The Commission met in the Clarence M. Mitchell, Jr. Conference Room (9th Floor), 1801 L Street, N.W. at 10:00 a.m, Cari M. Dominguez, Chair, presiding.
Agenda
Welcome - Chair Dominguez
Opening Statements
Question and Answer Session
Question and Answer Session
Question and Answer Session
Question and Answer Session
9:57 a.m.
The meeting will now come to order. Good morning. On behalf of my fellow Commissioners, let me welcome all of you to the Equal Employment Opportunity Commission. We appreciate your presence here this morning and your interest in the topic we're about to discuss.
We have a number of guests and senior representatives from OMB, the Senate and House staffs and from other federal agencies. Thank you very much for joining us today. It's a soggy day out there. Some of us had to paddle our way in, it's been so wet, but your presence here today reflects the interest and the commitment you have in improving the Federal Sector EEO complaint processing system. So thank you for that.
And let me also extend my deepest and our deepest appreciation to our panel members. Thank you for your willingness to come and share your experience and expertise with us.
Let us now proceed. Ms. Wilson?
MS. WILSON: Good morning, Madam Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat. During the period December 8, 2001 through November 8, 2002, the Commission acted on 85 items by notation vote.
COMMISSIONER MILLER: Madam Chair, I move that the list of items approved by the notation vote since the last meeting be entered into the record as if read in its entirety.
CHAIR DOMINGUEZ: Is there a second?
COMMISSIONER SILVERMAN: Second.
CHAIR DOMINGUEZ: Any discussion? Hearing none, all in favor please say aye.
(Chorus of ayes.)
CHAIR DOMINGUEZ: Opposed? The ayes have it, and the motion is carried.
MS. WILSON: Madam Chair, it would be appropriate at this time to have a motion to close a portion of the next Commission meeting.
CHAIR DOMINGUEZ: Do I have a motion?
COMMISSIONER MILLER: Yes. I make a motion to close a portion of the next Commission meeting.
CHAIR DOMINGUEZ: Is there a second?
COMMISSIONER SILVERMAN: Second.
CHAIR DOMINGUEZ: All in favor.
(Chorus of ayes.)
CHAIR DOMINGUEZ: Opposed? The ayes have it.
The purpose of this meeting is to examine the equal employment opportunity complaint processing system that is currently available to 2.7 million federal employees. Stakeholders representing both complainants and federal agencies have continued to voice concerns that the federal sector process is much too slow, far too expensive, unnecessarily cumbersome and given to potential conflicts of interest, even as some improvements have been made to it in the past.
During the past several months, I have met with representatives of advocacy groups who have graciously and generously shared their experiences and ideas for reform. Additionally, numerous individuals and groups have written us with their suggestions for improvement. Today's meeting represents a continuation of this ongoing dialogue. Please be assured that your input will be central to the Commission's deliberations regarding reform.
Our next step will to be discuss options for a complaint processing system that will be more efficient, responsive and fair. When the Commission is ready to propose a plan, we will do so through the formal rulemaking process.
The principle behind the phrase, "equal employment opportunity," or EEO, is that everyone has the right to compete for a job, to go about his or her work and pursue advancement free of discriminatory barriers. Race, gender, national origin, religion, disability and age have no place in these matters. Likewise, all employees should be able to seek and obtain prompt corrective action when they believe that violations of law have occurred.
Discrimination can have devastating consequences to people's lives. The system meant to protect civil rights should not compound their problems. More than 23,000 complaints of discrimination are filed annually by federal workers nationwide. The system is so overburdened that many of these complaints stagnate for years before they're resolved.
FY 2001 statistics, which are the most recent -- we still don't have the FY 2000 data available from the agencies, but the FY 2001 statistics show that federal agencies closed 25,283 complaints. However, only 3,830, or 15.1 percent, resulted from decisions of EEOC administrative judges. They took, on average, 800 days to process from filing to issuance of the agency decision compared to 402 days for complaints in which decisions were issued without a hearing. Hearings are a carryover from the old Civil Service Commission complaint process, but for many the hearing represents the only independent, neutral, objective review of the complaint in a process that some view as controlled by the agency allegedly to have discriminated.
If that is the purpose of the hearing, it clearly benefits very few complainants at a significant cost in time and dollars spent by complainants who frequently are represented by counsel. It's also expensive for agencies who normally are represented by counsel and who must fund witness travel to hearings and pay for other administrative expenses, and for the Commission who provides the administrative judges and the support personnel to process the hearing request, conduct a hearing and issue a decision.
While the majority of decisions finding discrimination flow from AJ decisions, not all do. One hundred and ninety-four of the decisions finding discrimination issued by agencies in FY 2001 followed an AJ's decision, compared to only 67, or 25.7 percent issued by agencies without a hearing. Agencies disagreed with 73 AJ decision findings of discrimination. Even including those decisions with which agencies did not agree and did not implement, only 344 of the 25,000 plus closures were, in someone's opinion, findings of discrimination. That represents a paultry 1.54 percent.
Five thousand two hundred and sixty-one of the agency closures were through settlements. Adding those to the 261 findings yields 5,522, or 21.2 percent of complaints, in which we can assume that complainants left the process somewhat satisfied. Those settlements took, on average, 523 days from filing to closure.
The use of alternative dispute resolution processes by agencies is not uniform or consistent. In FY 2001, only 2,526 formal complaints went through ADR. There were 1,336 settlements or resolutions. Fifty-two point nine percent of the complaints going into ADR were resolved, but they represent only 5.3 percent of the closures for the fiscal year. Meanwhile, aggrieved individuals, often without resources to retain legal assistance, become trapped in a complicated and labor-intensive process. They must deal with EEOC counselors at the informal complaint stage, with agency EEO complaint processors at the formal stage, investigators, contract or agency, at the investigative stage, EEOC administrative judges at the hearing stage, agency staff again at the decision staff, EEOC processors and attorneys at the appellate stage. And on top of all that, you add mediators and ADR specialists if there is a viable ADR program at the agency or if EEOC offers hearings -- ADR at the hearing stage or the appellate stages.
The taxpayers' bill for processing a single complaint can range from about $5,000 to more than $28,000, and the greatest cost, however, is to the livelihoods and hearts of the aggrieved individuals, and that price cannot be measured.
We have made some progress in processing federal sector EEO complaints. The changes to the regulations back in 1999 have yielded some positive benefits. Agencies are working diligently to reduce their processing time. EEOC's Office of Federal Operations has reduced its appellate processing time and its inventory significantly. Our AJs have increased productivity as well. But as the statistics show, our stakeholders' concerns and criticisms are still well founded. These issues demand and deserve the EEOC's attention. Even more compelling than the statistics, though, are the real people behind them. Commissioner Miller?
COMMISSIONER MILLER: Thank you.
I want to thank Chair Dominguez for convening this Commission meeting on the EEO process. The federal government has long aspired to be a model workplace and a model employer. In order to be a model workplace, the process by which federal employees address discrimination complaints must be efficient and expeditious and fair at the same time. It must be a process that results in justice for those who have been victims of discrimination and one that ultimately succeeds in eliminating discrimination and its effects in the federal workplace.
Moreover, because federal workers do not have the advantage of filing complaints with our FEPA partners in the states, nor have the EEOC file litigation on their behalf, and they have less remedies available than private sector employees, we must recognize that the processes which take into account -- we must recognize that processes which take into account these unique factors must be developed.
Over the past year, the EEOC has taken a number of steps towards the improvement of federal sector EEO process, most notably in 1999 when we amended our federal sector regulations, and the initial response results following those changes in regulations have been very positive initially. Hearing requests are decreasing, our hearing inventory is decreasing, the EEOC appeals inventory is decreasing significantly, and the time for agency complaint investigations is also decreasing. Despite our continued efforts and the hard work of many dedicated professionals, there is widespread agreement that the federal sector EEO process can be improved further.
I view this Commission meeting as an opportunity to engage in an open dialogue about the way that the federal sector EEO process works and the many potential suggestions for its improvement. I'm grateful to all of you who have agreed to serve as panelists today and all of those who have submitted additional comments to me and who I have met with personally. And to those who I will meet with in the future as we progress and as we move forward on this important issue, for your experiences and your ideas are important as we embark upon the analysis of the federal sector EEO process.
Input from outside stakeholders across the spectrum, whether they be agency EEO directors, employee attorneys, organized labor and management, or civil rights organizations, provide critical information for us to gain valuable insight into the problems we face, understand the impact of our decisions and develop creative solutions. I view you, as outside stakeholders, as our partners in this endeavor, and I look forward to working with you as we turn our attention to these critical issues. Thank you.
CHAIR DOMINGUEZ: Thank you, Commissioner Miller. Commissioner Silverman?
