became the Director at New Mercer Commons in late-2007 or early-2008. More specifically, Mahgoub and Ibrahim reported to Hoem that Lewis would rarely, if ever, greet, speak, or make eye contact with them, despite frequently greeting and conversing with other Personal Care Providers at New Mercer Commons. Both Mahgoub and Ibrahim believed that Lewis treated them in this manner because they were black and from Africa. Request for Admission No. 7: Admit Africa is not a nation. Response: The EEOC objects that this request seeks irrelevant information not reasonably calculated to lead to the discovery of admissible evidence. “The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.” 29 CFR § 1606.1. In light of this broad definition of national origin discrimination, case law has recognizes that a “place of origin” can include Africa and other continents of origin. See, e.g., Kanaji v. Children’s Hosp. of Philidelphia, 276 F. Supp. 2d 399, 401-404 (E.D. Pa. 2003); Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 41 of 53 42 Stern v. Trustee of Columbia Univ., 131 F.3d 305, 306, 312 (2d Cir. 1997); McNaught v. Va. Cmty. College Sys., 933 F. Supp. 2d 804, 817 (E.D. Va. 2013). As such, whether or not Africa is a nation is irrelevant to the claims and defenses asserted in this action. Subject to and without waiving these objections, the EEOC admits that Africa is a continent comprised of various countries, including Sudan and Ethiopia, African countries from which the Aggrieved Individuals emigrated. Request for Admission No. 8: Admit that none of the Named Parties asked for assistance in performing his/her job because he/she was not fluent in written English. Response: The EEOC objects that this request is vague, ambiguous, and confusing. In inquiring as to whether the Aggrieved Individuals asked for assistance in performing their jobs, the request improperly presupposes that the Aggrieved Individuals are not sufficiently fluent in written English to perform their job duties. The EEOC also objects that the term “fluent” is undefined and therefore vague and ambiguous. Defendants provide no objective criteria and no definitions have been provided, even though terms like “fluent” typically vary from situation to situation and person to person, and are highly subjective. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Subject to and without waiving these objections, the EEOC admits that all of the Aggrieved Individuals (Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem) were fully able to Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 42 of 53 43 perform their job duties at New Mercer Commons, and did not ask for assistance relating to written English. Request for Admission No. 9: Admit that none of the Named Parties asked for assistance in performing his/her job because he/she was not fluent in spoken English. Response: The EEOC objects that this request is vague, ambiguous, and confusing. In inquiring as to whether the Aggrieved Individuals asked for assistance in performing their jobs, the request improperly presupposes that the Aggrieved Individuals are not sufficiently fluent in spoken English to perform their job duties. The EEOC also objects that the term “fluent” is undefined and therefore vague and ambiguous. Defendants provide no objective criteria and no definitions have been provided, even though terms like “fluent” typically vary from situation to situation and person to person, and are highly subjective. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Subject to and without waiving these objections, the EEOC admits that all of the Aggrieved Individuals (Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem) were fully able to perform their job duties at New Mercer Commons, and did not ask for assistance relating to spoken English. Request for Admission No. 10: Admit that none of the Named Parties asked for any of the documents related to their employment, including the PCP exam, to be translated for them into another language. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 43 of 53 44 Response: The EEOC objects that this request is vague, ambiguous, and confusing. In inquiring as to whether the Aggrieved Individuals asked for any of the documents related to their employment to be translated, the request improperly presupposes that the Aggrieved Individuals are not sufficiently fluent in English to perform their job duties. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, Gual, and Hoem. Subject to and without waiving these objections, the EEOC admits that the Aggrieved Individuals did not ask to have any documents translated into another language. Request for Admission No. 11: Admit that none of the Named Parties asked for the assistance of a translator in connection with their employment, including the PCP Training Course and PCP exam. Response: The EEOC objects that this request is vague, ambiguous, and confusing. In inquiring as to whether the Aggrieved Individuals asked for translation assistance during the PCP Training Course and PCP exam, the request improperly presupposes that the Aggrieved Individuals are not sufficiently fluent in English to perform their job duties, that Defendants made the Aggrieved Individuals aware that translation was available, and that Defendants would have provided translation of the course or exam. Subject to and without waiving these objections, the EEOC admits that the Defendants did not inform the Aggrieved Individuals that if requested, a translator for the PCP Course and/or exam would be provided, and accordingly, the Aggrieved Individuals did not ask for translator services. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 44 of 53 45 Request for Admission No. 12: Admit that each of the Named Parties excluding Hoem understood the material they were being taught during the PCP Training Course. Response: The EEOC objects that this request is overbroad and unduly burdensome. The PCP Training Course was taught over the course of three days. It is impossible and unduly burdensome for Aregahgn, Gual, Mahgoub, and Ibrahim to recall any and all aspects of the PCP Training Course that they may or may not have understood. Moreover, if there were parts of the training the Aggrieved Individuals did not understand, it is unlikely, if not impossible, for the Aggrieved Individuals to recall those parts of the training they did not understand in the first place. The EEOC further objects that the request is confusing, vague, and ambiguous insofar as the term “understood” is undefined. It is unclear whether this request solicits an admission as to whether Aregahgn, Gual, Mahgoub, and Ibrahim understood the written and spoken language (i.e. English) used in the material taught during the PCP Training Course, whether they had a substantive understanding of those materials, or both. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving these objections, the EEOC responds that cannot truthfully admit or deny this request because the term “understood” is vague and ambiguous and there is no way for the Aggrieved Individuals to know what, if any, parts of the three-day PCP Training Course they did not fully understand in 2009. