FRITO-LAY V. OFCCP: The case continues

by Art Gutman Ph.D., Professor, Florida Institute of Technology

We have written three prior alerts on this topic. To recap, being six months or more into its plan year, Frito-Lay sent data for the required 12 months (June 2006 through May 2007) consisting of applicant flow data for the annual plan and the required six months of update data (June 2007 through December 2007). After the desk audit, the OFCCP identified “adverse impact” in the supplied applicant flow data and, on November 10, 2009, requested that Frito-Lay supply more recent applicant and hire data from January 1, 2008 through October 31, 2009. As reported in an Alert on 7/30/10, Frito-Lay refused the latter request and ALJ Larry W. Price supported Frito-Lay’s appeal relating to the request for the additional data. Then, in an Alert dated 5/9/12, we reported on a motion for case closure on the case, a motion opposed by the OFCCP. However, as reported in an Alert on 5/16/12, shortly after the Frito-Lay motion was filed, the ARB reversed Price’s original ruling, thereby ordering Frito-Lay to supply the additional data.

Now comes the present case in which Frito-Lay, rather than supplying the additional data, has sued in federal district court to overturn the ARB ruling (Frito-Lay Inc. v. Solis, N.D. Tex., No. 12-01747, complaint filed 6/5/12). The text of the complaint may be viewed at

Briefly, there are six counts.

Count 1 is that the Final Order for additional data is “arbitrary and capricious, an abuse of discretion and not in accordance with law, contrary to constitutional right, and without observance of procedure required by law” under the Administrative Procedure Act (APA).

Count 2 is that in violation of the 5th Amendment, the Final Order is “Contrary to Agency Norms” in that the OFCCP is not empowered to act with discretion contrary to the Federal Contract Compliance Manual (FCCM).

Count 3 is that in violation of the 4th Amendment because (a) the request for additional data was not based on specific evidence of an existing violation or that (b) the request was not in accordance with reasonable legislative or administrative standards.

Count 4 is that in violation of the APA, the “ARB erroneously ruled in the Final Order that 41 C.F.R. § 60-1.26(b)(2) does not require the closure of a case when the ARB has failed to issue a final order within one year of either the ALJ‘s recommended decision or the submission of exceptions and responses to exceptions, whichever occurs first.”

Count 5 is that the OFCCP’s failure to delay in bringing the enforcement action is also a violation of the APA

Count 6 is that any potential discriminatory claims are time barred by Title VII, the APA, and/or agency regulations (C.F.R. § 60-1.21).

In response to these counts, Frito-Lay requests the following six remedies.

(1) Judgment for Frito-Lay and against Defendants

(2) To hold unlawful and set aside the Final Order pursuant to 5 U.S.C. § 706 as arbitrary and capricious, an abuse of discretion and not in accordance with law, contrary to constitutional right, without observance of procedure required by law, and not supported by substantial evidence

(3) To hold that any alleged discriminatory hiring decisions during the time period covered by the 2005-2007 and/or 2008-2009 data requests are time-barred, rendering OFCCP‘s data requests irrelevant and moot

(4) To hold that OFCCP‘s data request violates the Fourth and Fifth Amendment of the United States Constitution

(5) To award Frito-Lay its costs and reasonable attorneys‘ fees, in accordance with the governing law

(6) To grant Frito-Lay such other and further relief as may be necessary and appropriate or as the Court deems just and proper under the circumstances.

And so the saga continues --- stay tuned.

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