This is an extraordinary meeting of the Commission, and I too would like to thank the Chair for convening it. I would also like to commend Chair Dominguez for having the courage and tenacity to take on this issue; it is not an easy one. The Chair is committed to improving the federal sector process, and I share that commitment. I agree with my fellow commissioners that our federal workplaces should be model workplaces, free from prejudice, harassment and retaliation. And our federal employees are entitled to timely recourse when discrimination has occurred. Yet the current system for processing federal employees' discrimination complaints does not always permit such fair and timely recourse.
The complaint processing is too often measured in years rather than days, and too many agencies have EEO departments that are overburdened and overwhelmed. All too often the complaint process is perceived by federal employees to be stacked against them and lacking in impartiality. We need a system that everyone can believe in. At the same time, we must remember that a number of important changes have been made in the federal sector process over recent years. Most recently, the Commission made some inroads towards improving the process with the revisions to the Part 1614 regulations, including the establishment of ADR programs in all agencies. But I don't think that there's a soul in this room who thinks that all of the problems are fixed and that our job here at the Commission is done.
So the Commission has begun this endeavor searching for ways to increase the efficiency, effectiveness and credibility of the federal EEO process. But for our reform effort to be successful, we need your help, for it is crucial that we have stakeholder input to identify and explore these difficult issues and their potential solutions. Today's panelists have different experiences with, and thus different perspectives on, the federal sector process, and I am anxious to hear from all of you, and I look forward to picking your brains today and as we move forward in this endeavor.
The responsibility for making the federal sector EEO process what it should be is one in which we all play a part. With the Chair's strong leadership and vision and your input, I believe that we can take significant steps towards making the federal sector EEO process one that befits the model workplace. I welcome your participation and I thank you all for joining us here today.
CHAIR DOMINGUEZ: Thank you very much, Commissioner Silverman. It is now my privilege to introduce our first panel members. We will now hear from three individuals who have actually utilized the existing complaint process. Let us welcome Carol Bernstein, an employee of the Department of Housing and Urban Development, Valerie Lloyd, an employee of the Department of Labor, and John E. Jones who is here representing his son, John R. Jones, an employee of the Department of the Air Force. Oh, he's not here yet. There may be some traffic delays. But let's go ahead and proceed and hopefully Mr. Jones will join us shortly. Ms. Bernstein.
MS BERNSTEIN: Good morning.
CHAIR DOMINGUEZ: Good morning.
MS BERNSTEIN: My name is Carol Bernstein, as you know. I am a trail attorney --
COMMISSIONER MILLER: The microphone.
MS BERNSTEIN: I am a trial attorney in the Office of General Counsel at HUD, Housing and Urban Development. I have been there for more 15 years in the Office of General Counsel. Twelve of them I spent in the Office of Human Resources Law, handling labor, personnel and EEO matters, none of which has anything to do with HUD's mission of providing equal housing for all people.
I spent a year and a half -- after those 12 years, I spent a year and a half in the EEO Office trying to help them to reduce their backlog of cases in a sort of ADR process of reviewing cases and identifying those that had issues that really were not EEO issues at all and others that seemed very ripe for settlement, and then I would propose what I thought was a workable settlement. And it worked in a few cases, not in all.
While I was there, I also participated in fashioning HUD's ADR program, which they had done nothing about prior to that point. I participated in first drafts of that program, which wasn't really -- doesn't resemble anything like what HUD finally did adopt. Anyway, two years ago, I went back to the Office of General Counsel in the Office of Fair Housing where I confront discrimination on a daily basis but from the other side -- I'm working on behalf of the victims of discrimination rather than on behalf of the perpetrator of discrimination or the alleged perpetrator of discrimination.
I want to preface my remarks by emphasizing that I am not here as the representative of my Agency. I am here in my individual capacity. I was invited to speak about my own personal views and my own personal experience, both as an Agency representative as a complainant in the process.
When I was an Agency representative in the EEO process, I viewed my position as an advisor to my clients, my client being the Secretary and the Assistant Secretary for HUD, a legal advisor about EEO matters. And when a case came to me to prepare for a hearing at the EEOC, I would review the Report of Investigation and then I would interview the management officials and witnesses and then conduct some discovery. If I found that the complainant's case had very good merit, I felt compelled to suggest that maybe the Agency should settle this case.
I worked in a division, however, that was very reluctant to settle anything. Their view of settlement was that that was an admission of wrongdoing and liability, and they were very unwilling -- that's not to say we never did settle a case but it was with reluctance that that occurred. I also found sometimes when we went to hearing and we had an adverse decision against us, whether that was in the administrative hearing or in court, the Agency was also -- my Office was also sometimes very reluctant to implement the remedy, the view kind of being that we can afford to outlive the complainant's ability to -- and the ability to pay and financial ability to continue to carry the case on. I found that very frustrating, and at times I found that it presented ethical issues for me.
For about eight years of my 12 years in the Human Resources Office, I was working for a man who, in my view, he was threatened by intelligent and educated women, and he was very abusive of the women in his office, and I felt often in that period of time that I should file an EEO complaint. But when I would speak to him about my concerns, he would say, "Yes, I hear you, and, yes, I will change, and I read your lips," and I wanted to believe that, because I wanted to avoid what I had seen happen to many complainants as an Agency representative. I wanted to avoid, you know, the labeling you get as a troublemaker, the emotional distress that it causes people, and I wanted to avoid that if I could, so I wanted to believe him. But, finally, in 1998, another instance happened, and I decided that I would file a complaint. And it took a lot of courage, I think, to have done that.
Prior to my filing a complaint, I and many, many others had been to the General Counsel to complain about this particular person, and she would agree that she knew about the problems and she would take care of them, but she never did. And so although others had make informal complaints, I was the only one that I know of, at least, who had filed a formal complaint.
The process after I filed the complaint, I can't say it worked terribly well for me. I can confirm all the things that Chair Dominguez has said about the time, the length of time it takes to go through the process. I filed my complaint, and by the time -- let's see, I filed the complaint in the fall of 1998, and it was over a year later before the Agency had finally determined which issues it would accept and investigate. And that was because they did so earlier, and then I asked for a reconsideration of those that they rejected, because it was clear to me that the EOS who had done it had not quite understood my allegations. And then that request, apparently, got mislaid somewhere or the response got mislaid, and it took many, many months, and it was only after I inquired about it that they found it. Finally, it was over a year before my issues were accepted.
Then it went to investigation, and the investigator took almost a year to submit his report, in part, or mainly, I suppose, because he could get no cooperation from Management whatsoever. The alleged discriminating official would not speak to him. He would schedule meetings with him but then he never made those meetings. So he finally submitted his report without any affidavits from Management. The EEO Office decided that they needed a supplemental, but that investigator wouldn't have anything more to do with HUD, so he wouldn't do a supplemental. So it had to go to another contract investigator, and starting all over that person didn't have any luck getting an affidavit from Management either but wasted an awful lot of time requesting documents that were totally irrelevant having to do with a period of time long after I had left that Division and had sent interrogatories to people asking the same questions regardless of what their affiliation with the Office had been. So that was a rather incompetent investigation.
Finally, I requested ADR. I filed a second complaint in the winter of 2000. And when I did that, the new regulations, EEOC regulations, were in effect, and I asked for ADR. And the counseling period was -- and I asked for a consolidation of my complaints and for ADR. And the EEO Office determined that my complaints could be consolidated and that they were appropriate for ADR, and they set up a mediation -- contact with a mediator. And the alleged discriminating official in this case apparently had the authority to say whether they, the Agency, would or would not, and he refused to participate in ADR, told the mediator that as well.
So after the investigations were all complete, which was another year later, we're now at two and a half years into my complaint, we had a new administration, a new General Counsel, and I asked for an EEOC hearing, and so they had to start preparing for that. And the front office became aware of my complaints, and they approached me and asked me if I was still interested in ADR, which I was. But it kind of bothered me that I had asked for it over a year prior to that and had been refused, but this was a new administration, a new General Counsel, and I think they were interested in a more employee-friendly atmosphere, and so I agreed to ADR.
We went to ADR, we went to mediation in January of 2002. We're now at four years into my complaints, and we resolved the issue. Hostilities were there. I mean they were entrenched by this time, but with the help of two very, very skillful mediators, we resolved -- we came to an acceptable resolution. It took another five months to implement that agreement, but ADR worked, and I've always been an advocate of ADR and I still am. Of course, it should be utilized at the beginning of a dispute so that you can save the time, the acrimony, the emotional distress and resolve the issue in the very beginning. In my case, it didn't happen that way, but I am an advocate of ADR.