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 45 of 53 46 Request for Admission No. 13: Admit that each of the Named Parties excluding Hoem understood the questions they were being asked on the PCP exam. Response: The EEOC objects that the term “understood” is confusing, vague, and ambiguous. This request can be read to solicit an admission as to whether Aregahgn, Mahgoub, Gual, and Ibrahim understood the language in which the questions were written (i.e., English), the linguistic, grammatical, or structural phrasing of the questions, the substantive material to which the questions related, or all of the above. As stated above, the EEOC objects to Defendants’ definition of “Named Parties” to mean anything other than persons named as parties to the lawsuit. The EEOC responds with information about aggrieved individuals Aregahgn, Mahgoub, Ibrahim, and Gual. Subject to and without waiving these objections, the EEOC denies that the Aggrieved Individuals understood the questions on the PCP exam. Several of the Aggrieved Individuals who took the PCP Exam found the linguistic, grammatical, and structural characteristics to be confusing and difficult to understand. As an example, Mahgoub was confused by and misunderstood one or more questions that contained the qualifier “except.” At least one Aggrieved Individual believes she attempted to ask a question about the PCP exam, but was told that questions were not allowed. Finally, the copies of the Aggrieved Individuals’ exams show that they did not understand or misunderstood certain questions that were being asked. Request for Admission No. 14: Admit that you conveyed the settlement offers described in the August 19, 2014 letter from Mary Stuart to David Rucker to each of the Named Parties. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 46 of 53 47 Response: The EEOC objects to this request for admission as seeking information not reasonably calculated to lead to the discovery of admissible evidence, discouraged by Fed. R. Evid. 408, and violating 42 USCS § 2000e-5(b). “Nothing said or done during and as a part of such [conciliation] may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding . . . . Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both.” 42 USCS § 2000e-5(b). Under Title VII, there is “no exception for disclosure of conciliation materials to opposing parties.” Branch v. Phillips Petroleum Co., 638 F.2d 873, 880-81 (5th Cir. 1981); EEOC v. Olsten Staffing Servs., Corp., 627 F. Supp. 2d 972, 976 (W.D. Wisc. 2009) (“although the statute states that the conciliation information may not be used as evidence without the participants’ consent, courts considering this issue have held that it also applies to discovery.”). Defendants’ request is also irrelevant because it seeks information that cannot be admitted at trial or used as evidence in this case. Fed. R. Evid. 408 prohibits the use of compromise offers and negotiations to prove or disprove the validity or value of a disputed claim or for impeachment. Furthermore, under 42 USCS § 2000e-5(b), an employer is precluded from inquiring into or using conciliation for any purpose. Judicial review is strictly circumscribed. [T]he EEOC [must] communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an “endeavor” to achieve an employer’s voluntary compliance. That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of “reasonable cause.” Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 47 of 53 48 Commission complies with the statute. … And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1655-56 (2015) (citations omitted and emphasis added); see also EEOC v. JetStream Ground Servs., 2015 U.S. Dist. LEXIS 131386, *22-33 (D. Colo. Sept. 29, 2015) (rejecting defendant’s motion for summary judgment based on EEOC’s conciliation efforts because “Mach Mining . . . specifically stays this Court’s hand . . .”). Because the information sought is irrelevant, discouraged by the Federal Rules of Civil Procedure, and proscribed by Title VII under penalty of criminal prosecution, the EEOC respectfully declines to respond to this request for admission. Request for Admission No. 15: Admit that you conveyed Defendants’ offer to settle Aregahgn’s claims in this Action in August 2014 for $20,000. Response: The EEOC objects to this request for admission as seeking information not reasonably calculated to lead to the discovery of admissible evidence, discouraged by Fed. R. Evid. 408, and violating 42 USCS § 2000e-5(b). “Nothing said or done during and as a part of such [conciliation] may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding . . . . Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both.” 42 USCS § 2000e-5(b). Under Title VII, there is “no exception for disclosure of conciliation materials to opposing parties.” Branch v. Phillips Petroleum Co., 638 F.2d 873, 880-81 (5th Cir. 1981); EEOC v. Olsten Staffing Servs., Corp., 627 F. Supp. 2d 972, 976 (W.D. Wisc. 2009) (“although the statute states that the conciliation information may not be used as Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 48 of 53 49 evidence without the participants’ consent, courts considering this issue have held that it also applies to discovery.”). Defendants’ request is also irrelevant because it seeks information that cannot be admitted at trial or used as evidence in this case. Fed. R. Evid. 408 prohibits the use of compromise offers and negotiations to prove or disprove the validity or value of a disputed claim or for impeachment. Furthermore, under 42 USCS § 2000e-5(b), an employer is precluded from inquiring into or using conciliation for any purpose. Judicial review is strictly circumscribed. [T]he EEOC [must] communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an “endeavor” to achieve an employer’s voluntary compliance. That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of “reasonable cause.” Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. … And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1655-56 (2015) (citations omitted and emphasis added); see also EEOC v. JetStream Ground Servs., 2015 U.S. Dist. LEXIS 131386, *22-33 (D. Colo. Sept. 29, 2015) (rejecting defendant’s motion for summary judgment based on EEOC’s conciliation efforts because “Mach Mining . . . specifically stays this Court’s hand . . .”). Because the information sought is irrelevant, discouraged by the Federal Rules of Civil Procedure, and proscribed by Title VII under penalty of criminal prosecution, the EEOC respectfully declines to respond to this request for admission. Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 49 of 53 50 Request for Admission No. 16: Admit that Aregahgn declined Defendants’ offer to settle her claims in this Action for $20,000 without presenting a counteroffer Response: The EEOC objects to this request for admission as seeking information not reasonably calculated to lead to the discovery of admissible evidence, discouraged by Fed. R. Evid. 408, and violating 42 USCS § 2000e-5(b). “Nothing said or done during and as a part of such [conciliation] may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding . . . . Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both.” 42 USCS § 2000e-5(b). Under Title VII, there is “no exception for disclosure of conciliation materials to opposing parties.” Branch v. Phillips Petroleum Co., 638 F.2d 873, 880-81 (5th Cir. 1981); EEOC v. Olsten Staffing Servs., Corp., 627 F. Supp. 2d 972, 976 (W.D. Wisc. 2009) (“although the statute states that the conciliation information may not be used as evidence without the participants’ consent, courts considering this issue have held that it also applies to discovery.”). Defendants request is also irrelevant because it seeks information that cannot be admitted at trial or used as evidence in this case. Fed. R. Evid. 408 prohibits the use of compromise offers and negotiations to prove or disprove the validity or value of a disputed claim or for impeachment. Furthermore, under 42 USCS § 2000e-5(b), an employer is precluded from inquiring into or using conciliation for any purpose. Judicial review is strictly circumscribed. [T]he EEOC [must] communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an “endeavor” to achieve an employer’s voluntary compliance. That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of “reasonable cause.” Such notice properly describes both what the employer has done and which employees Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 50 of 53 51 (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. … And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1655-56 (2015) (citations omitted and emphasis added); see also EEOC v. JetStream Ground Servs., 2015 U.S. Dist. LEXIS 131386, *22-33 (D. Colo. Sept. 29, 2015) (rejecting defendant’s motion for summary judgment based on EEOC’s conciliation efforts because “Mach Mining…specifically stays this Court’s hand…”). Because the information sought is irrelevant, discouraged by the Federal Rules of Civil Procedure, and proscribed by Title VII under penalty of criminal prosecution, the EEOC respectfully declines to respond to this request for admission. DATED: April 5, 2016 Respectfully submitted, s/ Mike Imdieke Michael Imdieke Trial Attorney Telephone: 303.866.1320 E-Mail: michael.imdieke@eeoc.gov EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Denver Field Office 303 East 17th Avenue, Suite 410 Denver, Colorado 80203 Facsimile: 303.866.1375 Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 51 of 53 52 Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 52 of 53 53 CERTIFICATE OF SERVICE I hereby certify that on April 5, 2016, I served the foregoing on the following by electronic mail to the following e-mail addresses: Mary Hurley Stuart, Esq. Barbara A. Grandjean, Esq. Husch Blackwell LLP 1700 Lincoln Street, Suite 4700 Denver, CO 80203 Tel: 303-749-7200 Fax: 303-749-7272 Mary.Stuart@huschblackwell.com Barbara.Grandjean@huschblackwell.com Attorneys for Defendants s/ Mike Imdieke Trial Attorney Case 1:15-cv-01597-MSK-CBS Document 64-5 Filed 09/30/16 USDC Colorado Page 53 of 53 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 1 Executive Summary Husch Blackwell retained the Peoplefluent Research Institute (PRI) to evaluate the job-relatedness of a training assessment given to Personal Care Providers at New Mercer Commons Assisted Living Facility beginning in the April 2009 timeframe. The assessment covered materials learned during a three-day training course. To conduct the content validity study, PRI conducted a job analysis including interviews, observations and a job analysis survey and a survey asking incumbents to provide ratings of each assessment item’s relationship to their job. Report Date: August 1, 2016 Project Lead: Dr. Lisa Harpe, PhD Principal. Consultant / Industrial Psychologist Peoplefluent Research Institute (PRI) Phone: (919) 645.2975 Email: Lisa.Harpe@peoplefluent.com Study Dates: March 2016 - July 2016 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 1 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 2 Report Overview This content validity study report follows the relevant format and content requirements as set forth in the Uniform Guidelines on Employee Selection Procedures, section 15(c) in particular which covers content validity. The report contains the following sections relevant to the guidelines: Problem and Setting; Description of the Selection Procedure; Job Analysis—Content of the Job; Relationship between the selection procedure and the job content; and Conclusions. Problem and Setting The Peoplefluent Research Institute (PRI) conducted a content validity study of a training assessment given to Personal Care Providers (PCPs) employed by New Mercer Commons Assisted Living Facility (New Mercer). New Mercer is an assisted living facility in Fort Collins, CO. Columbine Management Services provides management and consulting services to New Mercer. New Mercer residents include older men and women requiring assistance in their activities of daily living. New Mercer offers three levels of care including Assisted, Assisted Plus, and Memory Care. These sections vary by the condition and corresponding needs of the residents with Assisted Living appropriate for residents requiring little to no cueing1, reminders or other assistance; Assisted Plus appropriate for residents who require cueing, reminders and assistance with daily living activities; and Memory Care appropriate for residents with memory, Alzheimer’s or other cognitive deficiencies. Appendix A provides a description of services provided at different levels of care. PCPs assist residents within an assisted living facility with daily activities and functioning such as bathing, dressing, oral hygiene, meals, bathing, and toileting. They assist with mobility and facilitate social activities including interactions with other residents. In addition, they help residents maintain their living spaces through light cleaning, bed making and laundry. PCPs primarily learn how to perform their jobs by shadowing more experienced PCPs on-the-job and through training or education provided by New Mercer. Over the years, New Mercer has accepted residents with more severe physical and mental deficiencies. The increasing needs of its residents required additional education and training by its PCPs. In addition, New Mercer may place a PCP in the Assisted Living, Assisted Living Plus, or Memory Care section on a rotating basis, requiring PCPs to assist residents with a wide range of physical and mental conditions. New Mercer asked the Clinical Education Director of the Geriatric Education Center (GEC), to create a training course for PCPs covering topics related to the PCP role. The GEC prepared and offered a three-day training for PCPs including classroom and hands-on learning activities. Appendix B contains an outline of topics covered during the three-day training. The course required trainees to take either daily quizzes or a final exam to demonstrate understanding and retention of the course material. New Mercer required PCPs to score a minimum of 75% on the training assessment to remain employed 1 Cueing involves verbal or physical cues to residents to eat, brush teeth, indicate where an item is located, for example. ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 2 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 3 as a PCP. The purpose of this content validity study was to evaluate the job relatedness of the PCP training assessment. Description of the Selection Procedure There have been four versions of the PCP training assessment: April 2009, October 2009, November 2009 and October 2010. Each assessment contains a number of true / false, multiple choice or open-ended questions related to topics covered during the three-day PCP training. For the April 2009, October 2009, and November 2009 versions, trainees took a quiz after each of the three training days. There were two versions for each day (i.e., Day One Quiz A, Day One Quiz B, Day Two Quiz A, Day Two Quiz B, Day Three Quiz A, and Day Three Quiz B). The average score across the three days equals the final score. The October 2010 version contained all items in one assessment given at the completion of the training. Appendix C provides a list of all the assessment items for each assessment and each version. The shortest version, October 2009, contained 41 items. The longest version, November 2010, contained 57 items. All versions contain 40 common items. Appendix D contains a list of common assessment items. The April 2009 assessment contained three items subsequently dropped from other assessments: 1. Caring for a resident/client with Alzheimer's disease can be very stressful to the PCP because of aggressive or disruptive behaviors. (True or False); 2. A catastrophic reaction is an emotional response to noise or a feeling of being overwhelmed. (True or False); and 3. Oxygen can blow up and create a fire. (True or False). One item from the November 2009 assessment was dropped