Rebuttal To Draft Report (06!29!2012)

4039 21st Avenue West Suite SSSS
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Uni ver si t y Li nk Li ght Rai l TBM Tunnel UWS t o CHS Li nk
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Rebuttal to Draft Summary Investigative Report
The draft Summary Investigative Report (Draft Report) sets forth three conclusions: (i) the allegedly
subjective hiring and firing processes used by Traylor Frontier-Kemper Joint Venture (TFK) have a
disparate impact on African American laborers; (ii) there is sufficient evidence to support the claims of
race discrimination made by two of the complainants; and (iii) there is evidence that women were
discriminated against on the basis of gender. None of these conclusions is supported by the record or
the applicable law.
1
i. FAILURE TO ADDRESS CENTRAL ISSUE: The Draft Report does not address the central
issue, which is whether the primary reason certain African American laborers have been
rejected or removed is their race as opposed to their work qualifications or performance.
Instead, the Draft Report presumes that all dispatched laborers were qualified and
performed satisfactorily. In doing so, it presumes what, in actuality, must be, and
cannot be, proved and ignores the contrary information and documentation submitted
by TFK. The latter evidence shows, among other things, that TFK has principally rejected
or removed only those laborers who were dispatched to perform highly-specialized and
dangerous work as Group VI Tunnel Miners, the unavailability of qualified personnel at
that level has been a well-documented problem throughout the project, and the
deployment or retention of unqualified or under-performing laborers at that level
creates intolerable safety risks.
More specifically, the Draft Report is fundamentally flawed for five basic reasons:

ii. FAILURE TO ADDRESS AND APPLY LEGAL STANDARDS: The Draft Report does not
address the applicable legal standards, but rather sets forth conclusions which do not
withstand scrutiny when the requisite legal analysis is applied. At a minimum, that
analysis requires critical examination of the very point the Draft Report presumes, i.e.,
whether the Laborers who were rejected were qualified for the Group VI Tunnel Miner
positions they were denied, and whether those who were removed were performing
satisfactorily. Applicable law also places the burden of proof on the complainant to
prove discrimination has occurred, not on the employer to disprove it. This means that
once the employer has stated the legitimate reasons for the decisions or processes
under review, there can be a finding of discrimination only if the evidence shows those
reasons are a pretext. There is no such evidence or analysis in the Draft Report. The
Draft Reports presumption of Laborer qualification is tantamount to a presumption of
TFK discrimination. That is inappropriate under the governing legal standards.

1
TFK principally focuses on the allegations of race discrimination because they are the specific (in fact, only)
dimension of the Draft Report to which Sound Transit specifically requested a response. (See April 13, 2012
correspondence from James Niemer, Sound Transits Senior Legal Counsel.)

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iii. RELIANCE ON INCOMPLETE STATISTICAL ANALYSIS: Statistical analysis undermines,
rather than supports, the Draft Report. This point relates to point ii, above, because the
flaws in the Draft Reports statistical analysis are particularly evident only when the
applicable legal standards (currently absent from the report) are applied. For example,
well-settled law requires that a disparate impact claim rest on proof of statistical
disparities that (a) establish causation between race and adverse outcome, which (b)
requires the analysis to account for other major variables/potential causes, such as
qualifications, performance and position. The statistical analysis in the Draft Report
does neither. It groups all Laborers together, without regard to position or skill set,
reports a correlation between race and outcome, and candidly acknowledges that the
correlation is not proof of causation because it does not consider any other variables:
[The] only potentially causative factor studied is ethnicity. Qualifications and other
factors were not considered. (Emphasis added.) Instead, the statistical analysis
adopts the same improper presumption of laborer qualification and performance noted
above. With this response, TFK offers a more specific analysis, which shows that there is
no correlation between race and outcome in the context of any position other than
Group VI Tunnel Miner work. This finding undermines any inference of discrimination,
intentional or not. If TFK discriminates against African American workers, which it does
not, one would reasonably expect that bias to manifest itself across all (or at least most)
job categories, not be isolated to one. One would also expect the bias to exist across
different TFK projects, but, again, it does not; analysis of TFKs hiring and firing decisions
in two recent projects in Los Angeles, for instance, shows no correlation between race
and adverse outcome. That the correlation here is limited to the single category of a
Group VI Tunnel Miner in the context of a unique project squares with the undisputed
fact that TFK and Local 440 have had great difficulty locating laborers with that level of
experience and expertise. That dynamic, not race, explains the correlation.

iv. CONCLUSORY ASSERTIONS AND IRRELEVANT/BASELESS OPINIONS: The Draft Report
rests on a patchwork of conclusory assertions and opinions, labeled as anecdotal
evidence, that are variously inconsistent with applicable law, contradicted by specific
facts, and unsubstantiated. For example, it characterizes the statement that a particular
African American worker was an accident waiting to happen as a euphemism for race,
rather than an expression of concern for safety, then acknowledges that TFK personnel
have used the same phrase to describe Caucasian laborers; it contends that TFK
breached its own policies by not providing progressive discipline, when those policies
clearly state that progressive discipline is not required and discharge may be immediate,
and it is undisputed that TFK has discharged a large number of Caucasian laborers

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without providing progressive discipline; it accuses TFK of hiring one African American
laborer only to perform custodial work, then adds that [t]he employee prefers
custodial work to tunnel work.

v. DISREGARD OF EVIDENCE SUPPORTING TFK: Finally, the Draft Report ignores much
anecdotal evidence that further dispels any inference of pretext for discrimination. For
example, the genuineness of TFKs emphasis on safety is tied directly to its contract,
which requires that TFK maintain a safe worksite and reject or remove unfit
personnel. That same contract provides financial reward for early completion of work,
which, when coupled with the scarcity of Group VI Tunnel Miners, makes clear that TFK
had (and has) no incentive to turn away any qualified Laborer, regardless of his or her
race. Further, almost without exception, the same persons who made the hiring
decisions made the firing decisions, which, of course, begs the question, why would they
fire laborers because of their race after hiring them with knowledge of their race?
Stripped of these defects, each of which is addressed below, the record shows that no worker has been
denied or removed from employment based on anything other than a good faith judgment as to his or
her qualifications or performance and an overarching concern for safety. TFK has met both its legal
obligations and the still higher standards associated with the privilege of serving as a contractor on the
Sound Transit U220 project.
1. The Draft Report Does Not Address The Central Issue
TFK only rejected or discharged Laborers who, in its judgment, did not possess the qualifications, skills or
experience to safely and satisfactorily perform the necessary work. These two factorsqualifications
and safetyare the bases for the decisions under review. Throughout this tunneling project, the
inability of Local 440 to dispatch a sufficient volume of qualified personnel has been a well-documented
issue. The Draft Report fails to meaningfully consider these facts. Instead, at page 7, it states that all
dispatched Laborers are presumed to be qualified. The Draft Report presumes away the very issue it
is supposed to analyze. In the process, it ignores a large volume of information and documents that
defeat the very presumption it adopts, including the following.
Sound Transit awarded TFK Contract No. RTA/LR 001-09 to construct tunnels utilizing tunnel boring
machines (TBMs) between two planned transit stations located near the University of Washington and
on Capitol Hill, respectively. The project involves (i) the construction of 11,400-foot long, segmentally-
lined, twin-bored tunnels using pressurized face techniques, and (ii) the excavation of 16 cross-passages
at various intervals between the bored tunnels using sequential excavation methods.
In early January, 2010, TFKs physical work commenced. The skill set required of the Laborers changed
as work progressed. By the fourth quarter of 2010, the nature of the work began to shift from

