Administrative Law Judge Richard M. Clark issued another order in the administrative action brought by the Office of Federal Contract Compliance Programs against Oracle. We have previously posted about pre-trial orders in this matter here and here. 

This time, the ALJ denied the agency's motion for partial summary judgment. Oracle had raised a number of defenses that were premised on the OFCCP's alleged failure to conciliate, and the OFCCP had asked the ALJ to dismiss those defenses. Because it was a motion for summary judgment and because the OFCCP had filed the motion, the ALJ had to construe all disputed facts in favor of Oracle. In doing so, the ALJ found that a reasonable person could conclude that the OFCCP failed to engage in "reasonable efforts" to resolve the matter with Oracle, as required by the regulations.

The ALJ expressly noted that he was not finding that the OFCCP had not engaged in reasonable efforts to conciliate, but could not definitively conclude that it had. According to the order,

“a reasonable fact-finder could conclude that OFCCP gave only general indications of the violations and steadfastly refused to provide basis or explanation of its allegations. It required Oracle to somehow rebut the allegations, but unilaterally declared most points (such as errors in OFCCP's evidence/analysis, OFCCP's procedural improprieties, and alleged misunderstandings of Oracle's compensation scheme) off the table. A reasonable fact-finder could conclude that OFCCP's rebuttal requirement, which was at times made a condition of conciliation, was impossible to fulfill since Oracle was not permitted to know anything about the basis for the conclusory allegations OFCCP levied. A reasonable fact-finder could conclude that OFCCP ignored Oracle's arguments and provided non-answers to its questions, relying on an artificial rebuttal burden that Oracle could not possibly have met to prevent conciliation from proceeding. Moreover, a reasonable fact-finder could conclude that OFCCP never defined what Oracle had to do to come into compliance.  

(Emphasis in original.)

In summary, the ALJ said,

“the evidence viewed in a light most favorable to Oracle would indicate that OFCCP failed to clearly state the violation, allow the contractor to understand the basis for the violation, provide any sense of how to remedy the alleged violation, or make any offer that could possibly resolve the only generally stated violations premised on secret evidence, methods, and legal theories. . . . A reasonable factfinder could determine that a failure to explain the alleged misconduct or produce any basis for assertions of massive wrongdoing coupled with no presentation of a manner in which the alleged violation could be remedied would not constitute "reasonable efforts" at conciliation.

The OFCCP's actions (or inactions) regarding conciliation with Oracle occurred before the agency issued its transparency Directive. This Directive, issued in September 2018, provides that, when it comes to conciliating alleged violations, the OFCCP will share information and data with contractors “to assist the contractor in understanding and replicating OFCCP’s findings, sharing factors used to calculate back pay,” and providing other evidence on which the finding is premised. 

Hopefully, the next contractor won't face the same obstacles that Oracle faced when attempting conciliation with the agency.