from the October 2010 version: Explain how a 30-degree lateral side position will help the resident/client's skin. (Open ended). Appendix E contains assessment items added for the November 2009 and October 2010 assessments. The PCP training assessment has been in use since April 2009. Over the first year and a half, trainees participated in a three-day training covering topics related to the care of older people. After each day of training, trainees completed a quiz. The quiz scores were averaged and trainees with an average score of 75% or more received a certificate of completion from GEC. Trainees with an average score of less than 75% did not receive a certificate of completion from GEC. Management at New Mercer terminated the employment of PCPs who did not successfully complete the PCP training course. PRI had access to PDFs of the actual assessments for 135 participants along with a separate file containing information such as their training dates, the facility where they were employed, and their original training assessment scores. PRI created a spreadsheet reflecting whether each assessment item was answered incorrectly (coded as 0), partially correct (coded as 1), or correctly (coded as 2). Because there were four versions of the assessment with multiple versions for some assessments (i.e., A and B), PRI created a master question list with the corresponding items from each version. (See Appendix F.) PRI used this information to identify whether the assessment taker responded correctly, partially correct, or incorrectly to each master question. The focus of the current validation study was to evaluate the job-relatedness of the 43 items from the April 2009 training assessment. Only six assessments were available from the April 2009 training so PRI only had assessment item responses for all 43 items for six individuals. However, there are 40 items common to all versions, and PRI had access to 135 assessments with item responses for these 40 items. Therefore, PRI calculated an assessment score (i.e., % correct) on the 40 items for all 135 assessment takers and examined the ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 3 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 4 scores and reliability for an assessment containing the 40 common items and the 43 items on the April 2009 version. Table 1 provides the counts of assessment scores available for each training period and for each facility. The PCP training was offered to PCPs in facilities other than New Mercer, including other Columbine Management System assisted living facilities. In addition, the GEC offered the training course to members of the public. Table 1. Dates of Training, Facility Affiliation of Assessment Takers and Assessment Versions Date of Training Frequency Percent Cumulative Frequency Cumulative Percent 01/5/2011-01/7/2011 9 6.67 9 6.67 02/23/2010-2/25/2010 7 5.19 16 11.85 03/17/2010-03/19/2010 7 5.19 23 17.04 03/25/2011-03/27/2011 5 3.70 28 20.74 04/07/2010-04/14/2010 9 6.67 37 27.41 06/07,06/14/2010-06/16/2010 5 3.70 42 31.11 07/19/,07/26/2010 5 3.70 47 34.81 1/18/2010-01/20/2010 5 3.70 52 38.52 1/4/2010-01/6/2010 8 5.93 60 44.44 1/5/2011-1/7/2011 1 0.74 61 45.19 10/12/2010-10/14/2010 13 9.63 74 54.81 10/4/2013-11/20/2013 9 6.67 83 61.48 11/18/2013-11/20/2013 7 5.19 90 66.67 11/30/2009-12/2/2009 4 2.96 94 69.63 11/8/2010-11/12/2010 4 2.96 98 72.59 12/15/2014-12/17/2014 4 2.96 102 75.56 12/9/2015-12/11/2015 3 2.22 105 77.78 4/16/2014-4/18/2014 8 5.93 113 83.70 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 4 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 5 Date of Training Frequency Percent Cumulative Frequency Cumulative Percent 4/22/2009-4/24/2009 5 3.70 118 87.41 4/26/2009-4/28/2009 1 0.74 126 93.33 8/13/2014-8/15/2014 9 6.67 135 100 Facility Name Frequency Percent Cumulative Frequency Cumulative Percent Bloom at Home 6 4.44 6 4.44 CCR4 17 12.59 23 17.04 Caring Solutions 12 8.89 35 25.93 Columbine Commons 4 2.96 39 28.89 External Participant 13 9.63 52 38.52 LVC14 1 0.74 53 39.26 Lakeview Commons 19 14.07 72 53.33 New Mercer Commons 63 46.67 135 100.0 Assessment Version Frequency Percent Cumulative Frequency Cumulative Percent April 2009 6 4.44 6 4.44 November 2009 44 32.59 50 37.04 October 2010 85 62.96 135 100.0 Using the originally recorded assessment score, assigned at the time of training, and a 75% pass score, 130 assessment takers (96%) passed the assessment and five assessment takers (4%) failed the assessment. Fifty- six assessment takers (41%) answered all assessment questions correctly. For the 40 item assessment, the mean score across the 135 assessment takers was 93.8 with a standard deviation of .091. The 25%ile score was 92.5 indicating that 75% of assessment takers scored 92.5 or greater. The median score was 97.5 indicating that 50% of assessment takers scored 97.55 or more. The mode or most frequent ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 5 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 6 assessment score was 100%. The internal reliability using Cronbach’s alpha was .86, indicating good test reliability. For the 43 item assessment, PRI only had access to six assessments. The mean score across the six assessment takers, which included four individuals who failed the assessment was 67.8 with a standard deviation of .20. The 25%ile score was 51.1 indicating that 75% of assessment takers scored 51.1 or greater. The median score was 66.3 indicating that 50% of assessment takers scored 66.3 or more. There was no mode since each assessment taker had a distinct assessment score. The internal reliability using Cronbach’s alpha was .93, indicating good test reliability. Job Analysis—Content of the Job This section provides the following information: the work setting, job analysis procedure and methods, and results. The Work Setting New Mercer Commons Assisted Living Facility is an assisted living facility located in Fort Collins, CO. New Mercer contains rooms located in three sections, Assisted, Assisted Plus, and Memory Care, which differ based on the physical and cognitive conditions of the residents. Staff include PCPs, PCP shift managers, licensed practical nurses, and registered nurses. PCPs may operate in any of the three sections and work one of three shifts ensuring 24-hour coverage for the residents. According to a May 1, 2016 roster, New Mercer employed 53 PCPs, 35 full-time and 18 part-time, and 7 PCP managers, 5 full-time and 2 part-time. Job Analysis Procedure and Methods Documentation Review. In preparation for the interviews and observations and as supplemental information for the job analysis survey, PRI reviewed New Mercer Commons brochures, PCP job descriptions, and PCP training materials. Administrator Interviews. PRI spoke with the following administration staff at New Mercer Commons: Yvonne Myers, Health Services Director; Joyce Shorthill, Human Resources Director; Gina DiGiallonardo, Administrator; and Rebekkah Dowd, PCP Staffing. PRI asked about the PCP job and training. All information acquired during these interviews was incorporated into the job analysis survey. Interviews. PRI travelled to New Mercer to conduct observations and interviews on April 25 and 26, 2016. During the on-site visit, PRI interviewed five PCPs and one PCP shift manager. Appendix G provides the name, position, part-time/full-time status, date of hire, and race of those interviewed. The purpose of the interviews was to identify or confirm PCP tasks and knowledge, skills, and abilities (KSAs) for inclusion in the job analysis survey. ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 6 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 7 Survey. Based on the documentation review and interviews, PRI developed a job analysis survey. (See Appendix H.) The survey contained two sections: tasks and KSAs. PRI identified the tasks and KSAs through a review of information found about personal care positions via an internet search, interviews with New Mercer administrators, interviews with New Mercer PCPs and PCP shift managers, and a review of the three-day training outline. Incumbents received a set of survey instructions describing the purpose of the job analysis survey, instructions for rating each task and KSA on the frequency with which the task is performed on the job or the frequency with which the KSA is used on the job, instructions to rate each task and KSA on the importance of each task or KSA to perform the job; and examples of how to specifically record the ratings. The job analysis survey contained 52 tasks and 36 KSAs. For each task, incumbents were asked to rate the frequency with which they perform the task (i.e., I don’t do this; hourly; daily; weekly; monthly; less than monthly) and the importance of doing this task to their job (i.e., I don’t do this; not important; somewhat important; important; very important; and extremely important). New Mercer shift managers provided the job analysis surveys to PCPs at the staff meeting starting each shift and asked PCPs to complete the surveys on-site. Respondents placed completed surveys in a white folder and turned them in to New Mercer administrative staff. Surveys were anonymous with the identity of the respondent marked on the outside of the folder for the sole purpose of describing the respondents as a group (e.g., average tenure). Surveys were then sent directly to PRI. Surveys were distributed and completed the week of May 2 with a few respondents completing the survey the week of May 9. At the time of administration, New Mercer employed 53 Personal Care Providers, 18 part-time and 35 full-time employees. In addition, New Mercer employed 7 PCP Managers, 2 part-time and 5 full-time employees. PRI received 42 completed surveys with 31 surveys included in subsequent analysis. Of the 11 exclusions, eight surveys were completed by PCPs hired after February 1, 2016; two surveys were completed incorrectly; and one survey was unmarked for identification purposes. PCP Managers completed four surveys and PCPs completed the remaining 27 surveys. The average tenure for the 31 respondents was 2.3 years. There were 17 white respondents, 9 with unknown race, 2 respondents who indicated two or more races, and 3 Black respondents for a total of 17 Whites and 5 Minorities out of the 22 respondents with known race. Results For each item, PRI calculated the average frequency and importance, the number of respondents who indicated that the item was not applicable (NA) and the average criticality where criticality equals the frequency times the importance rating. Items that fell below an average of 3 on importance or frequency or items that more than 50% of respondents indicated as not applicable were excluded from the final list of tasks and KSAs. Table 2 lists the final set of tasks sorted in descending order by criticality. Table 3 lists the tasks excluded from the final set of tasks. ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 7 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 8 Table 2. Tasks Identified as Important to the PCP Job in Order of Criticality (Importance scale: 0 = not applicable; 1=not important; 2 = somewhat important; 3 = important; 4 = very important; 5 = extremely important. Frequency Scale: 0=not applicable; 1 = less than monthly; 2 = monthly; 3 = weekly; 4 = daily; 5 = hourly) Task Item # N Avg Freq Avg Imp # N/A Crit Perform infection control procedures at all times (washing hands, gloves). 48 31 4.6 4.8 0 11.2 Respect the confidentiality of resident information, follow the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and follow employer confidentiality guidelines. 7 31 4.6 4.8 0 11.0 Respond promptly to call lights. 40 31 4.8 4.6 0 11.0 Abide by all state and facility standards. 9 31 4.6 4.7 0 10.8 Ensure service is delivered in accordance with all relevant policies, procedures, and practices. 8 31 4.6 4.5 0 10.5 Assist residents with Toileting (e.g., urinal, commode, perineal care, care of incontinent client). 29 31 4.5 4.6 0 10.4 Follow established infection control procedures. 49 31 4.4 4.7 0 10.4 Observe residents and their environments and report behavior, physical and / or cognitive changes and / or need for changes in living arrangements to shift manager. 10 31 4.5 4.6 0 10.3 Provide perineal care (cleaning of genital and anal areas) to residents. 38 31 4.4 4.5 0 10.1 Demonstrate proper hand washing procedures. 43 31 4.3 4.3 2 10.1 Demonstrate respectful and professional interaction with the resident, significant other(s), and family members. 47 31 4.4 4.5 0 9.8 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 8 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 9 Task Item # N Avg Freq Avg Imp # N/A Crit Develop and maintain constructive and cooperative working relationships with others. 4 31 4.5 4.2 0 9.6 Provide companionship, friendship, and emotional support to residents. 16 31 4.4 4.4 0 9.6 Demonstrate basic language, reading, and written communication skills. 2 31 4.4 4.2 0 9.5 Demonstrate effective communication, including listening, paraphrasing, and asking open-ended questions. 5 31 4.4 4.2 0 9.4 Read and follow resident care plans. 14 30 4.2 4.5 0 9.4 Carry out duties as assigned by the shift supervisor. 32 31 4.5 4.1 0 9.3 Provide counsel, comfort, or encouragement to residents or families. 15 31 4.1 4.1 0 8.5 Understand written sentences and paragraphs in work related documents. 1 31 4.1 4.0 1 8.4 Assist residents with bathing (bed, tub, shower, sponge, whirlpool). 27 31 3.9 4.3 0 8.4 Assist residents with dressing (with/without assistive devices i.e., wraps, binders, splints). 22 31 3.9 4.1 1 8.3 Assist residents with Oral Hygiene (brushing, flossing, care of dentures). 18 31 3.8 4.0 2 8.2 Assist residents with walking. 37 31 4.1 3.9 0 8.1 Clean and ensure appropriate function and care of appliances such as glasses, hearing aids, orthotics, prostheses, and assist with their use. 24 31 4.1 3.9 0 8.0 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 9 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 10 Task Item # N Avg Freq Avg Imp # N/A Crit Complete and maintain records of daily activities and observations. 11 31 3.9 3.8 2 7.9 Assist residents with routine Skin Care (lotion, powder, back massage). 21 31 4.0 3.9 0 7.8 Demonstrate ways of promoting the resident’s independence. 41 31 3.8 3.6 3 7.7 Assist residents with special needs (e.g., physical impairments, mental decline, speech issues). 50 31 3.7 3.5 5 7.7 Assist residents with Catheter care (empty drainage bag, cleansing of bag and tubing). 30 31 3.3 4.5 0 7.6 Communicate effectively in writing as appropriate for the needs of the audience. 3 31 3.7 3.8 1 7.5 Demonstrate ability to resolve conflict among residents and / or staff. 6 31 3.7 3.9 0 7.5 Read and follow physician orders. 13 31 3.4 3.7 6 7.5 Prepare soiled linen for laundry. 26 31 3.8 3.9 0 7.4 Report all safety violations to shift manager. 12 31 3.4 4.1 1 7.2 Assist with menu choices and food handling. 25 31 3.6 3.5 3 7.0 Care for a sensory deprived consumer. 51 31 3.4 3.3 6 7.0 Provide assistance to residents with position change and movement. 34 31 3.1 3.0 7 6.2 Encourage residents to feed themselves. 44 31 3.0 3.0 8 6.2 Explain the role of the care provider (e.g. services to residents in assisted living setting). 45 31 3.1 3.1 5 5.8 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 10 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 11 Table 3. Tasks that Did Not Meet the Cutoff Criteria for Inclusion Task Item # N Avg Freq Avg Imp # N/A Crit Explain the care provider’s responsibility to identify, prevent, and report abuse, exploitation, and neglect. 