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supporting subcontractors to directly performing TFKs own scope(s) of work. By the fourth quarter of
the following year, TFKs scope of work had progressed to cross-passage excavation. These were two
fairly distinct development stages. For some trades, each of these new stages in the work required
different or additional skills. For example, journeymen members of the Carpenters Local had to be
replaced by Journeymen Carpenters with certified welding certificates, and Journeymen Laborers had to
be upgraded from General Laborers (Group III) to Miners (Groups V and VI). The latter escalation of
qualifications was necessary because the then-next phase in the project required a particular skill set,
which included, for example, open-ground, hand excavation experience and shotcrete experience in
both vertical and horizontal overhead planes.
TFK notified Local 440 of these requirements and directed it to dispatch Laborers accordingly. Notice
was provided orally and in writing. The latter included a Dispatch Request form, which specifically
identified the heightened requirements. Copies are attached as Exhibit A. (A copy was previously
provided to the investigator, though it is neither mentioned nor discussed in the Draft Report.) The
oral notices included a meeting held on December 14, 2010 among representatives of TFK and Local
440. Through these and similar efforts, TFK clearly advised Local 440 that it needed Laborers who
possessed the following types of experience and skill:
o Mine phone operation
o Confined space operations
o Cutting and welding operations
o Dewatering pump installations
o Grout work including mixing, pumping, and clean up
o Waterproofing placing and welding
o Pipe installation and testing
o Rigging and signaling
o Timber and re-timber work
o Tugger operation
o Airtrack operation and drilling
o Diamond drill operation
o Shotcrete work, nozzleman and pump operation
o Track and switch work
o Compressed air (hyperbaric) work
o Air tool operations including chipper, breaker/jackhammer, jack legs, drills, rivet buster
o EPB tunnel boring machine work including segment transport and erection, backfill grouting,
cutterhead tool changing (including disk cutters weighing 350 lb), rail laying, utility
installation, continuous conveyor belt structure installation, and locomotive operations
o Sequential excavation work including spile installation, hand mining and support, shotcrete
work including placing and troweling, vacuum well installation
o Tunnel concrete work including cleaning preparations, setting reinforcing steel, pumping,
screeding, spreading, finishing, and setting and stripping steel and wood forms


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Local 440 had (and continues to have) difficulty locating and dispatching Laborers who meet these
legitimate, job-related requirements. This is fact, not criticism. The type of tunneling and excavation
involved in the Sound Transit project is highly specialized work that has not been regularly performed in
the recent past in the greater Puget Sound region. The local pool of Laborers with Group V Miner
and/or Group VI Tunnel Miner skills and experience is relatively shallow compared to other parts of the
country. In stretching to meet TFKs needs, Local 440 has dispatched many Laborersminority and
non-minority, male and femalewhom TFK quickly discovered were not qualified. These workers,
regardless of race or gender, were turned around when the deficit became evident upon dispatch, or
discharged when it surfaced later through performance.
2
In this line of work, TFK cannot (and will not) accept poor performance or unqualified workers because
they jeopardize safety, which is a paramount concern. Underground excavation and tunneling occur in
an extraordinarily demanding environment, one that is unfamiliar, tight, dark, dank, artificially
ventilated, and at times unstable. A 35-ton locomotive regularly transports people and materials in and
out of the tunnel. The work involves the regular use of heavy machinery, and requires all employees,
including Laborers, to work together closely.

3
Against this backdrop, the number of unqualified Laborers being dispatched by Local 440 was troubling.
TFK could not presume that dispatched Laborers were qualified and immediately deploy them. It also is
more difficult and disruptive to remove an unqualified Laborer from the worksite rather than not deploy
Each must depend greatly on the others. Poor
performance and unsafe practices by one threaten the safety of all. And the potential consequences are
severe, not mere cuts and bruises, but major trauma, concussions, broken bones, loss of limbs, and even
death. TFK is responsible for making every reasonable effort to prevent these outcomes, and to
otherwise maintain the safety and well-being of all persons under its charge. Meeting this responsibility
requires TFK to act early, and to take precautions and preventive measures when possible, rather than
merely react after workers already have been injured. At an absolute minimum, it requires TFK to make
good faith judgments regarding the qualifications of Laborers before placing them in the tunnel and
potentially in harms way; to require strict adherence to protocol once deployed; and to act swiftly and
decisively if a Laborer who passed initial review subsequently performs poorly. These realities are
reflected in TFKs contract. Article 2, Section 2.02 sets forth its responsibilities as Contractor. These
include that TFK shall enforce strict discipline and good order among [our] employees at all times and
shall not employ on the Work any unfit person or anyone not skilled in the task assigned to him or her.
Of course, TFK also is subject to multiple safety rules and obligations, and corresponding regulatory
oversight and enforcement, under federal, state and local law.

2
The lack of qualifications and poor performance of these workers casts no shadow over the rest of the workforce.
The other Laborers and personnel have performed admirably. TFK recognizes, and is grateful for, their individual
and collective contributions to the success of this project. Nothing in this document should be construed to
suggest anything to the contrary.
3
The investigator never toured the full extent of the tunnel work sites.

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him or her in the first place. By that time, for example, the company already has gone through the
effort, and incurred the expense, of orienting, scheduling, drug testing, introducing and generally
integrating the worker. Consequently, beginning in roughly late December, 2010, TFK implemented a
post-dispatch, pre-deployment interview process to facilitate a more accurate, early assessment of
whether the Laborers dispatched as Group V Miners or Group VI Tunnel Miners truly possess the
requisite skills and experience. The process involves two steps. The Laborer completes a pre-printed
form, indicating which among a laundry list of desired and/or required skills the laborer believes he or
she possesses. That self-assessment, including the specific listed skills, then becomes the springboard
for an interview to further assess qualifications. A sample checklist is attached as Exhibit B. (All of the
completed checklists were made available to the investigator.)
Even with this reasonable mechanism in place, Local 440 continued to dispatch unqualified Laborers
making it difficult for TFK to maintain adequate staffing. By letters dated September 19, 2011, January
5, 2012, January 9, 2012, and February 2, 2012, TFK raised these issues with Local 440 and the Seattle
Tunnel and Rail Team. Copies of these letters are attached as Exhibits C-F, respectively, and were
previously provided to the investigator, though they are not mentioned in the Draft Report. TFKs
September 19, 2011 correspondence addressed a specific situation where Local 440 was unable to
satisfy a call for three Group VI Tunnel Miners. The January 5 and 9, 2012, letters discussed the general,
on-going unavailability of qualified Group VI Tunnel Miners and cited a specific circumstance on
December 23, 2011, where Local 440 was unable to satisfy a call for 20 Miners, specifically 15 Group VI
Miners and five Shifters. Local 440 was able to supply only eight Group VI Tunnel Miners, less than half
the number necessary at the time, together with one Apprentice and two Shifters. To make matters
worse, several of those dispatched were not, in fact, qualified. Both letters noted that, due to the
persistent unavailability of qualified personnel, TFK likely soon would find it necessary to submit a
request for a time extension, an equitable adjustment in Contract price, and/or extended overhead
costs. The February 2, 2012, letter was in follow-up to TFKs January correspondence. It noted that by
that date, roughly six weeks since the December 23, 2011, call for 20 qualified Group VI Tunnel Miners
and Shifters, less than 20% ha[d] been dispatched. It repeated that not having the required
workforce to complete the cross-passage work will impact our critical path schedule as well our cost.
In addition to repeatedly pressing Local 440, TFK undertook other steps to try to locate the necessary
number of qualified personnel. These included having Local 440 issue a national call for certified
shotcrete hands (which remains in place to this day); assuming the full cost of having Laborers re-
certified through the American Concrete Institute; implementing a program to self-certify shotcrete
Laborers in an effort to avoid the delay of that traditional certification process; contacting unions and
locals in Sacramento, Los Angeles, and San Diego regarding qualified Laborers who might be interested
in this project; recruiting and/or requesting specific Laborers, including at least one woman and one
African American (who was hired as a Foreman and remains in TFKs employ to this day); and
approaching Sound Transit regarding the problem. See Exhibit G, email of January 6, 2012. Local 440