However, HUD's ADR program -- now, this came from our front office and so we went to it successfully -- the ADR program at HUD allows Management to decide whether they will participate. I mean he decided that we would not participate and that has not changed except that the front office decided that they would overrule him and go to ADR. But my suggestion would be that if it can be mandated that the agencies require management to at least sit at the table if ADR is requested by the complainant, and that's not mandate to settle, but I would suggest that if they sat at that table and if they had as skilled mediators as I encountered in mine, that they might even be able to bring two warring, hostile parties to an agreement, to recognize that everybody wins when you can avoid what I had gone through prior to.
Also, I understand from what you say that very few people -- I do view the EEOC hearing as the only unbiased forum, but I understand that very few people utilize that, and I find that a fact that's hard to accept. I mean I don't dispute the fact, but I wonder why because I too feel that the agency -- asking for a decision of the agency is just a prescription for defeat, because the agency almost always will support the agency. And because although we say the EEO director is independent, in fact he or she is not independent of the agency.
So I am certainly in favor of continuing hearings despite apparently the great cost. I would suggest that an administrative judge be authorized to sanction an agency that does not cooperate with the investigation rather than just sanction them for not abiding by the AJ's orders. But the ROI is part of the file, and if it's clear from the ROI that the agency has not cooperated, I see no reason why the AJ shouldn't be able to sanction -- preclude that person, the person who wouldn't cooperate, preclude his or her testimony from a hearing.
Of course, another alternative, another thought I've had, is to lobby Congress for legislation that would make an EEO director independent, just like the IG is, and not answer to the Secretary and not answer to the management of the agency. And then decisions from the agency, I think, would be less biased and would carry more weight.
The last thing I want to say is that, clearly, without accountability, without management accountability, there will be no reforms that will work. I mean I find that to be so in my own case. We settled my case, it went to ADR, and it was successful. The offending official, and at least 30 people had been to the General Counsel about this person before, is still in his position of authority and still doing -- still people are leaving his office for the same reasons, and Management is very much aware of it but they haven't done anything about it. And at HUD, and probably elsewhere, all managers have an EEO component to their performance appraisals but they never seem -- in reality, they are not measured against their success at resolving disputes nor are they negatively measured by the number of complaints that are issued against them or made against them or filed against them.
So I think, and I don't have a suggestion on how to do it, but I think very strongly that if management -- I mean I know the EEO laws are designed to remedy the victim, but if you remedy one victim and leave a whole slew of other victims there under the same management, under the same person, and take no action toward that person, then I think it's a lesson in futility. Thank you.
CHAIR DOMINGUEZ: Thank you very, very much, Ms. Bernstein; appreciate your sharing your experiences with us. We are going to hold off on the questions until we hear from your fellow panel members. So, Ms. Lloyd, welcome.
MS. LLOYD: Thank you for inviting me today, and I also thank the Department of Labor for allowing me to speak to you, although I do speak on my own behalf. I'm a member of Groveton Baptist Church, the Society of Federal Labor and Employee Relations Specialists, the American Federation of Government Employees, Blacks in Government and the NAACP Federal Sector Task Force. I support the No Fear Coalition, the Federal Employees Legal Defense Fund and the Republican Party of Virginia. I am the daughter of a West Point career officer, and Senator Warner appointed my older son to the West Point class of 2004.
CHAIR DOMINGUEZ: Congratulations.
MS. LLOYD: Thank you. He's doing well. For the first 25 years of my career I had a high- performing career in the Department of Labor and I earned outstanding ratings and performance bonuses and awards. I had no need for EEO. When I became team leader in the Performance Management Unit, I had to deal with a poor-performing male co-worker who harassed me and made threatening remarks. He even made a reference to a gun, and when that happened I felt I had to report it to my managers.
My boss' retaliation began within a month, the silent treatment, refusing to review my work products, saying one thing and doing the opposite. Soon the rest of the team started following her example. Within four months of making my reports, I was told I would be removed from my team leader position, demoted and take a cut in pay. It took four more months to effect it. In the meantime, I was advised to keep doing the job or I might be guilty of insubordination. I suffered daily in that hostile work environment and was not able to leave for almost three years. The damage to my career and professional reputation is ongoing. I have had to file seven EEO complaints, all claiming retaliation.
Administrative procedures are supposed to be more streamlined and more timely than legal procedures. Why is the federal EEO, quote, "administrative procedure," so legalistic? It never ceases to amaze me that I am still in the EEO process four years later. I didn't want to be forced into endless legal proceedings; I wanted help resolving the problems. So far every step of the way has involved legalistic technicalities that I can barely comprehend, and I'm not stupid. At each phase I've had a different attorney -- four different attorneys so far. The price tag is well beyond $15,000 at this point.
The more I learn of the EEOC's regulations and directives, the more I am disgusted with my own Agency's failure to follow them. The more I review EEOC's data in the Annual Report on the Federal Workforce, the more I am disgusted at the poor performance statistics of nearly all federal agencies. In the four years I've been a complainant, my first two complaints were combined and dismissed, the third investigated with a final decision of no discrimination, and the rest are combined into an ongoing investigation. Oh, I've also been involved in three rounds of settlement negotiations, all of which Management withdrew from.
I believe the problems with the federal EEO system are management problems, part of the government's human capital crisis. Managers perpetrate most of the discrimination and retaliation. According to surveys in the July 2002 Government Executive Magazine, federal employees report most managers can't, quote, "manage their way out of a brown paper bag." EEO reform should be addressed in the Agency's response to the President's management agenda, but I don't see it happening.
In the Human Capital Edge, authors Bruce Fallon and Ira Kay prove that superior HR practices are associated with the nearly 50 percent jump in shareholder value. They've measured the effects by 43 indicators in various categories. They also document diversity, fairness and equity are all contributors to employee satisfaction, which is correlated with improved business results and can easily translate to the federal government arena.
No doubt adopting their recommendations would improve management practices in the federal government and greatly reduce the discrimination and retaliation that underlie EEO complaints. I'm trying to get my Agency's HR folks to read the book. Knowing what I know about how agencies abuse and ignore EEOC's requirements, I believe that until the EEOC gets effective accountability and enforcement mechanisms in place, any other reforms will have little effect on the EEOC's mission accomplishment.
My take on the problems in the federal EEO system can be summed as follows: The system is too complex, there are too many steps and pitfalls for the unwary, there is a perceived conflict of interest in having the accused agency control the development of the record, there are long delays to get to a final decision, there's a lack of sanctions against agencies for inadequate investigations and inexcusable delays. "These problems disadvantage most particularly the federal worker," and I'm quoting former Chairman Evan Kemp from March of 1990.
Today, I can only briefly share some of my suggestions. To have the most effect on reducing the caseload and costs of EEO, I believe EEOC should focus on eliminating and preventing retaliation. It is the most frequently cited basis for complaints, probably also the root cause of most multiple complaints. Most federal managers have no idea what constitutes retaliation, and they need training on how to identify, stop and prevent their own and other's retaliation. A major public information and training campaign is needed, similar to what we received on sexual harassment several years ago. Eliminate retaliation and you will save a lot of taxpayers money and have a beneficial effect on the well being of many competent federal employees.
I suggest you have only one office in each agency that's allowed to call itself anything with EEO in the name, and only its employees may have EEO in their job titles. At DOL, only the Directorate of Civil Rights can take employees' EEO complaints, yet there are ten other agencies in DOL that have so- called EEO offices with EEO managers. Furthermore, I think there should be separate offices for external civil rights enforcement and for internal federal employees' EEO. It's clear that in my agency the emphasis is on the external enforcement. Federal employees get the short end of the stick.
Federal EEO system is incredibly confusing to employees, made even more so by the agencies' failure to follow EEOC guidelines. The fiscal 2001 report on federal workforce cited, quote, "Labor's EEO Director reports to the Assistant Secretary for Administration and Management three levels below the Agency head." All of DOL's EEO forms say, "Office of the Assistant Secretary for Administration and Management" in bigger print above the small print, "Directorate for Civil Rights." That's a violation of EEOC's regulations, as EEOC correctly wrote in its guidance on retaliation, "Having the EEO Director in the same organization as Human Resources and Personnel has a chilling effect on the willingness of individuals to speak out against employment discrimination or participate in the process."
You should limit the agencies' use of collateral duty counselors and investigators who cannot perform at the same level of competence as full-timers. Do not confuse employees by calling staffers in the EEO Office counselors. These people do not function the same way most people understand counselors to function, which is assisting clients achieve the clients' goals. These folks should be called fact finders.
You should provide more balance between the parties by limiting the potentially catastrophic legal costs to complainants and by limiting the agencies' access to unlimited taxpayer-funded staff specialists and lawyers. I've read in the private sector the focus on the bottom line provides incentive for speedy dispute resolution to save time and money. Some employers offer a menu of alternative dispute resolution options, and the employers pay all the costs except for what's essentially a co-pay. Balance could also be ensured by adopting employee participation or three-party models of ADR. I believe the best ADR programs will be designed and operated using employee participation, followed recommendations of the good old Dunlop Commission.