46 30 2.6 3.7 4 5.6 Assist residents with exercise and activity. 35 31 2.5 2.5 11 5.1 Participate on the Care Team by providing input and making suggestions. 31 31 2.5 2.8 9 4.9 Make an occupied and unoccupied bed. 23 31 3.0 2.5 7 4.8 Assist residents with shaving. 20 31 2.6 2.8 8 4.7 Demonstrate proper use of bedpan, urinal, and commode. 42 31 2.0 1.9 15 3.8 Attend orientation, in-service training sessions, and staff meetings. 52 31 2.1 3.5 0 3.8 Facilitate small group activities and social interaction under supervision of activities staff. 17 31 1.8 2.0 14 3.3 Provide residents with back rubs, foot rubs, leg rubs, arm/hand rubs. 36 31 1.8 1.7 14 2.9 Assist residents with fingernail and toenail care (soak, clean, file, trim with clippers, lotion and care of cuticles) NON DIABETIC ONLY. 19 31 1.5 1.6 16 2.6 Perform healthcare-related tasks, such as monitoring vital signs and medication, under the direction of registered nurses or physiotherapists. 33 30 1.1 1.2 21 2.4 Describe basic anatomy and physiology of body systems. 39 31 1.2 1.4 18 2.2 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 11 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 12 Task Item # N Avg Freq Avg Imp # N/A Crit Assist residents with eating, chewing and swallowing. 28 31 0.7 0.6 25 1.2 Table 4 lists the final set of KSAs sorted in descending order by criticality. Table 5 lists the KSAs excluded from the final set of KSAs. Table 4. KSAs Identified as Important to the PCP Job in Order of Criticality (Importance scale: 0 = not applicable; 1=not important; 2 = somewhat important; 3 = important; 4 = very important; 5 = extremely important. Frequency Scale: 0=not applicable; 1 = less than monthly; 2 = monthly; 3 = weekly; 4 = daily; 5 = hourly) Knowledge, Skill or Ability Item # N2 Avg Freq Avg Imp # N/A Crit Knowledge of proper body mechanics and transfers: Bed to chair/commode, bed to wheelchair and back and participants with weak or paralyzed side for the elderly population 12 30 4.6 4.5 0 10.4 Ability to communicate with others 24 30 4.6 4.5 0 10.4 Ability to work well with others 25 30 4.6 4.4 0 10.2 Knowledge of resident rights and confidentiality 5 30 4.4 4.6 0 10.1 General knowledge of mental illness/behaviors and ways to work with residents with Alzheimer’s, dementia, depression, and generalized anxiety 31 30 4.4 4.6 0 10.1 Knowledge of the role of the PCP 1 30 4.5 4.3 0 9.8 Ability to understand the resident’s care plan 2 30 4.3 4.4 0 9.7 2 One respondent rated the tasks but not the KSAs. ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 12 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 13 Knowledge, Skill or Ability Item # N2 Avg Freq Avg Imp # N/A Crit Knowledge of communication barriers in elderly 3 30 4.5 4.3 0 9.7 Ability to communicate information orally so others understand 33 30 4.4 4.3 0 9.7 Ability to understand written and oral instructions 32 30 4.4 4.3 0 9.5 Documentation skills 4 30 4.4 4.3 0 9.4 Knowledge of toileting equipment/supplies including care, cleaning, and disposal for the elderly population 20 30 4.4 4.1 1 9.3 Knowledge of accepted practice of infection control in assisted living facilities 8 30 4.0 4.4 1 9.2 Knowledge of oxygen supplies , equipment and safety 28 30 4.1 4.4 1 9.2 Knowledge of cognitive impairments, care needs, and techniques when working with cognitively impaired individuals 30 30 4.1 4.2 1 9.0 Knowledge of basic terminology and assistive devices including cane, walker, wheelchair and crutches for the elderly population 11 30 4.3 4.0 0 8.9 Ability to communicate in writing so others understand 34 30 4.1 4.2 0 8.8 Knowledge of safety procedures in assisted living facilities 7 30 4.1 4.2 0 8.7 Basic knowledge of dressing practices including putting on/off clothes, bras, etc. tying shoes for the elderly population 10 30 4.1 4.2 0 8.6 Knowledge of bathing practic es for the elderly population 23 30 4.1 4.1 0 8.5 Knowledge of generally accepted practice for maintaining kitchen, bedroom, and other rooms used by residents in clean and safe condition 26 30 4.1 3.8 2 8.5 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 13 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 14 Knowledge, Skill or Ability Item # N2 Avg Freq Avg Imp # N/A Crit Knowledg e of oral hygiene for the elderly 18 30 4.1 4.1 0 8.4 Knowledge of elimination, terms, and problems with urina ry and bowel function for the elderly population 19 30 4.2 3.9 0 8.3 Knowledge of skin care for the elderly population 21 30 4.1 4.0 0 8.3 Knowledge of State laws, regulations and guidelines that pertain to Assisted Living 35 30 3.7 3.9 4 8.2 Knowledge of range of motion for the elderly population 13 30 3.8 3.6 3 7.8 Ability to read and interpret documents such as safety rules, operating and maintenance instructions, and procedure manuals 36 30 3.6 4.1 0 7.7 Knowledge of nutrition, food , and liquid for the elderly population 16 30 3.3 3.3 6 6.9 Knowledge of bed making: occupied or unoccupied beds 9 29 3.3 3.0 5 6.2 Knowledge of shaving and nail care for the elderly population 22 30 3.0 3.1 6 6.2 Table 5. KSAs that Did Not Meet the Cutoff Criteria for Inclusion Knowledge, Skill or Ability Item # N3 Avg Freq Avg Imp # N/A Crit Knowledge of death and dying (e.g., stages and signs of dying) 17 30 2.5 3.5 4 5.4 3 One respondent rated the tasks but not the KSAs. ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 14 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 15 Knowledge, Skill or Ability Item # N3 Avg Freq Avg Imp # N/A Crit Knowledge of generally accepted practice in care of nebulizers or other inhalation equipment 27 30 2.9 3.2 8 6.4 Knowledge of dealing with a resident with specialized feeding needs (i.e. difficulty swallowing, frequent aspiration, set-up, and specialized equipment) 29 30 2.0 2.4 14 4.4 Knowledge of rehabilitation therapy for the elderly population 14 30 1.8 2.1 14 3.8 Knowledge of side rail safety for the elderly population 15 30 1.7 1.9 16 3.6 Knowledge of Living Wills 6 30 1.1 1.4 19 1.9 Relationship between the selection procedure and the job content There are a number of methods that could be useful for establishing a linkage between the content of the job and the content of the training assessment. PRI first asked two senior administrators to identify the specific tasks and KSAs from the job analysis related to each assessment item. Assessment items with no related tasks or KSAs from the job analysis should not be included on the assessment or assessment takers should not be required to answer that number of questions correctly. Second, PRI created a survey containing all assessment items across the four assessment versions and asked incumbents to rate each assessment item on the importance of knowing the answer to the PCPs job and on whether a minimally acceptable PCP would answer the question correctly. Assessment items identified as unimportant or items that should not be answered correctly by a minimally acceptable PCP should not be included on the assessment or assessment takers should not be required to answer that number of questions correctly. Identification of tasks and KSAs related to each assessment item. Joyce Shorthill, Human Resource Director, and Yvonne Myers, Health Services Director, participated in a conference call to review each assessment item and then indicate the specific tasks and KSAs from the job analysis related to each assessment item. Only the 37 tasks and 29 KSAs which met the criticality and applicability criteria were included, that is, as presented in tables 2 and 4 of the job analysis section above. Appendix I contains