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undertook remedial steps, as well. For example, effective January, 2011, Local 440 created the Group VI
Tunnel Miner category (Group V Miner previously had been the highest level) and tied it directly to the
attainment of additional training, which Local 440 financed by way of a small surcharge applied to the
hourly rates of its members.
This is the larger context within which (out of hundreds of workers employed on this project) six
Laborers filed complaints of discrimination with the EEOC. Five alleged race discrimination and one
alleged gender discrimination. None of these complainants was turned around at the interview stage.
Fully aware of their race and gender, TFK hired all of them. In response to each charge, TFK submitted
detailed position statements, supported by contemporaneous documentation. These submissions
explained the reasons for each decision under challenge and set forth additional facts that further
dispelled any inference of discrimination. TFK provided these submissions to the investigator for her
review. Read together, they are central to TFKs position. Yet, they are ignored in the Draft Report (and,
therefore, presumably in the underlying investigation, as well). In fact, the Draft Report contains a
single reference to the responses, which is found at page 5. Remarkably, that reference makes no
mention of the abundance of information in those responses, but instead dismissively notes one piece
of information allegedly absent from them: the EEOC responses prepared by TFK for 4 of the 6 EEOC
complainants did not reference formal discipline. It is disappointing that the Draft Report finds this
single data point, which is not even relevant, to be the only piece of information worthy of mention.
Copies of TFKs responses, with the names of the complainants redacted, are attached hereto as Exhibits
H-L. Here, TFK summarizes the information in them.
4
Complainant A, an African American, was dispatched and hired on or about June 2,
2011, as a Group V Miner. He was assigned to the graveyard shift as part of a four-
person crew (two Caucasians, one person of Hispanic descent, and Complainant A). He
performed poorly. TFK repeatedly counseled and warned him, stressing the importance
of him being able to pull his weight and work as part of a team, particularly from a
safety perspective. After another complaint from a crew member, TFK moved him to the
day shift and had the Local 440 business agent speak to him about his performance and
level of motivation. He continued to perform poorly, prompting more complaints from
co-workers. On July 8, 2011, after four weeks of effort by TFK and opportunity for
Complainant A, TFK discharged him.

Complainant B, an African American, was dispatched and hired on or about July 28,
2011. TFK assigned him to a tunnel conveyor. On at least two occasions, a fellow crew
member observed him place his hand on the moving conveyor belt. TFK admonished

4
TFK has not included copies of all of the exhibits to each response simply because of their volume. However,
these supporting documents certainly will be made available upon Sound Transits request.

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him and explained that he was risking serious injury. Over the next week, TFK counseled
and warned him additional times for unsafe behavior. The crew member who had
reported that Complainant B was attempting to hold or grip the conveyor belt finally
told the crew supervisor that Complainant B was an accident waiting to happen, and
he could no longer work with him. TFK assigned Complainant B to a different crew.
Problems continued. At times, his work was so poor the crew had to re-do it. In a
further attempt to retain him, TFK next assigned him to a two-person crew that was
responsible for attaching clips to the bag-line for ventilation. Complainant Bs specific
task was to keep a look out for the locomotive and warn the second crew member
when it was coming. Twice he failed to do so. On August 19, 2011, after nearly four
weeks of effort by TFK, several complaints and two reassignments, TFK discharged
Complainant B.
Complainant C, an African American, was hired in December, 2010, as a Group V Miner
reporting to an African American foreman. He lasted four days. He was assigned to a
13-person crew, which included one Hispanic laborer, two African Americans, one Asian
American, and one Native American. Two co-workers complained that he was not
performing his share of the work and asked not to have to continue working with him.
The crew supervisor observed him take an inordinate amount of time to complete tasks;
on two occasions, he was slowed in part because he had misplaced his tool belt. On or
about December 30, TFK discharged him.
Complainant D, an African American, was dispatched and hired on or about November
10, 2010 as a Group III General Laborer. TFK assigned him to a 16-person crew, which
included two other persons of color. He performed satisfactorily. On or about
December 8, 2010, TFK discharged him as a part of a larger reduction in force, because
the project had progressed to a stage requiring Group V Miner and Group VI Tunnel
Miner skills and experience, which he did not possess.
Complainant E, an African American, was one of five Group V Miners who were
dispatched on or about July 8, 2011. TFK had specifically requested miners who had
verified shotcrete experience. Only two did. Complainant E acknowledged he had only
vertical, but no horizontal, shotcrete experience. TFK hired him anyway. It assigned him
to an eight-person crew on the graveyard shift. The other crew members included three
Caucasians, one Native American and three laborers of Hispanic descent. To his
supervisors observation, Complainant E spent a great deal of time lobbying for a
shotcrete position to the detriment of his actual assignment. At the time, walkways had
not yet been installed in the tunnels. One day, TFK announced no foot traffic was
allowed in the tunnel, because the thirty-five ton locomotive with limited visibility

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would be traveling through it. This presented significant risk of substantial harm to
anyone on the tracks. A worker on another project in Seattle, with a different
contractor, had been killed under similar circumstances. Complainant E violated the
directive, walking out of the tunnel (to use the restroom) and then walking back into it.
He acknowledged he understood the directive and did not know the location of the
locomotive. This reflected an unacceptable disregard for safety. On or about July 20,
2011, TFK discharged him.
Again, none of this detail is addressed in the Draft Report.
2. The Draft Report Contains No Legal Analysis.
The applicable legal standards also are ignored in the Draft Report.
5
The Draft Report references three
theories, namely, hostile work environment, disparate treatment, and disparate impact. It concludes
(correctly) that there is no evidence of a hostile environment.
6
A disparate impact claim challenges employment practices that are facially neutral in their treatment of
different groups but that fall more harshly on one group than another and cannot be justified by
business necessity. Intl Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977). It
requires proof that a specific employment practice has caused a disproportionately adverse impact on a
protected group, and the causal connection rests on the protected trait. Wards Cove Packing Co., Inc. v.
Antonio, 490 U.S. 642, 656-658 (1989). It does not require evidence of an actual intent to discriminate.
Id. It focuses on effects, not intentions. By contrast, disparate treatment claims require proof by a
preponderance of the evidence that a protected trait was a substantial or motivating factor behind the
decision being challenged. Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). They require
evidence that the decision-makers are, in fact, biased against persons who have the protected trait. Id.
That leaves disparate treatment and
disparate impact. The Draft Report concludes that TFKs hiring and firing processes have a disparate
impact on laborers based on race, and that there was sufficient evidence to support the claims of race
discrimination by two of the complainants. TFK addresses the legal principles behind each of these
theories here, and applies them in the sections that follow.