I believe you should modify the election of forum provisions so that they're not irrevocable. As Steve Burke points out, most complainants do not know enough to make informed irrevocable election of forum, and this has greatly complicated my own case. I knew nothing when I had to make an EEO complaint, and I made the wrong decisions early on, and it has cost me dearly.
I think you should clarify the issues between the collective bargaining and EEO. There are a lot of them. I think you should restore funding levels to their highest levels. That's probably not within your control, but it should happen, according to the suggestions of the U.S. Commission on Civil Rights report, the ten-year check-up, have federal agencies responded to civil rights recommendations? I think you should raise the administrative judges' top grade levels and pay higher salaries commensurate with the MSPB. I think you should support all the recommendations of the Council of Federal EEO and Civil Rights Executives. I think you should develop guidelines for an expedited EEO procedure to be provided in experimental or demonstration personnel projects. This will help reassure employees who worry that these new provisions will be used as more tools of discrimination and retaliation with fewer or no protections.
And I think you should add another protective class to Title VII -- well, you shouldn't, Congress should. The protected class should include employees who are subjected to workplace violence or threats of violence. This is one of the worthy objectives of the Bullybuster's Organization with which I do agree.
I like your web site, but it could be improved by keeping it up to date and putting all your data books on there. Practice what you preach, walk the walk, treat your employees the way you're telling the other agencies to treat theirs. People are suffering profoundly during the interminable EEO process. They're losing their jobs, their life savings, their homes, families, their health.
I'd like to quote one of the thousands of messages that I have shared on the Moving Forward chat community. This is from an anonymous member of the community. Quote, "What hurts so much about the EEO process is that many of us have assumed that it would help us heal. Many of us have found out instead that it makes thing worse. We then not only need to heal because of the original situation but also because of the EEO process. This is because the EEO process is not an antidote for discrimination, it is part of the discrimination. Thank you."
CHAIR DOMINGUEZ: Thank you very, very much, Ms. Lloyd. Mr. Jones.
MR. JONES: Good morning.
CHAIR DOMINGUEZ: Good morning.
MR. JONES: My name is John E. Jones. First, I'd like to thank the Chair and Commissioner Miller and Commissioner Silverman for this privilege to share with you the trials and tribulations we encountered in taking our EEO case through the EEOC federal sector process. I am a layperson with no prior knowledge of the EEO process. I represented my son at his request in his EEO complaint. His complaint involved non-selection for permanent employment. At the time of his non-selection, Ricky was an existing term employee at Robbins Air Force Base, Georgia, doing the very same aircraft sheet metal mechanic work for which he applied for permanent employment.
Ricky filed his initial EEO complaint on March 10, 1998. EEOC issued its final decision on November 14, 2001. This represents three years and eight months in the EEOC process attempting to obtain justice. EEOC, in its final decision, found the Air Force guilty of two violations of employment discrimination. However, EEOC failed to provide any relief or damages to the victim of employment discrimination -- no job, no back pay, no interest on back pay, no compensatory damages, no reimbursement of expenses of going through the process for three years and eight months. No make whole remedy was provided by EEOC like it should have been. The law presumes the victim of discrimination should be placed in the position he would have been in had the discrimination not occurred. EEOC failed to do this.
After Ricky filed his EEO complaint, the following happened: His 971 personnel file is missing, his annual performance review was shredded, he is placed on enforced leave, and the Agency attempts to separate him from employment. At an interview with Agency personnel officials, he is told by the senior official that the only person who could hire John R. Jones for permanent employment at Robbins Air Force Base is the President of the United States by executive order. During Agency processing, Agency violated federal law in not timely producing the Report of Investigation. A third party contract EEO investigator who did not have a contract with the Agency conducted the EEO Agency investigation. Agency improperly prevented Complainant from recording the testimony of government witnesses. The Agency Personnel Manager submitted false information under penalty of perjury to EEO investigator. Agency attorney submitted false information to EEO investigator. Two of the six hiring panel members submitted false information under oath to the EEO investigator. The EEO investigator failed to obtain an affidavit from one of the six hiring panel members. The Agency refused to provide a copy of the EEO investigative report to Complainant as required by law. EEO investigator failed to obtain an affidavit from people we requested be questioned.
In October 1998, the Deputy General Counsel of the Department of Defense initiated a call to me from the Pentagon in Washington stating he had reviewed documentation I had submitted to Agency during the EEO investigation, and it appeared to him the EEO process was apparently not being followed properly and he was concerned about it. He asked that I keep him informed.
In EEO processing through the Atlanta EEO Office, Agency was uncooperative in Complainant's request for production of documents. Agency attorney Brenda S. Mack failed to process our interrogatories. When pressed to produce the interrogatories, the Agency attorney personally answered the interrogatories. We consider this to be legal malpractice. The EEOC judge was requested to sanction Agency for this action. He failed to do so stating, "What good would it do?"
Agency delayed the EEOC hearing on the first day for over an hour trying to locate a missing witness. Upon the witness being located, the witness stated under oath she had not been informed to be in court that day to testify. On July 28, 1999, Major General Richard M. Goddard, Robbins Air Force Commander, at the conclusion of his deposition personally agreed to a settlement agreement, which he later that same day failed to honor.
The morning of the second day of the EEOC hearing, the EEOC judge told myself and my son words to this effect, "I read your MSPB brief last evening and have heard the testimony of the first day of witnesses. It looks like you are going to lose your case, so I suggest you revisit settlement." This biased conduct by an EEOC judge is reprehensible. The judge's biased conduct so upset my son that at that very point I had to send him home immediately and conduct the rest of the EEOC hearing without his presence.
Agency failed to comply with OPM rules and regulations. Agency attorney when scheduling a Base employee who was our exclusive witness inquired of our exclusive witness what his testimony would be the next day at the EEOC hearing. We consider this witness tampering. Agency officials provided conflicting testimony under oath about an Agency decision not to hire any term employees on limited duty.
Witness testimony under oath shows an Agency operation supervisor was invited to a hiring selection panel meeting on January 7, 1998 to share input about prospective term employees being considered for permanent employment and shared with this panel prohibitive confidential medical information about my son. At a meeting of Agency officials and the Agency occupational physician on January 20, 1998, prohibitive medical questions were asked and prohibitive medical questions given that EEOC has ruled violated federal law.
Testimony under oath has revealed that Executive Director Stephen L. Davis ordered two Division directors to review non-selected applicants' medical records, including my son. EEOC has ruled it was not necessary for these Division directors to have access to this information nor to convey it to the Executive Director as the applicants had already been non-selected. This disclosure, therefore, was a violation of the Rehabilitation Act. At the EEOC damages hearing, Agency attempted to call an unscheduled witness.
EEOC in Washington took almost six months to decide initially it had no jurisdiction in the matter because of our MSPB case. After we dismissed our MSPB case from federal district court and refiled our EEO case, EEOC misdockets the case and we lose another five months in administrative mistakes. In June 2001, EEOC makes an initial relief of one count of employment discrimination and no relief for damages at all for my son. We then file with EEOC a request for reconsideration citing errors of fact in EEOC's decision and pointing out there were other violations EEOC failed to cite. EEOC in November 2001 issued its final decision agreeing with us of several errors of fact and agreeing there was a second Agency employment discrimination violation and again steadfastly refusing any relief or damages for my son.
The federal sector process failed to deliver justice in our case. It fails as both the process and the people who operate the process. There were many more problems with our case that time does not permit to be revealed to you here today. Consider these problems the tip of the iceberg. My son who has suffered so much without cause has been on Workmans' Compensation since September 1998 and under the care of a psychiatrist since May 1998. On August 12, 1999, the Office of Workmans' Compensation accepted Ricky's claim for consequential depression.
Ricky still has no job while all his coworkers receive permanent employment from the government and go on about their lives. Note that none of the people who violated the law in my son's EEO case has ever missed a paycheck or been disciplined in any manner for their unlawful actions. I estimate by the time this matter is fully resolved it will cost over a quarter million dollars.
We respectfully request EEOC to amend its final decision in this matter and provide employment and appropriate relief and damages to John R. Jones, the Complainant. This will allow the pending suit to be dismissed. Due to the Agency's failure to comply with your mandatory orders, it would appear they have no standing as to objections in amending the decision. EEOC in its November 14, 2001 decision, had four mandatory orders for the Robbins Air Force Base. They implemented none of these timely, and they have not implemented one of these four even as we speak here today.