a list of each assessment item from the April 2009 assessment version along with the task numbers and KSA numbers that New Mercer representatives identified as related to each item. Appendix I also provides a numbered list of tasks and a numbered list of KSAs. On average, for the April 2009 assessment items, ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 15 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 16 the New Mercer representatives identified 21 tasks and 18 KSAs per assessment item. They identified a minimum of two tasks for assessment items 1 and 10 and a maximum of 37 tasks for assessment items 3-9 and 27. They identified a minimum of two KSAs for assessment items 1 and 10 and a maximum of 29 tasks for assessment items 3-9 and 27. It is apparent that the administrators see a direct link between the assessment items and the content of the PCP’s job. Incumbent Ratings of Assessment Items. In addition, PRI conducted a survey of incumbents and asked them to indicate how important it is to know the answer to each question on the PCP training assessment and whether they would expect a minimally acceptable PCP to answer each question correctly. See Appendix J for a copy of the survey instructions and the actual survey. The survey administration method was similar to that for the job analysis survey and was conducted approximately one month later. PRI received 50 completed surveys with 25 included in subsequent analysis. Of the 25 exclusions, five surveys were completed incorrectly, and 20 surveys were either completed by PCPs hired after February 1, 2016 or were unmarked for identification purposes. The average tenure for the 25 respondents was 3.3 years. There were 14 White respondents, 5 with unknown race, 1 respondent who indicated two or more races, 1 Asian respondent, 1 Hispanic respondent, and 3 Black respondents for a total of 14 Whites and 6 Minorities out of the 20 respondents with known race. Table 6 provides a list of each of the 43 assessment items from the April 2009 assessment, the number of surveys responses, the mean importance rating, and the percentage of respondents who indicated that the item should be answered correctly by a minimally acceptable PCP. Table 6 is sorted in descending order based on the percentage of respondents who indicated a PCP should know the answer to this question. Table 6. Assessment items with Mean Importance Rating and Percent Indicating a PCP Should Know the Answer (Importance scale: 1=not important; 2 = somewhat important; 3 = important; 4 = very important; 5 = extremely important. Would you expect a PCP who performs at minimally acceptable level to answer question correctly? Yes or No) Question Content Quest No N4 Mean Importance % Yes What is the single most important skill/action to prevent the spread of infection. ________________ 16 25 4.5 100 4 24 respondents provided minimum performance responses. ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 16 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 17 Question Content Quest No N4 Mean Importance % Yes Describe three resident/client care concerns that would be a reason to call the supervisor. ____________________________ 2 25 4.2 100 Caring for a resident/client with Alzheimer's disease can be very stressful to the PCP because of aggressive or disruptive behaviors. Circle one=True or False 12 25 3.7 95.8 Important rules for TEAMWORK include all except: a. Help each other be right rather than wrong b. Maintain a positive mental attitude c. If in doubt, check it out and ask questions rather than make negative assumptions d. If it hasn’t worked in the past, it most likely will not work now 3 25 3.4 95.8 5Which of the following are not an example of nonverbal communication: a. Body language b. Facial expression c. Touch d. Talking on the phone 6 25 2.96 95.8 What is most important to remember when handling dirty or soiled linens to prevent the spread of infection? ________________________________ 17 24 4.3 95.7 List three ways that a resident/client could receive a skin tear. ___________ 35 24 3.5 95.7 Broken, chipped, or loose teeth will not affect how a person can chew food. Circle one=True or False 43 24 3.5 95.7 HIPAA stands for protected health information and you must keep it confidential. Circle one=True or False 11 24 4.5 91.7 Dehydration is a symptom in older people when they do not consume enough fluids and can result in concentrated urine output in residents/clients. Circle one=True or False 20 25 4.0 91.7 Proper body mechanics means that you protect the resident from falling. Circle one=True or False 33 25 4.0 91.7 The resident/client care plan is a document that clearly states the resident/client's problems and goals, however, the PCP has no input into that document and may not see it. Circle one=True or False 10 25 3.9 91.3 5 Items in red fall below a mean of 3 on importance or 50% or fewer respondents indicated a PCP should answer correctly. ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 17 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 18 Question Content Quest No N4 Mean Importance % Yes All of the following are true and correct procedures to perform when completing peri care except: a. Always clean the person from front to back b. Use a different side of the wiping cloth with each stroke c. Check for redness and irritation and if you see it, call the supervisor at the end of your shift d. Use a thin layer of barrier cream if you have been trained, there is a Doctor order, and you have been instructed to do so by your supervisor 37 25 4.2 87.5 The two basic types of communication are: a. Verbal and speaker b. Listener and nonverbal c. Verbal and nonverbal d. Verbal and message 5 25 3.3 87.5 A PCP's tone of voice does not influence how confused resident/client may respond to a new situation. Circle one = True or False 4 24 4.0 86.4 Shaving a resident/client with a straight razor, who is on blood thinners or is diabetic, is ok as long as the resident says so. Circle one=True or False 40 25 4.4 83.3 Low blood sugar or hypoglycemia can lead to a resident/client's death. Circle one=True or False 22 25 4.0 83.3 Oxygen can blow up and create a fire. Circle one=True or False 24 25 4.0 83.3 When dressing a resident/client with a weak or paralyzed arm, you would put the shirt on the strong arm first. Circle one=True or False 26 25 4.0 83.3 Gait belts are only used if the resident/client is taller or heavier than the PCP. Circle one=True or False 31 25 4.0 83.3 It is ok to perform an arm hook under a resident/client's armpit to pull then up in bed. Circle one=True or False 30 25 3.8 83.3 List two reasons why proper positioning in a bed or wheelchair is important. ____________________________________ 32 25 3.8 83.3 Aspiration means the resident/client has inhaled liquid or food and it can result in infections in the lungs and possibly death. Circle one=True or False 21 25 3.7 83.3 Effective communicators are good listeners. A good listener will do all of the following except: a. Maintain eye contact b. Change the subject to something they want to talk about c. Encourage residents to verbalize their concerns d. Give the speaker their full attention 7 25 3.4 83.3 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 18 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 19 Question Content Quest No N4 Mean Importance % Yes If a resident/client is refusing to shower/bath, it is ok to wait for the next scheduled bath/shower day to try again. Circle one=True or False 38 25 3.4 83.3 It is ok to clip toenails on diabetic residents/clients. Circle one=True or False 41 24 4.2 82.6 Placing a towel in the sink before brushing dentures is an important step to take to prevent breaking them. Circle one=True