5
This is another significant omission. The Draft Report is essentially a legal document, was prepared by an
investigator who is a lawyer, addresses alleged violation of legal rights, and presents controlling issues that are
legal in nature. Those issues are not to be addressed in a vacuum or against the protean concept of fairness. Its
disposition is governed by well-settled legal principles, which should be identified and discussed.
6
At page 5, the Draft Report refers to the potential existence of a pattern of discrimination against African
American workers. If the word pattern is intended to refer to the pattern or practice legal theory, it is
misplaced. Circuit courts have consistently concluded that the pattern-or-practice method of proof of
discrimination under Title VII is not available in private, non-class action lawsuits. Walech v. Target Corporation,
2012 WL 1068068 (W.D.Wash.).

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Both claims involve a so-called shifting burdens analysis. In the context of a disparate treatment claim,
the complainant must first establish a prima facie case through evidence that he or she is a member of a
protected group, was qualified for a particular position or was performing it satisfactorily, and
nevertheless was rejected or removed under circumstances that give rise to a reasonable inference that
the protected trait was a substantial or motivating factor behind the decision. Id. If the complainant
satisfies this burden, the burden of production, not persuasion, shifts to the employer. Its burden is
satisfied if it simply explains what [it] has done or produces evidence of legitimate non-discriminatory
reasons. Texas Dept of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981). To establish a valid claim,
the complainant must then prove that the employers stated reasons are a pretext for unlawful
discrimination. Id.
Similarly, in the context of a disparate impact analysis, the complainants must first establish a prima
facie case via proof of the elements described above. If a prima facie case is established, the employer
nevertheless prevails if it shows that the challenged practice is supported by business necessity.
Watson, 487 U.S. at 997-999. This does not require proof that the challenged practice is essential or
indispensable, only that it serves, in a significant way, the legitimate employment goals of the
employer. Wards Cove Packing, 490 U.S. at 659-661. If the employer meets this burden, the
complainant then must prove the existence of an alternative selection device that is equally effective for
the employers stated purposes but that does not disproportionately impact the protected group. Id.
That evidence, if produced, is tantamount to demonstrating that the employers test was a pretext for
discrimination. Id.
Under both theories, the burden of proof always remains with the complainant. Both theories require
comprehensive, fact-specific analyses which reject conclusory assertions in favor of rigorous
examination of the evidence, principally the facts supporting the employers stated reasons for its
actions, on the one hand, and the complainants evidence of pretext, on the other. This is precisely the
depth of review that is conspicuously absent from the Draft Report. Once conducted, it is clear there is
no viable claim under either theory because discrimination has not occurred.
3. The Statistical Analysis Only Considers Race

The statistical evidence in the Draft Report is offered in connection with both theories, particularly
disparate impact, but it supports neither. Review of that evidence begins with the premise that
statistics are to be approached with caution, given their inherently slippery nature, Wilkins v.
University of Houston, 654 F.2d 388 (5
th
Cir. 1981), and the vitally important fact that statistically
significant results are not necessarily legally significant results, Gay v. Waiters & Dairy Lunchmens
Union, 694 F.2d 531, 553 (9
th
Cir. 1982). The latter distinction is important because statistics
demonstrating that chance is not the more likely explanation are not by themselves sufficient to

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demonstrate that race is the more likely explanation. Id. (Emphasis in original.) As the Supreme Court
explains:

It is completely unrealistic to assume that unlawful discrimination is the sole cause of
people failing to gravitate to jobs and employers in accord with the laws of chance. It
would be equally unrealistic to suppose that employers can eliminate, or discover or
explain, the myriad of innocent causes that may lead to statistical imbalances in the
composition of their work forces.

Watson, 487 U.S. at 992. The Supreme Court further cautions that statistics are not irrefutable; they
come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their
usefulness depends on all the surrounding facts and circumstances. Intl Bhd. Of Teamsters, 431 U.S. at
340. Consequently, the complainants burden in establishing a prima facie case goes beyond the need
to show that there are statistical disparities in the employers workforce. Watson, 487 U.S. at 992.
Rather, as noted above, [c]ausation must be proved, which means that the disparities must be of a
kind and degree sufficient to show that the practice in question has caused the exclusion of applicants
for jobs or promotions because of their membership in a protected group. Id. The evidence must also
isolate and identify the specific practice that is responsible for the disparate impact and must do more
than merely point to a generalized policy that leads to such impact. Smith v. City of Jackson, 544 U.S.
228, 241 (2005). This burden is not a trivial one and serves to avoid holding employers liable for the
myriad of innocent causes that may lead to statistical imbalances. Meachum v. Knolls Atomic Power
Lab., 554 U.S. 84 (2008). And, of course, the data upon which the statistics rest must be reliable.

The statistical evidence upon which the Draft Report relies falls short of these standards. It reports
some correlation between race and adverse outcome (i.e., turn around or discharge), but nothing more.
It makes no effort to determine the likely causes of that correlation. The actual statistical report on
which the Draft Report relies concludes by squarely acknowledging this fact:

A limitation of the study is that the only potentially causative factor studied is ethnicity.
Qualifications and other factors were not considered.

Instead, the statistical analysis makes the same baseless presumption that anchors the larger Draft
Report, which is that all dispatched Laborers were qualified and performed well. As noted above,
disparate impact claims require evidence of causation, not just correlation. This requirement makes
sense in order to avoid the logical fallacy of assuming that correlation necessarily implies causation.
Proof causation, in turn, requires that the analysis take into account the major variables, which, here,
include position, qualifications and performance. As the Supreme Court has explained, statistics based
on an applicant pool containing individuals lacking minimal qualifications for the job would be of little

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probative value. Watson, 487 U.S. at 996. Absent additional analysis, the correlation that appears in
the Draft Report is of little legal significance. See, e.g., Guz v. Bechtel National, Inc., 24 Cal. 4
th
317, 369
(2000) (Any inference that Guzs raw age comparisons indicate age-based discrimination is further
blurred by the weak evidence that the workers retained or hired over him were similar or comparable
except for their dates of birth); Bickerstaff v. Vassar College, 196 F.3d 435, 449 (2d Cir. 1999) (in context
of race and gender discrimination claims, regression analysis inadmissible because it omitted the major
variables, including experience and performance); EEOC v. Sears, Roebuck & Co., 628 F.Supp. 1264
(N.D.Ill. 1986), affd, 839 F.2d 302 (7
th
Cir. 1988), cert. denied, 111 S.Ct. 370 (1990)(statistical analysis of
promotion decisions in gender case flawed because rests on unproven assumption of no differences in
interests and qualifications of men and women); Stockwell v. City and County of San Francisco, 2011 WL
4803505 (N.D.Cal.)(rejecting statistical analysis in support of class certification of age discrimination
challenge to promotion practices because it failed to address potential independent variables including
test scores, job performance, seniority and experience); Valentino v. United States Postal Service, 511
F.Supp. 917 (D.D.C. 1981)(rejecting analysis in gender discrimination promotion case because made no
effort to capture other relevant factors such as occupation, age, time in level, etc.).
7

The statistical analysis referenced in the Draft Report also fails to distinguish between job categories.
TFK retained a statistician to go that step further. A copy of his full report is attached as Exhibit M. He
categorized the workers among four groups, specifically, Apprentices, Groups III and IV, Group V, and
Group VI. Within the Apprentices category and Groups III and IV, there is no correlation between race
and discharge at all. Within Group V, there is a modest correlation, but under the most commonly used
measure it is not statistically significant. Only within the category of Group VI Tunnel Miners is there a
statistically significant correlation.