Please do not allow injustice to prevail. For the record, we vigorously object to any potential reform of the federal sector process that would eliminate either the agency investigation or the hearings process. We do have a number of ideas, five pages, of how the federal sector process could and should be reformed, and we leave these with you today in print form. Thank you.
CHAIR DOMINGUEZ: Thank you very, very much, Mr. Jones. We have just a few minutes left of this Panel's hour. Perhaps we can get a few questions into you. Commissioner Miller?
COMMISSIONER MILLER: Thank you, Chair. First, I want to thank each of you very much for taking time out to come and speak with us. Your testimony is important and, as we like to say here, puts a face on the case of the kinds of issues that we grapple with. We understand, and your testimony absolutely indicates, that the kinds of issues that we're talking about today are not just abstract policy issues but affect real people, real workers, real complaints, and that's why I think it's so appropriate that we start out hearing from the three of you.
I'm interested in knowing whether any of you sort of considered filing an action in federal court, sort of leaving the EEO process and going directly to federal court at some point?
MR. JONES: We have filed in federal court on February 11, 2002. We are in that process as we speak.
MS. LLOYD: And on my case, I have a court date next week to begin pre-trial motions.
MS BERNSTEIN: I did briefly consider it but that we before the investigations were completed and when they were I decided to go the administrative process and ask for an EEO hearing. I think had I gone to hearing and been disappointed with the decision, I would then have gone to federal court. But who's to say because it was settled before that.
COMMISSIONER MILLER: Ms. Bernstein, did you feel that the threat of the hearing process had any value in your mediation of the case, of bringing people to the table, trying to resolve the action?
MS BERNSTEIN: Yes, very definitely. I mean, on my own part, of course there's always the risk. I felt I had a very strong case, but there's always the risk that the AJ might not agree. I do definitely feel on the Management side they obtained the ROI, and remember, as I told you, the ROI didn't have any Management -- at least the first one didn't have any Management affidavits in it, but it was replete with affidavits from other people in support of my view. So I think that the threat of that was a concern, but also we had a new administration that I think they inherited this problem, and I think they wanted to clear it if they could. So I think it was not just the threat of the hearing but also a desire on the part of the new administration to rid itself of problems that it had inherited.
COMMISSIONER MILLER: Okay. Thank you.
CHAIR DOMINGUEZ: Commissioner Silverman?
COMMISSIONER SILVERMAN: I guess I just have a comment or two. First of all, I want to thank you for your courage for coming today. I know it's not easy to be a witness, and we really appreciate your talking to us today and for your convictions, which are obviously very strong. In my own experience, I think that there is the act of discrimination but then there is the process, and sometimes that compounds the act of discrimination and it grows into its own separate monster, and it sounds like you've all had to deal with that monster and that you're still dealing with that monster. And the monster is compounded by the time, the amount of time it takes.
So two things are clear to me from what you all have said. Number one, we have to do something to reduce the time. In the private sector, mediation has been really effective and I know that that is not a Band-Aid for this whole thing, but it's something that would start the process. And number two, somehow we have to get the agencies to comply with the rulesthat are on the books currently. So I want to thank you. It was very helpful to hear from you.
CHAIR DOMINGUEZ: Thank you, Commissioner Silverman. And I too want to echo my fellow Commissioners in thanking all three of you. It's fascinating from my perspective to hear that all three of you have gone through this process and yet had to deal with very different issues depending on the agency and the type of management that you had to deal with.
Just one quick question: Of all of the things, of all of the steps in the process that you went through, what would you say was the most helpful? Or was there a helpful step? (Laughter.) But of all the things, is there one thing that you felt that the Federal Complaint Processing System had in its favor?
MR. JONES: Yes. I would like to address that this way: I'm dealing with the Air Force which has an FY 2003 budget of $107 billion and 500,000 to 600,000 employees. The Base that my son is employed at has 20,000 employees. For an outside individual, not a government employee, not familiar with the EEOC process, without the ability to use the Report of Investigation to see the end relationships and who reports to whom and how all this is laid out, and then I personally took 22 depositions. We had 17 affidavits, and I think there were 17 witnesses, okay?
Through that discovery process, we were able to find the truth that discrimination had occurred, who did it and when they did it. But if you were to take away the Report of Investigation, take away the depositions, take away the hearings, there is no way, I believe, that we would ever have been able to have achieved the truth or found the truth, so to speak. And at this point, our position is that there were more two discriminations. Even though EEOC has found two, we contend that there are others.
But the point of it is the Agency has -- they have the documents, they have the records, they know what happened. They also know how to cover it up, and in my opinion they might well be inclined to do so depending upon the circumstances.
CHAIR DOMINGUEZ: Thank you.
MS. BERNSTEIN: The one bright light --
COMMISSIONER SILVERMAN: Yes.
MS. BERNSTEIN: -- in my view, is ADR, and I think it needs to be utilized more, I think it needs to be required -- as I said before, required that the agency at least participate because I think that's the cure for the problem.
MS. LLOYD: And for me I think that the one bright aspect of the Federal EEO Process was the hope it gave me for a legitimate redress of grievances, that I felt I had no other recourse other than to pursue redress. The corollary is the disappointment I encountered in actually engaging in the process and how the Agencies totally abuse, delay, corrupt, stymie the process way beyond its intent.
CHAIR DOMINGUEZ: Thank you. Again, thank you very, very much, Ms. Bernstein, Ms. Lloyd and Mr. Jones, and our best to your son, Mr. Jones.
MR. JONES: Thank you.
CHAIR DOMINGUEZ: We greatly appreciate it and hope to continue our dialogue with you. Thank you.
Our second panel this morning is composed of three individuals who have gained considerable expertise in the complaint process through their functional roles and responsibilities, either currently or in the past. Please join me in welcoming Patricia Marshall, who is the Counsel to the Inspector General for the Railroad Retirement Board; Chris Sale, who is currently the Deputy Advisor for External Relations in the Inter-American Development Bank; and Joel Bennett, who is the plaintiff's attorney representing his own firm.
Do please keep in mind that we have about five to seven minutes allocated for speakers so that we can engage in a good interaction. Thank you. Ms. Marshall, welcome.
MS. MARSHALL: Thank you for the opportunity to discuss the Federal Sector Equal Employment Opportunity Complaint Process. As for my background, I serve as the Counsel to the Inspector General of the Railroad Retirement Board. The Railroad Retirement Board is an independent agency in the executive branch of the federal government and this agency administers retirement, Medicare, disability, sickness, unemployment and survivor benefits for the nation's railroad workers. The Office of Inspector General conducts audits and investigations of the agency's programs and operation. The OIG also recommends policies designed to promote efficiency in the administration of the RRB and to detect and prevent fraud, waste and abuse in the agency.
My remarks concerning the federal sector EEO process are derived from a paper entitled, "Examining the Inefficiencies of the Federal Workforce," which my agency's Inspector General, Martin J. Dickman, and I initially issued in September of 2001. In this paper, we examine the inherent redundancies, inefficiencies and inequities in various administrative tribunals, and we also suggested recommendations of consolidation and streamlining of the various administrative processes.
This suggestion was not meant to be a panacea for all the current problems but was meant to generate discussion of viable alternatives and resolve problems inherent in the current workplace. While the scope of that paper and solution encompassed claims that are not entirely within the jurisdiction of the EEOC, some of the problems with the current process and the potential solutions are applicable to today's discussion.
I would like to focus on one aspect of the EEO process that is particularly onerous for both the complainant and the Agency. That aspect is the allowance of numerous opportunities to develop the factual record through repeated statements, testimony and discovery requests of both parties. The parties provide statements and materials to an EEO counselor following the filing of an informal complaint and later to an investigator after a formal complaint. Prior to a hearing before an EEOC administrative judge, the parties conduct discovery, which can consist of depositions, interrogatories and document requests. At the hearing, the parties may testify and introduce other documents into evidence. The factual record may be developed yet again de novo, which means everything that just happened to this point is for naught if the complainant files a complaint in the federal district court. The discovery process is allowed to start all over again with depositions, interrogatories, and document requests. There is potential for another trial where the parties may testify and introduce documents into evidence.
By the time the district court issues a decision, the parties may have been required to give at least six separate sworn written or oral statements concerning the same set of facts. Allowing multiple opportunities to develop the factual record is inefficient, burdensome and detracts from the integrity of the administrative process. It's unprecedented in the legal system to routinely allow the parties numerous opportunities to develop the factual record. This is contrary to the typical notions of justice which gives injured parties just one chance to prove their case.
For example, in administrative tribunals at the state level, generally the facts are developed at the administrative level, and then the record is just appealed through the court system based on those facts. In such systems, the courts are limited to either the application of law to the facts or to ensure that the decision under review is not arbitrary or capricious. Even in criminal cases generally the accused receives only one trial and one opportunity to develop the facts.