or False 42 24 3.5 82.6 Which arm does a resident/client hold a cane if they have right sided weakness? _________________________ 29 24 3.3 82.6 All of the following must be followed when providing basic care for a resident/client except: MC 27 18 3.6 82.4 Oxygen flow rate can be adjusted higher by the PCP, if resident/client is having difficulty breathing. Circle one=True or False 23 25 4.0 79.2 It is ok to cry uncontrollably in front of family members if you have taken cared of their loved one for a long period of time. Circle one=True or False 15 25 3.4 79.2 Communicating with the Resident/Client who has aphasia would include all of the following except: a. Face the resident/client and make eye contact before speaking b. Speak quickly and loudly c. Pause between sentences to allow time for the resident to respond d. Repeat what the resident/client says to keep her focused 9 25 3.7 75.0 List the main reason why looking at skin on a resident/client bony prominence during bathing or toileting is an important thing to do. __________________ 34 24 3.7 73.9 If a resident/client thinks it is 1942, it is your duty to reorient them to the current date. Circle one=True or False 39 24 3.7 73.9 Dysphagia means difficulty swallowing. Circle one=True or False 18 25 3.5 70.8 It is ok to massage reddened areas on the skin because it will make the resident/client feel better. Circle one=True or False 36 25 3.5 70.8 Describe what protective oversight means in a non-skilled setting. _______ 1 25 3.3 70.8 Stages of Dying include all of the following except: a. Denial b. Acceptance c. Bargaining d. Compromising 14 24 3.0 65.2 Side rails on the bed keep people from getting hurt and falling out of bed. Circle one=True or False 25 25 2.8 62.5 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 19 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 20 Question Content Quest No N4 Mean Importance % Yes A catastophic reaction is an emotional response to noise or a feeling of being overwhelmed. Circle one=True or False 13 24 3.0 60.9 Horizontal hostility effects the work place in all the following ways except: a. Poor employee satisfaction scores b. High turnover rates c. Great resident/client care d. Absenteeism 8 25 2.9 50.0 Contractures of joints are not permanent, they just need to exercise more. Circle one=True or False 28 24 3.0 45.5 When thickened liquids are required, they only require water to be thickened, not other liquids. Circle one=True or False 19 24 2.5 39.1 Looking at the 43 assessment items included on the April 2009 assessment, respondents gave the assessment items an average of 3.59 on importance with a minimum of 2.5 on importance for item 19 and a maximum of 4.5 on importance for item 16. Four items fell slightly below an average of 3 on importance: items 19, 25, 28, and 6. PRI also asked incumbents whether they would expect a PCP who performs at a minimally acceptable level to answer the question correctly. Only three items were rated as No by 50% or more incumbents: items 8, 19, and 28. These results suggest that incumbents recognize a relationship between the assessment items and the PCP job. There are consistencies between the job analysis survey and the assessment item survey supporting the reliability of the survey ratings. In the job analysis, KSAs rated as not important or as not applicable include the following: Knowledge of dealing with a resident with specialized feeding needs (i.e. difficulty swallowing, frequent aspiration, set-up, and specialized equipment); Knowledge of rehabilitation therapy for the elderly population; and Knowledge of side rail safety for the elderly population. Corresponding assessment items were also deemed less than important or were identified as items that a PCP should not answer correctly, such as When thickened liquids are required, they only require water to be thickened, not other liquids; Contractures of joints are not permanent, they just need to exercise more; and Side rails on the bed keep people from getting hurt and falling out of bed. Similarly, the most critical task from the job analysis was Perform infection control procedures at all times (washing hands, gloves), corresponding to one of the two assessment items that 100% of SMEs indicated a PCP should know: What is the single most important skill/action to prevent the spread of infection? Another task with high criticality ratings was Observe residents and their environments and report behavior, physical and / or cognitive changes and / or need for changes in living arrangements to shift manager, corresponding to the other assessment item that all SMEs indicated a PCP should know: Describe three resident/client care concerns that would be a reason to call the supervisor. ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 20 of 21 New Mercer Commons Personal Care Provider Training Assessment Content Validation New Mercer Commons PCP Training Assessment Content Validation 21 Cut-score. According to the Uniform Guidelines, section 15(c), cut-scores should be set so that they correspond to “Normal Expectations of Acceptable Proficiency in the Workplace”. Most methods of establishing cut-scores involve subject matter experts (SMEs) since an SME should understand expectations of acceptable proficiency. One option for a cut-score would be to identify the number of items that 50% or fewer SMEs would expect a PCP to answer correctly and allow assessment takers to miss the same number of items on the assessment. Using this option, PCP trainees could pass the training assessment if they missed no more than three questions. In this case, the cut-score for the PCP training assessment would be 40 / 43 (93%). If you also include the items rated as less than important (i.e., mean rating less than 3), PCP trainees could pass the training assessment if they miss no more than five assessment items. In this case, the cut-score would be 38 / 43 (88%). Another way to estimate the cut-score, a modified Angoff approach, is to calculate a cut-score based on the SME responses to whether a minimally acceptable PCP should answer each question correctly. Each survey respondent’s responses to this question across all assessment items provides a percentage of items that the respondent expects a PCP to answer correctly. The average across all respondents would represent the recommended cut-score. For each respondent, PRI calculated an expected assessment score based on the percentage of assessment items that the respondent indicated a PCP should answer correctly. For example, if a respondent indicated that a PCP should answer 70% of the assessment items correctly, the expected assessment score for a PCP would be 70%. Using this approach, the mean expected score across all respondents was 79.5 with a standard error of measurement (SEM) of .045. The cut-score can then be adjusted up or down by 1 or 2 SEM. In this case, the cut-score could range from 75 to 84 using 1 SEM or 70.5 to 88.5 using 2 SEM. Conclusion. Husch Blackwell retained PRI to conduct a content validation study of an assessment given to PCPs at New Mercer as part of a three-day training course. The study included a job analysis and an analysis of the relationship between the content of the job and the content of the assessment. The job analysis provided a list of tasks and KSAs deemed critical to the PCP job. The linkage exercise with New Mercer representatives and the survey of assessment items supports a relationship between the content of the job and the content of the April 2009 training assessment with justifiable cut-scores as low as 70% and as high as 93%. Lisa Harpe, PhD August 1, 2016 ATTACHMENT 1 Exhibit 6 Case 1:15-cv-01597-MSK-CBS Document 64-6 Filed 09/30/16 USDC Colorado Page 21 of 21