These findings are inconsistent with the conclusions in the Draft Report. One would reasonably expect
any institutional bias or disparate impact to manifest itself across all labor groups. But that has not
occurred. Instead, the statistical anomaly is specific to Laborers classified or dispatched as Group VI
Tunnel Minters, which is consistent with TFKs claim that it has had particular difficulty locating qualified
workers at that level. Other data are consistent with that claim, as well. For example, nearly 90% of all
Laborers TFK dismissed for performance issues fall within Groups V and VI, again, precisely the levels
where the other evidence shows qualified personnel were fewer in number.

7
To be clear, TFK does not contend that the statistical analysis must account for every conceivable variable; that
clearly is contrary to applicable law. Bozemore v. Friday, 478 U.S. 385, 400 (1986). But it must account for the
major variables, which it does not. As a practical matter, doing so may not be possible. The primary variable in
question is the qualifications of the Laborers. To the extent those qualifications are not definitively established
through concrete, readily verifiable means, such as the possession of a specific degree, they do not lend
themselves to numerical analysis. That is the situation here. Other than the shotcrete certification, Group V Miner
and VI Tunnel Miner status are not conferred through the completion of a specific program or curriculum or the
issuance of a certificate or diploma.

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The statistical scales tip further in TFKs favor when one considers data from two projects recently
completed in Los Angeles, specifically the Northeast Interceptor Sewer Tunnel and the Metro Goldline
Eastside Extension for LA Metro. These projects were overseen by essentially the same management
team handling the Sound Transit project for TFK, specifically including Superintendent Dore. The data
from these projects show no correlation between race and adverse outcomes. In fact, they show the
opposite. Relative to their Caucasian counterparts, African American workers worked more total hours,
were less likely to work fewer than 200 hours, and were more likely to be retained for the second
project after concluding the first. Again, it defies logic that the same management team would
discriminate against Laborers based on race on one project, but not two others.

The data from the LA projects also provide further support for TFKs claim that it has had difficulty
recruiting qualified Group VI personnel in the Puget Sound area. As the statistician explains:

Overall, worker outcomes on the LA jobs differ substantially from the outcomes
observed in Seattle. First, zero workers were turned around at the LA jobs. Second,
relatively few workers appear to have been terminated due to their inability to perform.
As noted before, approximately 30 percent of laborers dispatched in Seattle were
turned around or terminated for reasons related to individual performance, and the vast
majority of these terminations occurred within 40 days of orientation. In total,
approximately one-third of dispatched laborers worked fewer than 200 total hours.
These facts further corroborate TFKs claim that they faced great and unusual difficulties
obtaining qualified laborers in Seattle, and these facts provide support for one of the
key assumptions underlying this analysisthat the distribution of skills and
qualifications among the dispatched workers from the relevant unions differ across
cities.

Ward Report at p. 15.

Applying commonsense to these findings dictates one conclusion, no discrimination. What is more
likely? That, as the Draft Report suggests, for some inexplicable reason TFK only discriminates against
African Americans who are Laborers at Group VI Tunnel Miners in Seattle, while willingly employing
them in all other Groups, in all other positions and trades, and all other parts of the country? Or that, as
TFK contends (and has shown), it has had difficulty locating African Americans (and Caucasians, for that
matter) who are experienced or qualified Group VI Miners? Clearly, the answer is the latter.
8

8
The experience of Laborers at the Capitol Hill site does not change the analysis. As explained in more detail in the
attached statistical analysis (see pages 12-13), the Draft Reports reliance on that subject rests on assumptions that
do not withstand scrutiny. These assumptions include that relative to the University of Washington site, the


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For all these reasons, the isolated correlation between race and adverse outcome set forth in the Draft
Report fails to establish even a prima facie disparate impact claim. And it has even less significance in
the context of the two disparate treatment claims. The question whether the facts proved are
sufficient to permit a legal inference of discriminatory intent cannot properly be reduced into a mere
battle of statistics. Gay, 694 F.2d 551. Consequently, even proof of a prima facie claim of disparate
impact, which does not exist here, is only a starting point and rarely sufficient itself. Id. This is
because [r]egardless of how devastating or reliable the statistics may look [and here they are neither],
the issue remains in [disparate treatment] cases whether a particular isolated historical event was
discriminatory. Id., quoting Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1270 (9
th
Cir. 1980). At
bottom, for statistics to establish a prima facie case of disparate treatment, they must be stark and
show a clear pattern, unexplainable on grounds other than race. Id., quoting Village of Arlington
Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977). That clearly is not the situation here.

The statistical evidence simply does not support viable claims of disparate impact or disparate
treatment.

4. The Draft Report Is Replete With Baseless And Inaccurate Statements.
The same is true of the anecdotal evidence in the Draft Report. It is even less persuasive than the faulty
statistical evidence. It consists of baseless supposition and assertions that are demonstrably inaccurate
or superfluous. As for the former, at page 8, the Draft Report identifies several phrases that TFK
managers allegedly used to describe deficiencies in the performance of certain complainants, and then
without explanation unilaterally brands them as euphemisms for race. Specifically, the Draft Report
states:
Stereotypic complaints of AA employeesslow, failure to pull weight, lack of urgency,
not a self-starter, unable to grasp fundamentals for a task, dazed, weakest link, accident
waiting to happen.

Capitol Hill site involves essentially the same work and draws on the same pool of labor using a random process.
In point of fact, however, the work at the University of Washington site is distinct; it is a much larger project that
requires twice as many laborers who must work under more challenging conditions, including higher pressures (up
to 5 bars compared to 1.7 bars), which requires more specialized experience and training. Further, Laborers are
not always secured randomly through dispatch. One of the partners in the joint venture handling the work at the
Capitol Hill site, Colucio, is a local contractor with wide and deep Puget Sound roots, a far greater familiarity with
the local labor pool, and the discretion to call for specific workers who are known entities based on prior
experience. The statistical data also show that in addition to turning down or discharging more African American
Laborers than at the Capitol Hill site, TFK also has turned down or discharged significantly more Caucasian Laborers
(and Laborers in general), which is consistent with causes unrelated to race.