Duplication inevitably results in undue delay. According to the EEOC Annual Report on the Federal Workforce for Fiscal Year 2001, the average processing time for a case from the formal complaint filing to resolution by the EEOC was 464 days, and that's for fiscal year 2001. This figure excludes time in the informal complaint phase and then the time a case may pend in the federal court system. Therefore, the actual time spent in the EEO process for federal employees is higher. Because of the multiple steps and repetition in the system, employees may be required to wait an unreasonable amount of time for justice, and it is often said justice delayed is justice denied.
My recommendation primarily focuses on eliminating the repeated opportunities to develop a factual record. The facts of any given case should not be changing. Both parties should be given a single opportunity to develop the facts. This will likely reduce the time needed to reach a resolution for the parties and should be less burdensome. There are various ways to accomplish this type of goal. One option is to streamline the process, keep the informal complaint process essentially the same except the source of counselors. I would recommend that the counselors have no employment relationship with the agency in which the dispute arose, and instead would be derived from a government-wide pool of counselors. This may strengthen the administrative informal process and remove any perceptions of bias.
I would also recommend combining the investigative and administrative proceedings before the EEOC. The investigation could essentially be conducted during discovery procedures, and the fact- finding process would be streamlined with only one chance for depositions, interrogatories and document requests.
I would also recommend that this process be overseen by an ALJ at a neutral third party adjudicatory body. This would separate litigation and regulatory enforcement functions of the EEOC. I would also recommend that there be a safeguard to the parties' rights throughout this process and that the parties should retain the right to appeal any administrative findings through the court system. But I also would recommend that such appeals be limited to the facts that are already developed in the record. Another alternative to change the process is to have the federal sector complainants in a process that is the same that is now afforded to private sector litigants.
The current process for resolving federal sector complaints is replete with pointless duplication of effort and related delays. As a consequence, both the complaining employee and the agency are needlessly burdened and meritorious claims are not resolved in a timely manner. There is many possible ways to reorganize the current system, but now is a good time to change the problems in the existing system. The solution that I just proposed, along with prior proposals that my Agency may have made, to reform the process is meant to generate a meaningful discussion to resolve the very important employment issues in a more timely manner. Thank you.
CHAIR DOMINGUEZ: Thank you very much, Ms. Marshall, and we greatly appreciate the Office of Inspector Generals at the Railroad Retirement Board taking an interest in this process. We appreciated getting your report. Thank you. Ms. Sale?
MS. SALE: Good morning, Madam Chairman. Thank you and the Commission for inviting me here. I am a retired federal employee with over 26 years of service. I am not here on behalf of the Inter- American Development Bank.
CHAIR DOMINGUEZ: We didn't think so.
MS. SALE: It is not a federal agency and not in fact a U.S. government entity. I happen to be a woman of Hispanic descent. When I first sought employment in Washington, people kept telling me to look for an EEO job because I speak Spanish, I guess. I also noted at that time I didn't get a job because on my third interview I refused someone's unsolicited advances. Early in career I remember asking one boss not to keep me off the road, stop me from traveling in deference to my gender because I thought it would avoid my getting a qualifying experience for future assignments, and I did have to work with another boss who initially advised me that my promotion would wait because Joe's wife was having a baby and you have a husband.
I was lucky. Those bosses heard my rebuttals and didn't cause me to be in a position to interfere -- to have to exercise EEO requirements. When I retired from the federal government, I had worked in 16 separate federal agencies, and I had spent 17 years as a senior executive in increasingly senior positions managing large, decentralized organizations.
A lot of my remarks are going to be predicated on my experiences as Operations Manager in an agency and not as either an attorney or as an EEO professional. I am a firm believer in the purposes that the EEOC was established for and the laws that it requires. I have in fact seen policies and practices infringe on individuals' freedoms to serve and ability to productively provide the government with the best that they have to offer. And so I really do believe that the basic fundamental goal that you're about is important. On the other hand, I think in fact the system does need significant improvement.
I have seen employees who, having spent many, many years of painful and difficult processes, arrive at some sort of settlement with an agency or in few instances an EEOC determination that then an agency had to implement where I think the pain of the process greatly compounded the pain of their initial complaint. And I have been involved in executing EEOC requirements and/or in settling cases.
On the other hand, I have seen the system tolerate abuse of itself. I have seen employees with upwards of 34 complaints to their name with a clear intent, either out of frustration or out of a sense of aggravation, to infringe on the system and cause some of the case management problems that you alluded to earlier just by virtue of multiple filings. I mean I've seen employees apply for every vacancy in an institution, even knowing that their quals didn't -- would never have qualified them for the job, and then they filed multiple complaints on that bases. I know that in the last few years we're able to bundle those cases and manage them, but that doesn't necessarily make the system work well without casting aspersions on the motivation of the employee.
I have seen agency counselors unwilling or unable to advise employees as to the relative merits of their case, but rather manage the employee's individual instance in a paint by numbers process, because this is what the rules are and so we have to go through every single one of these procedures, when in fact a more honest conversation on the relative merits of what we're about might have resolved the issue.
I don't want this to be only about abuse of the system by employees. I too have seen managers who are unwilling to hear the facts or to understand someone else's perception of a set of facts because of the way the facts were established. Managers stuck on ill-conceived rule to control in fact have lost control because they then become a party to this ill- use of the system and the attenuated lengthening of any individual's case.
I think we need to find mechanisms to hold managers accountable to participating in the process and that it not be simply a function of a senior manager saying, "I care about this and it's going to be made to work," because that senior manager may not be there the next week, and the system has to work independently of the particular ebb and flow of a new administration arriving or not arriving and paying attention to something.
I have seen agencies who are unwilling to address employee issues and consequently lose the productivity sometimes of large classes of employees as the employees become disenfranchised by the inequity of the inability -- inherent in the inability to be able to get their issues addressed. We need to find ways to gather data and to deal with class action cases in a more efficient and economical way.
Agency personnel systems are, I'm sorry to admit as a former managing officer, notoriously inaccurate and unfriendly to data analyses. So in the instance of class action cases where the only way to get to some sort of a resolution or to even address the issues is to really do data runs. The amount of expense that's involved, either from the agency's standpoint or from the employee's standpoint, is un- Godly. It's not something that the Commission can necessarily address, but I think the Commission can raise the attention of OMB and others that as we look at systems that has to be a piece of what needs to be handled from an operating agency standpoint.
I've seen cases lumber along. I have seen cases that not just averaged three years but that five years after the initiation of a case I am being deposed in the last three months on cases from three agencies ago. And those haven't come anywhere near the Commission, they're still being managed within the agency process. That is an issue of the employee that is an immense expense to the agency, and it simply doesn't get to what everybody wants, which is an effective workforce and an agency that's doing the job that Congress and the President want them to perform.
Finally, I will say it: I have seen agency EEO offices populated with less than the best and the brightest. I think a real emphasis on hiring people who are trained and effective in those jobs and agencies is not something that can be left undone.
In my career, I worked on trying to help some offices do a better job at handling very, very long and large backlogs of agency cases, as well as being involved in two large class action cases that came to settlement while I was there. In one agency, we really did seek the best and brightest young attorney that we could to head the office, and then we assigned resources to seek investigative assistance, both on a contractual basis as well as not. I would urge to say that in some instances that worked very, very well, and in other instances, the for hire investigator didn't know what the merit system was, didn't know what a grade was, didn't know the basics in order to understand what it was that the answers were that were being given.
I too am a strong believer in alternative dispute resolution. I think it needs trained and qualified employees, and I think it needs to be used as early as possible. To the extent that real issues can be honestly dealt with as early as possible in the process, with all due respect, Chairman, maybe you wouldn't have as much to worry about.
The time that it takes to get to resolution and to get to EEOC makes the system worse instead of better. There are, I think, historic resource constraints at the Commission to handle the backlog that comes to it, but there are also large, large issues that ought to be dealt with in the agencies and not be something that ends up on your plate if we can help it.
And, finally, I would say that I think, notwithstanding my emphasis on being able to get to data and to get to facts, I think transparency is a huge issue in the federal personnel process, and it's not as much an EEO reg problem as it is a piece of what generates the number of cases that we all have seen, to the extent the personnel decisions are made within black boxes, and employees don't understand how someone got chosen for what appears to be a plumb special assignment or how promotions and hiring processes work. To the extent that we don't have transparent procedures, employees will feel that they can't trust the agencies and managers will not be able to be held accountable. And so to the extent that you can in some way influence that process through OPM and others, then I would also urge you to do that, because I think that trust is a huge piece of what it is, that's at the core of what this is all about. Thank you very much.