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The report gives these words connotations they do not support. TFK appreciates that there are phrases
widely (and justifiably) viewed as thinly veiled code for race-based stereotypes. The words highlighted
in the Draft Report simply are not among them. Stating that an employee works slowly, cannot grasp
fundamentals, or is an accident waiting to happen is not remotely suggestive of race bias. The courts
agree. See, e.g., Clay v. Interst. Natl Corp., 900 F.Supp. 981, 991-92 (N.D.Ill. 1995), affd, 124 F.3d 203
(1997) (remark, you people are causing problems, was hopelessly ambiguous, and not probative of
unlawful animus); de la Cruz v. New York City Hum. Res. Admin. Dept., 884 F.Supp. 112, 115-16 (S.D.N.Y.
1995), affd, 82 F.2d 16 (2
nd
Cir. 1996) (claim rejected, despite employers stated opinions that plaintiffs
work problems were cultural and plaintiff and Hispanic supervisor will understand each other
better); EEOC v. Clay Printing Co., 955 F.2d 936 (4
th
Cir. 1992)(deadwood, at best, refers to
seniority/productivity, not age); Kishaba v. Hilton Hotels Corp., 737 F.Supp. 549, 576 (D.Hawaii 1990),
affd, 936 F.2d 578 (9
th
Cir. 1991) (no inference of race bias from you people statements because not
discriminatory and did not single out particular race); Randle v. LaSalle Telecommunications, Inc., 876
F.2d 563, 570 (7
th
Cir. 1989) (statements that plaintiffs contract meant nothing to [supervisor], it was
just a piece of paper, and [she] should be grateful for whatever it is that [she] get[s] not probative of
race bias).
The absence of any racial dimension to these words is further reflected in the undisputed fact that TFK
managers have used the same terms to describe concerns with the performance of non-minority
workers. At page 8, immediately after declaring the above-referenced phrases are reflective of race
bias, the Draft Report expressly acknowledges that similar terms were used to describe two Caucasian
employees who were discharged. As a matter of both fact and law, TFKs periodic use of these terms
does not support the inference of unlawful animus the Draft Report posits.
The Draft Reports reliance on the concept of progressive discipline is equally misplaced. At page 5, it
notes that two complainants were discharged without prior progressive discipline (which, of course,
means that the others did receive that process). At page 7, the Draft Report adds that the discipline
process used is contrary to policy in Traylor Hourly Employee Handbook. The first statement is made
without context, and the second is flat wrong. The statements serve no discernible purpose other than
to misleadingly imply that TFK acted inappropriately by denying minority workers progressive discipline
that was otherwise required or promised and afforded to Caucasian Laborers. This implication is false.
TFK had no contractual or legal obligation to provide progressive discipline. Section 3.13 of the Hourly
Employee Handbook, titled Discipline Procedure, begins with the express statement that progressive
discipline is not promised and discharge may occur immediately at the companys discretion:
Not all steps in the progressive discipline procedure are followed in every case.
Depending on the severity of the offense, some steps may be skipped and an employee
terminated immediately.

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Further, in exercising that discretion, TFK has, in fact, provided some Laborersminority and non-
minority alikewith reassignment, feedback and additional chances before finally removing them, i.e.,
a progressive process. The Draft Report acknowledges this fact, albeit grudgingly and without attaching
significance. At page 4, it notes: Some individuals may have received some feedback regarding the
manner in which they performed the job. At page 5, it adds that with respect to one complainant,
[t]here is evidence that he was coached. ) There also is no evidence that TFK has exercised its right to
discharge without prior discipline only with respect to minority Laborers. TFK has discharged many non-
minority Laborers in the same fashion.
9
As further anecdotal evidence of race bias, the Draft Report repeatedly asserts that TFKs hire and fire
decisions, and particularly the post-dispatch interview process, are subjective, unstructured and
largely undocumented. Again, the assertion fails factually and legally. Before any interviews started,
the Laborer reviews a pre-printed checklist of specific skills, experience and knowledge TFK deemed
necessary for the work to be performed safely and satisfactorily. The Laborer completes the form him-
or herself, essentially providing a self-assessment of qualifications. All dispatched Laborers, regardless
of race, are required to complete the form. The form then becomes the basis, the frame of reference,
for the interview. The entire process is structured and directed at objectively determining the Laborers
actual qualifications. The checklists help to standardize the self-reporting process and to ensure that all
Laborers are being assessed against the same set of objective criteria. Further, even if the process was
entirely subjective, as a matter of well-settled law that fact does not, and may not, support an inference
of discrimination. The United States Supreme Court has expressly stated, for example, that [a]n
employers policy of leaving promotion decisions to the unchecked discretion of lower-level supervisors
should itself raise no inference of discrimination. Watson, 487 U.S. at 990. See also Denney v. City of
Albany, 247 F.3d 1172, 1186 (11
th
Cir. 2001)(It is inconceivable that Congress intended anti-
Finally, the Draft Report ignores the fact that TFK has no
obligation to slow work on the project and jeopardize the safety of other workers to afford a much
smaller number of Laborers the time and opportunity to develop skills they were reasonably required to
hold in the first place.

9
The same conclusion applies even if progressive discipline had been required, because there must be evidence
that ties the claimed procedural irregularity to the complainants race, and here there is none. As one federal
court has stated in the hire context: [E]ven if a court suspects that a job applicant was victimized by poor
selection procedures, it may not second guess an employers personnel decision absent demonstrably
discriminatory motive. Id. at 1183, quoting, Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982). See also
Harris v. Niagara Mohawk Power Corp., 252 F.3d 592, 599 (2
nd
Cir. 2001) (mere fact that an employer failed to
follow its own internal procedures does not necessarily suggest the employer was motivated by illegal
discriminatory intent), quoting Raudle v. City of Aurora, 69 F.3d 441, 454 (10
th
Cir. 1995); Chock v. Northwest
Airlines, 113 F.3d 861, 864-65 (8
th
Cir. 1997) (no claim where employer did not enforce rule requiring candidates to
complete one year in current position before promotion); United Assn of Black Landscapers v. City of Milwaukee,
916 F.2d 1261, 1266-67 (7
th
Cir. 1990) (no inference of bias where employer discarded test on which African-
American had highest score and required re-examination of all applicants).


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discrimination statutes to deprive an employer of the ability to rely on important criteria in its
employment decisions merely because those criteria are only capable of subjective evaluation.). Finally,
the interview process is not nearly as unusual as the Draft Report suggests. TFK uses a similar process
with respect to dispatched Electricians and Operators. The former are required to pass a written test
and the latter are interviewed regarding their knowledge of, and experience with, the specific machinery
to which they will be assigned (e.g., cranes, loaders, TBMs, and locomotives). Notably, there is no claim
or evidence that either of these processes has caused, contributed to, or facilitated discrimination based
on race or any other protected characteristic, despite their substantial similarity to the post-dispatch
interviews of Laborers dispatched for Group V Miner and Group VI Tunnel Miner work.
The Draft Report contains an equal number of statements of opinion and purported fact that are
inaccurate and/or irrelevant. Consider the many references to retaliation. The first paragraph of the
Investigation Process section is devoted to this concept, even though there is no retaliation claim
under investigation. It states that some hourly employees were unusually concerned about
retaliation, that the concern extended to future projects, and that it even affected the investigators
decisions regarding the structure of [her] investigation. Similarly, at page 8, the Draft Report refers to
the unusual fear of employee witnesses. These conclusory statements, viewed individually or
collectively, are fraught with negative implications for which no supporting detail is offered. Their
collective thrust is the false impression that TFK has created a work environment of fear and
intimidation. By design or default, they lend visceral support to the core complaints of discrimination.
That should not be permitted. To TFKs knowledge, no employee who has participated in this review
process has complained of retaliation. Nor has any employee refused to speak with the investigator for
fear of retaliation (or any other reason, for that matter). And TFK has undertaken significant precautions
to avoid even the appearance of retaliation. TFK did not participate in the interview process, did not
have a representative present during the interviews, and did not receive any witness statement or other
information about what any witness said. The point of this non-participation (all of which was
communicated to the investigator, but none of which is found in the Draft Report) was to assure
employees that TFK would abide by its policy and commitment that there will be no retaliation. Finally,
the undeniable fact is that expressions of concern regarding potential retaliation are the rule, not the
exception. They are an unfortunate but understandable dimension of nearly every investigation. One
would expect a seasoned investigator to make this type of experience-based, tempering observation,
and then turn a critical eye to ferreting out the basis for the stated concern, rather than adopt and
repeat it at face value.
10

10
Because the Draft Report offers no supporting detail, the false implication is nearly immune to more specific
rebuttal. The unanswered questions include: How many employees expressed this concern? What did they say?
What is their concern based on? Do any of them claim that any representative of TFK said or did anything that
caused or contributed to the concern, or does it trace to a generalized fear about becoming involved? How did
their expressions of concern affect the investigators decisions regarding the structure of the investigation? Did


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In a similar vein, consider the assertion in the Draft Report, at page 8, that TFKs apparent failure to use
standard HR processes increases the potential for discrimination and a perception of unfairness on the
site. The Draft Report does not describe standard HR processes, identify which processes are lacking,
or explain how their absence may make discrimination more likely. HR processes are as varied as the
companies that use them, and TFK uses a large number that clearly are standard. These include job
interviews, checklists, documented self-assessments, employee handbooks, EEO training and policies,
EEO officers and reporting mechanisms, and safety meetingsall of which the Draft Report ignores or
interprets negatively (e.g., the pre-hire self-assessment and interview). On EEO subjects, TFK offers
processes that likely exceed what is considered to be standard. For example, in addition to publishing
policies prohibiting discrimination (for example, Section 2.1 of the Traylor Hourly Employee Handbook),
TFK encourages employees to immediately report any concerns, anonymously or with attribution, and
provides multiple avenues and points of contact for doing so. Per the Handbook, these include the
worksite EEO Officer, the Company EEO Officer, or the Human Resource Manager, a toll-free hotline
number, and a web-based resource known as the Ethical Advocate http://traylor.ethicaladvocate.com,
which essentially is a reporting center administered by a third party. These EEO policies and resources
are described in both the Handbook and the Corporate Code of Conduct. They are also well-publicized
in paycheck stuffers, jobsite posters, and even wallet cards given to every employee. Notably, no
reports of any discrimination have been received through these reporting avenues.
There are many additional examples of these types of speculative and conclusory assertions and
opinions. They are addressed in Appendix A. Here, suffice it to say that they are the defining
characteristic of the Draft Report, they would not be admissible in court,
11
5. The Draft Report Ignores Anecdotal Evidence That Further Supports TFK.
and they are not probative of
unlawful discrimination.
For every conclusory or baseless assertion the Draft Report offers as evidence of discrimination there
are two or more specific, demonstrable facts that establish even-handed, race-neutral management
focused on qualifications and safety. Most of these specific facts are discussed in the preceding pages.
Three bear repeating here:

those decisions in any way impair the effectiveness or completeness of the investigation? If so, how? Despite the
expression of concern, did the employees nevertheless speak with the investigator? Answers to these questions
are necessary to determine whether the concern regarding retaliation in this context is qualitatively different than
anywhere else and whether it materially impacted the investigation. On the current record, the answer to both
questions is no.

11
Carmen v. San Franciscan Unified Sch. Dist., 237 F.3d 1026 (9
th
Cir. 2001)(A plaintiffs belief that a defendant
acted from an unlawful motive, without evidence supporting that belief, is no more than speculation or unfounded
accusation).

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i. 28% of TFKS workforce are persons of color, which exceeds the 21% goal set forth in its
contract with Sound Transit.
ii. With respect to African American Laborers who were hired and later discharged, the
same persons made both the hiring and the firing decisions in a short span of time:

...where the same actor is responsible for both the hiring and the
firing of a discrimination plaintiff, and both actions occur within a
short period of time, as strong inference arises that there was no
discriminatory motive.
* * *
claims that employer animus exists in termination but not in hiring
[and vice versa] seem irrational. From the standpoint of the
putative discrimination it hardly makes sense to hire workers from a
group one dislikes (thereby incurring the psychological costs of
associating with them), only to fire them once they are on the job.
Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9
th
Cir. 1996), quoting Proud v.
Stone, 945 F.2d 796, 797 (4
th
Cir. 1991).

iii. TFK ultimately hired to perform cross-passage work some of the Laborers it previously
turned away for TBM work. It concluded that while they were not qualified for the
latter, they were for the former. At the time of initial turnaround, it candidly shared this
assessment with them, advised them that they would be hired for the future cross-
passage work, and then did as indicated. These persons include at least one African
American Laborer.

6. There Is No Claim Or Evidence Of Gender Discrimination.
Finally, TFK briefly addresses the finding of gender discrimination. It is difficult to meaningfully respond
because the Draft Report makes the finding essentially without context or analysis, even more so than
with respect to the finding of race discrimination. It finds gender discrimination despite the fact that
there have been no formal complaints by women.
12

12
This statement appears to be referring to no complaints other than the one previously mentioned in the report
being filed with the EEOC. The Draft Report
(Draft Report at p. 1) It finds gender
discrimination without identifying the acts of discrimination, the dates they occurred, the persons who
were subjected to the discrimination or the persons who allegedly committed the specific discriminatory
acts or decisions. After acknowledging there are no formal complaints by women, it cryptically states

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that male witnesses and female witnesses complained on behalf of some women and/or women
generally. Within its ten pages of verbiage, the Draft Report offers three bullet points in support of the
finding. Each is inaccurate and/or incomplete, and the Draft Report expressly states that two are not
even part of the investigation (which, of course, raises the question why there are referenced at all).
Specifically, the Draft Report misquotes and misinterprets a TFK managers personal observation that it
meet the female Apprentice goal because the demands of working in the tunnel are such that few
women appear to be interested in it, and transforms it into an alleged expression gender bias. Second,
the Draft Report refers to an unidentified female Laborer who allegedly was turned around because
she did not look capable of performing the work for which she was dispatched, but who was not
included in the investigation because it was outside the scope. If the situation was not investigated,
which is clear, then it should not be referenced in the report, it should not be described as statement of
established fact, and TFK should not be required to respond unless and until the investigator first
determines that it has some basis.
13
At bottom, the finding of gender discrimination essentially rests on one or more uninitiated, informal
complaints by proxy, made by an unknown number of unidentified persons on behalf of an unknown
number of other unidentified persons (none of whom felt strongly enough to complain themselves) and
based on unidentified allegations about unidentified persons and events. At the same time, it ignores
many other contrary facts, including, for example, that TFK currently employs 3 female Laborers and 7
females total; the pool of qualified female craftsmen, including Laborers, is far smaller than the pool of
qualified men in those trades; the pool of available female Group V Miners and Group VI Tunnel Miners
is even smaller; and TFK has recruited or requested specific female Laborers, and specifically requested
the unions to dispatch more female workers in general.
Finally, it refers to a female Electrician who allegedly had issues
with TFK that were not initially addressed by TFK. This female Electrician is not a TFK employee. Nor
is the person who allegedly harassed her. Both are employees of one of the project subcontractors,
namely, Tunnel Electric, Inc. And TFK never knew she had any issues before reading the Draft Report
because she never disclosed them to TFK, a fact that TFK confirmed directly with the female Electrician.
7. Conclusion.
In the final analysis, the only thing TFK is guilty of is insisting on fully qualified Laborers to maintain the
quality and timeliness of its work and, more importantly, the safety of its personnel. TFK is deeply
frustrated by a Draft Report that gives these fundamental considerations short shrift, while offering a
tangle of speculation and conclusory assertions that obscure rather than elucidate. TFK favors
transparency and has participated in this review process accordingly. But TFK must insist on a
transparent assessment in return, rather than the opaqueness that characterizes the Draft Report.