CHAIR DOMINGUEZ: Thank you very much, Ms. Sale. I appreciate your candid assessment, and thank you, more importantly, for contributing from so many years of a very illustrious career in the federal sector -- federal service coming here and sharing those experiences. Thanks. Mr. Bennett.
MR. BENNETT: Thank you. Thank you for the opportunity to speak today, both to the Commissioners and the staff who invited me. I submitted by fax last week a one-page outline of remarks and my background, so I won't spend my time talking about that.
The bottom line from my perspective as an employees' attorney is I think the system is working, I think it's important to keep the system we have but there are improvements that are needed. With respect to ADR, ADR is grossly underutilized in the federal system, from my experience in representing federal employees since 1973. When the Commission last modified its 1614 regulations and MD 110, it required agencies to have an ADR system but it left to the agencies' discretion what complaints to mediate, understandably.
My experience with virtually every major federal agency in the Washington, D.C. area, not including the Railroad Retirement Board, is that mediation is grossly underutilized. I can't say why. My experience in working with federal agencies since 1973 is that federal agencies rarely utilize cost/benefit analysis. They don't look at a complaint and say, "How much is this going to cost us to process worse case analysis, both in time and money, and how much can we resolve -- what can we resolve it for, what's the benefit of doing it that way?"
I think there are two reasons why federal agencies don't utilize cost/benefit analysis. One is what I call the OPM syndrome, OPM meaning "other people's money." It doesn't come out of any federal employees' pocket when they handle these cases, it comes out of someone else's pocket. Maybe the No Fear Act will change that, we'll see.
The other reason why they don't use cost/benefit analysis very much is the people who are working on this they're on a salary and they don't think of their time as having value. When I'm representing a federal employee, the federal employee knows what the cost is because the federal employee is paying me for my time. When I defend an employer in a private sector case, the employer knows what the cost is because the employer is paying me for my time. Even when a case is in court, no one -- a federal sector case is in court, no one on the federal sector side is paying anyone for the representation or the time spent. So that's part of the problem. If the Department of Justice billed every federal agency for defending them in court based on the salary of the assistant U.S. attorneys and the DOJ attorneys, maybe people would think differently. But that apparently is not something that's imminent. So federal agencies need to use ADR more, they need to use cost/benefit analysis.
The EEOC in its processes needs to use ADR more. I've represented employees before the Washington Field Office, the Baltimore Office, the Philadelphia Office and the New York Office. All of them have ADR programs more or less, but they don't have a mandatory mediation program. Our local courts here in the District of Columbia, the Superior Court of the District of Columbia in its Civil Division, has mandatory ADR. That means every case has to go to either mediation, early neutral evaluation, non- binding arbitration or some other ADR mechanism, and they settle somewhere between 30 to 50 percent of the civil cases doing that. The EEOC AJs have varying policies on doing mediation. Last time I requested it in the Washington Field Office they wouldn't do it unless both sides requested it, regardless of how close the parties were, which I think is a mistake.
Secondly, most AJs and offices have a policy of not requiring the settlement authority to be present personally in the meeting. They allow them to be available by telephone. That is a mistake in my experience. Having the settlement authority in the room, face to face with the AJ and the complainant facilitates settlement. Telephone is not as effective. Maybe you want to do it by telephone the first time. If it doesn't work, then require a face to face. Most settlement authority people are middle managers. Their time is no more valuable than my time or your time or the AJ's time, and in the Washington Field Office, they can't be more than a few minutes away.
Why keep this system that we have? Number one, remember Title VII was amended in 1972 to include the federal government. The original Title VII did not include the federal government in 1964. Then the Civil Service Commission promulgated regulations that provided for the hearings. Why did they do that? From my recollection, because this is about the time I started doing this type of work, it was to make the federal government a model employer, and I think the federal government should be a model employer. It gives the federal employee an opportunity to resolve a case less expensively than the court process. I represent lots of private sector employees. They don't have this opportunity, and it's a lot more expensive for them to go to court than it is for a federal employee to go through the EEOC process. From my experience, the cost going through an EEOC hearing is about one-third of the cost of going to court. That's one reason.
Number two, model employer, cheaper than court. Number three, cases settle at the EEOC level. Your own statistics show that a lot of cases settle at the EEOC AJ level. And if you had a mediation program at the OFO level, maybe cases would settle there.
Another reason to have this process is it weeds out the weaker cases that shouldn't go to court. You're doing a service for the federal judiciary; they should thank you. They don't like these cases. Now, since the Civil Rights Act of '91, we have jury trials. That changes the dynamic completely. In the last decade, I've had two cases against the FAA where I lost at the AJ level, I lost at the OFO level, and I won significant jury verdicts in court. So it gives me a chance to try out a case to see what the weaknesses are and see whether it makes sense to take the case to court. But the process isn't perfect. Because the AJ rules against the employee and OFO rules against the employee doesn't mean that a jury will rule against the employee.
Now, what can we do to improve the system? I know your resources are tight. I know Congress doesn't write you a blank check, but you need more resources in this process if it's going to be more timely. More AJs are needed. They don't get their cases decided as quickly as they should. I assume all of them are competent, conscientious people, I have no reason to believe to the contrary, but if they're taking six months to decide motions for summary judgment, three months to decide discovery motions, a year to decide a case after a hearing, which occurs sometimes from my personal experience, they need more AJs so they have a lower caseload.
D.C. and Baltimore have a problem docketing cases. Your MD 110 says an agency is supposed to supply all its files within 15 days of notice of a hearing request. They can't tie me up anymore making the hearing request because I can make it directly now, that's a plus. But they don't get their records in in 15 days, and the AJs don't get after them because the cases aren't even docketed in 15 days. And the reason I get when I inquire about it is that they don't have the support staff to docket cases. I've had cases take 60 to 90 days just to get docketed before they even get assigned to an AJ. That is unreasonable. When you file a case in court, it's docketed and assigned to a judge the day you docket it. The judge doesn't get to it immediately, but it's docketed. You have a case number, you have a judge. You need to have better resources, more cross-training and get these cases processed more quickly at the AJ level.
One other point: You have no requirement in your 1614 regulations or MD 110, to my knowledge, that the agencies maintain any database of known discriminators. The findings of discrimination are rare, less than ten percent at the AJ level, less than five percent at the agency level. Yet in a case I tried in court last week, the selectee is someone one of your AJs has found to have discriminated against an agency employee. The agency adopted that decision. This person was selected for a Grade 15 job at the FAA. He did not disclose the prior finding of discrimination. No one knew about it when he was selected for this Grade 15 job, and they had no mechanism for finding out about it, no requirement that he disclose it and he got the Grade 15 job, has been working merrily along as a known discriminator.
You need to revise your system to require agencies to maintain a database of people who have been found to have discriminated against and require them to disclose that in their application papers where KSA number one is ability to supervise and promote EEO is part of KSA number one. How can someone file an application under declaration of penalty of perjury and not disclose that he or she has been found to have discriminated against someone? And the agency has no database before they select someone to check to see if the person has. It's an outrage.
Now, I'd like to spend the rest of -- just a few seconds rebutting what Ms. Marshall had to say about repetition and de novo. No employee who's represented by a competent, experienced attorney is going to repeat anything that's in the ROI. I have cases, these last two jury trials against the FAA, I didn't take any depositions, either at the EEOC level or at the court level, because I had those affidavits from the ROI. When I send out written discovery, if the agency has already answered it, they say, "We've already answered it. It's in the ROI." At the district court level, the AUSA says, "We've already answered that. It's in the agency --." So I'm not in the business of wasting my time and my client's money. If that happens, it happens in cases where there are incompetent or inexperienced attorneys or a complainant's going pro se. No competent, experienced attorney would waste his time or his client's money doing that.
So I think the system works well, it's a plus for federal employees, but you should improve it by allocating more resources, having mandatory ADR and mandatory disclosure of database of persons who have been found to have discriminated against. Thank you.
CHAIR DOMINGUEZ: Thank you very much, Mr. Bennett. We have a few minutes for follow-up questions. Commissioner Miller?
COMMISSIONER MILLER: Thank you. And thank you, each of you, for your perspectives and comments. They're really very, very helpful. And as we begin to unpack these different issues that are before us, I think that varying different issues sort of arise and bubble up, areas of agreement, areas of different perspectives, and that diversity of opinion is quite helpful.
As some folks know, I'm a big proponent of alternative dispute resolution. I was involved in the development of the ADR program here at the EEOC on the private sector side. One of the challenges, I think, of ADR, and this is something that I hear on the private sector side, and why some private sector employers, many private sector employers do not choose to engage in mediation, is the fact that they feel they don't have enough information available yet to go into a mediation in order to sort of appropriately value the case.