13
TFK assumes this female Laborer is the female who filed the EEOC charge referenced earlier in the Draft Report
and, again, specifically excluded from the underlying investigation.

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APPENDIX A
Additional Unsubstantiated Opinions and Assertions
Assertion/Opinion: Termination decisions reviewed by MFR were not supported by supervisor
notes or other comparable records. Termination paperwork currently used by TFK is limited to a
checked box on a form that offers possible reasons for termination. Draft Report at p. 3.
Fact: All termination decisions under challenge that were made at the point of initial dispatch
are documented in (i) self-assessment, skills checklists completed by the dispatched Laborer, and (ii) the
handwritten notes of the TFK manager who subsequently interviewed the dispatched laborer using that
self-assessment as a frame of reference. All of these completed checklists and handwritten notes were
provided to the investigator. There also is documentation that relates to, and supports, the decisions to
terminate the employment of certain Laborers after they commenced active employment. It, too, was
previously provided to the investigator. In any event, an absence of documentation is not evidence of
discrimination.
Assertion/Opinion: Mr. Dore used a generic checklist which enumerated the full
list of possible skills a group V or VI miner/tunneler might need regardless of whether it
was specifically related to the job for which he was hiring. Draft Report at p. 4.
Fact: The checklist is tailored to the specific work at issue. It identifies tasks and skills that
either were directly required to be performed, or clearly analogous. This is evident from even a cursory
reading of the document. For example, it identifies mine phone operation, confined space operations,
shotcrete work, nozzlemen and pump operation, EPB tunnel boring machine work, sequential
excavation work and tunnel concrete work. TFK never turned around or dismissed a laborer based on
a skill or task that was not job-related, and the Draft Report sets forth no evidence to the contrary.
Assertion/Opinion: TFKs hiring process for laborers, which includes interviews
conducted primarily by the U-220 Superintendent, is subjective, contrary to dispatch
hiring hall rules and atypical for Puget Sound contractors. Puget Sound laborers are
generally dispatched and presumed to be qualified to perform the work. Other
contractors put laborers to work after drug testing and orientation without conducting
an interview. Draft Report at p. 7.
Fact: As noted above, the interview process is structured and focused on objective criteria.
Further, TFK itself put laborers to work after drug testing and orientation without conducting an
interview, and presumed they were qualified to perform the work, until it became painfully evident
that they were not. Only after that fact became apparent did TFK adopt the interview process. And it
did so with Local 440s knowledge. It hid nothing. The process does not violate any contractual

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provision or hiring hall rules. Local 440 has made no such complaint, by way of grievance or any other
mechanism.
Assertion/Opinion: The lack of available documentation, the limited access to witnesses, and
the unusual fear of employee witnesses made it impossible to compare treatment of similarly-
situated Caucasian employees to the treatment of [four of the] complainants. Draft Report at
p. 8.
Fact: There were no limitations on the investigators access to witnesses. The Draft Report fails
to acknowledge the absolute cooperation of TFK in the investigation process. TFK adjusted worker
schedules to accommodate the investigators access to witnesses. If there was any limitation on access,
it was certainly not because of anything done or not done by TFK. (The references to fear and
documentation are addressed elsewhere in this response.)
Assertion/Opinion: Certain claimants likely were subjected to discrimination, others
may have been, and with respect to still others there is some evidence of
discrimination. Draft Report at p. 10.
Fact: None of these statements, particularly the latter two, are grounded in the applicable law
or otherwise meaningful. The question is not whether discrimination may have occurred, or whether
there is some evidence that could be interpreted that way. That much could have been said without
the expense and effort of an investigation. The investigation commenced in the first place because, at
least from the perspective of the complainants, there was some evidence that discrimination may
have occurred. The point of the investigation is to dig deeper, to collect and marshal the evidence, to
look beyond the surface of opinions and supposition and assess whether they have basis in fact, and
ultimately render a reasoned judgment whether, based on the standard of a preponderance of the
evidence, discrimination has in fact occurred. If there is only some evidence or the most that can be
said is that discrimination may have occurred, the preponderance standard is not met and the claim
must be rejected.
Assertion/Opinion: Several witnesses said environment improved after site meeting
with Michael Traylor (TFK owner) held after initiation of this investigation. Draft
Report at p. 8.
Fact: The statement seems entirely out of place since the Draft Report concludes that
the work environment was not hostile in the first place. Further, the statement misleadingly
implies that a purpose of the site meeting was to address EEO issues. In point of fact, the
meeting had nothing to do with those issues. It was called to address safety concerns, to
provide the owner an opportunity to acknowledge certain then-recent accidents and injuries
and personally affirm TFKs corresponding commitment to workplace safety. (The investigator

23

Sound Tr ansi t
Cont r ac t U220
did not attend the meeting.) It was referred to as a Safety Workshop and it included a
Powerpoint presentation titled, Building a Safety Culture, presented by an outside consultant.
There were three other presentations, each safety-related. Mr. Traylors topic was Traylor
Safety History. The meeting supports TFKs position, not the Draft Reports.
Assertion/Opinion: TFK refused to provide the investigator with any further
documentation of hourly employee discipline. Draft Report at p. 5.
Fact: This is patently false. On December 30, 2011, in response to the investigators request for
seven categories of information, a representative of TFK wrote a letter to the investigator expressly
offering the requested documentation, including discipline files. However, TFK did express privacy-
based reservations about producing discipline records without the relevant employees knowledge and
consent. By letter dated December 30, 2011, for example, TFK wrote:
TFK would be willing to supply this information, however, provided that Sound
Transit execute both (1) an agreement to defend, indemnify and hold harmless the
Joint Venture, its individual partners, and the employees of the Joint Venture and its
individual partners, and their agents, from any allegation by an employee, or a
Union on behalf of an employee, that the disclosure of disciplinary files was
wrongful and (2) a Protective Order limiting disclosure of the disciplinary file(s).
Alternatively, TFK would be willing to provide only the names of individuals who
have been disciplined, with your offices and/or Sound Transit obtaining written
authorization from each such-named individual authorizing the Joint Ventures
release of his/her disciplinary file.
A copy of this letter is attached as Exhibit N. By email dated January 23, 2012, the investigator again
requested a copy of the discipline file for a certain laborer. TFK responded to this request citing the
same privacy concerns as stated in the December 30, 2011 correspondence. A copy of that letter is
attached as Exhibit O. By an email response of January 25, 2011, the investigator stated that while she
disagreed with TFKs privacy concerns, she was declining its offer to produce them as described above
because I do not think the issue is significant enough for us to pursue at this time. A copy of this email
is attached as Exhibit P. The Draft Report should not attach meaning to, and criticize TFK about, an
alleged failure to produce records which TFK did, in fact, offer to produce and which the investigator
characterized as insignificant.

Rebuttal To Draft Report (06!29!2012)

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