So the balance that is always trying to be sought is sort of a balance between getting the parties, both the employer and the employee, enough information so that they can appropriately value the case that they have in mediation so that they can work through the issues knowingly and competently and have a good sense of what the issues are and what the facts are there. And that sort of is relevant at what point, what stage along the way that we do ADR, and I was wondering if any of you had comments about the use and value of ADR and having enough information on the use of the investigation process, internal investigation process, the hearings process to get that information on the table?
MR. BENNETT: Well, I find it invaluable in evaluating cases to have that ROI. I never take a case to court without an ROI unless there's a statute of limitations problem or some other reason to do so. And I've handled many private sector cases, and that is a significant impediment to settlement. In fact, most private sector cases don't settle until after dispositive motions have been ruled upon and the employer is facing a jury trial in court. That's when your case has the maximum settlement value, after you've finished discovery.
COMMISSIONER MILLER: Would the same be true for settling a case, in your experience, prior to a hearing where you've got a body of evidence in front of you, sort of gearing up towards a hearing as opposed to settling prior to hearing?
MR. BENNETT: Yes. I find that many agencies don't get serious about settling a case until after their motion for decision without a hearing is denied by the AJ and they know they're facing a hearing, then they get serious about settlement.
MS. SALE: I'm going to speak without the level of expertise that Mr. Bennett or possibly Ms. Marshall have. There are absolutely cases where an agency and/or an employee have very, very different views on what's going on and where I think you need elaborate processes to get at least some degree of fact finding on the table. Those cases, in my personal experience, are the ones where an employee ultimately hires an attorney and really kind of forces the system to deliver some sort of judgment or finding.
There are hundreds, if not thousands, of cases where either in the informal part of the process or in the early parts of the process, what's really at issue is a perception, a miscommunication, a lack of understanding among two individuals, a problem that's not necessarily an EEO problem but that is a Personnel, Management or Human Resources problem where I think early intervention would really enable us systemically to not weed out cases but resolve instances saving then the more rigorous EEO reg process for those cases where there really is an honest to God grievance and dispute that meets the tests that are involved.
And I find that early dispute resolution really, I think, has helped the agencies that I've been involved in reduce their sort of numbers of cases that are going through the whole process, because you get early attention to stuff, whether or not it happens to be really at its core an EEO issue or whether EEO is the vehicle for an employee to say, "Something bad's happening to me and I need it fixed or I perceive something unfair has happened to me and I need to understand it."
I think in other cases you need some sort of investigative report in order to get to some sort of closure because you have to have a sense that everybody's got a set of facts that they can then look at and consider in their review.
COMMISSIONER MILLER: The challenge, of course, is how do you separate the weak from the chafe.
MS. SALE: Absolutely.
MS. MARSHALL: I believe ADR is a very important part of the process and should be emphasized. I also do believe that having the facts evolved in a piecemeal fashion, as they can be during the current process, will not lend itself towards an effective use of ADR. I believe you can probably strengthen the informal complaint process a little bit more and have the facts developed a little more strongly in that phase as I was suggesting a counselor that's not from the agency in which the complaint arose. That way you'll have more of an impartial person there developing the facts early on. Perhaps that will lend itself to a resolution.
But in another part of the cases that I've seen that have not been developed early on in the informal complaint process or in investigations is damages, and damages are very important from both perspectives to lead towards any type of settlement. And those are normally more fully developed right before the hearing at the AJ level before the EEOC or in the federal court process.
COMMISSIONER MILLER: If I could just ask one other quick question, broad question. One of the issues that's been laid on the table as one of the challenges of the existing process is the problem of the fox guarding the hen house problem of the agencies who have an inherent interest in the cases, doing the investigations, making the decisions, holding onto all of the information, and No Fear Act may or may not cut one way or the other depending on how you rejigger the system. I was wondering if any of you have comments on that proverbial problem?
MR. BENNETT: Well, it would be better to have an independent authority doing the investigations, but it's better than the -- the existing system is better than nothing. The employee has control over his or her statement and that's it. The employee has no control over who else the investigator speaks with, what documents the investigator collects. That's totally between the investigator and the agency whether the investigator is an agency employee or an independent contractor. But by and large, I still find the Reports of Investigation helpful. They're not always as thorough as I would like, but they still help me a great deal and lessen the cost of discovery, both at the EEOC level and at the court level. If we could wave a magic wand tomorrow and have it all done by an independent agency, fine, but I just don't see that as very practical politically to do that.
MS. SALE: I don't disagree with what Mr. Bennett has said. As a manager in an agency, I grew up with an expectation that I needed to, notwithstanding the perception, that I needed to respect and abide by a degree of independence in that investigative report for two reasons. One, I work for the accused and I wanted the system to work for the agency at large. I wanted the system to tell me where I had a problem, and I wanted to be able to know the facts as best as I could.
I was frequently -- not frequently, but several times very distressed when we were using third parties on contract to do investigations for us, because the relative quality and training of the persons who were employed by those entities was not uniformly of the same standard. Some were excellent, others -- you know, I mean remember calling and saying, "I've just been deposed by so-and-so, and we're going to get this job done, but I want you to sit down and understand who it is who's working for this company, because this person doesn't understand what I'm saying, and that shouldn't cloud their results, but it should cloud their ability to understand the case." And I don't know that there are any standards or processes really in place other than management oversight to regulate those kinds of companies.
MS. MARSHALL: The experience at my Agency is that our investigations -- we're a very small agency and we do not have any full-time agency staff that are devoted to this at all. Every one of our investigations is conducted by an outside firm. Part of the reality is the outside firm's bid on the process and try to probably win the job by having the most reasonable bid possible, and that may affect the scope of the investigation. So having an outside investigator on that basis may not be the panacea that other people may think, because the investigation may not be as thorough.
Perhaps having, similar to the counseling phase that I recommended in the formal process, if there was a pool of trained investigators that were located outside of the agencies from which the complaint arose, perhaps that could be helpful. Also, these people would be much more familiar with the federal process than the contractors that are available today, because they oftentimes I think investigate for both federal and private sector.
MS. SALE: If I can add something, Madam Chairman, just in response to that suggestion, it would be more difficult in small agency but when I worked at a large Cabinet level, and in particular when we were dealing with cases that were filed by individuals who were in management positions or mid- level supervisory positions, we would seek an investigator from a sister agency, and we had an informal exchange where we would not in fact use our own staff or our own investigators if we were doing the work inside but would go to a sister agency to have the investigation done by one of their staff and provide reciprocal support to another to in fact give all of us some assurance that there wouldn't be any undo intervention in the investigative process. So it's just an example of something that does happen.
CHAIR DOMINGUEZ: Nice help.
COMMISSIONER MILLER: Thank you.
CHAIR DOMINGUEZ: Thank you, Commissioner Miller. Commissioner Silverman?
COMMISSIONER SILVERMAN: I wasn't here when we did the 1999 revisions, and I wanted to know from those of you who have worked with them, how have those 1999 revisions to the 1614 regulations affected the process?
MR. BENNETT: Well, I work with them every day and while they've been helpful, there are several things in them that are troubling to me. And I believe it came in with -- I've been through so many EEOC regulations in the last 30 years that I can't always remember which came -- what came when and in which version of the MD 110. But as I mentioned in my written outline, I believe the sua sponte summary judgment came in at that time. It may have happened before, and that's a pet peeve of mine, and I'm not going to give up. There's no other adjudicatory system, to my knowledge, court, administrative agency, wherever, where administrative judges, on their own, say, "This is a case that should be decided by summary judgment. File motions for summary judgment." That is a very negative and destructive thing to the process, in my opinion, and I also think it's inappropriate for an impartial adjudicator to do that.
In cases that I'm involved in, there's always an attorney on the other side. The standard orders say you can file a motion for summary judgment, a decision without a hearing, by X date. So the judge doesn't need to tell the agency again, "File a motion." If the agency feels a motion is appropriate, the agency has an attorney to make that judgment. So I think that part of the latest version of the 1614 is inappropriate and, as I mentioned in my written remarks, no judge -- assuming the judges are going to continue using that, they at least should exhaust settlement efforts before they do that.
Because once they issue that, settlement is impossible, because, to my knowledge, they always issue them in cases where they think the complainant has no case which is based on the ROI, which the complainant has no control over. And when the agency sees one of these sua sponte summary judgment notices, any settlement discussions you have that have gone on thus far are out the window. And I had one case in Baltimore exactly on point where we were negotiating, we were talking settlement, the judge issued sua sponte summary judgment, the agency said, "Forget it. We're not going to negotiate with you." That was the end, and now that case is on appeal to OFO. So that part of it is inappropriate, in my opinion.
Now, something in there also deals with getting the decisions by 180 days. I can't remember whether it's in 1614 or 110 because they tend to run together in my mind, but, again, when the latest version of 1614 first came out, for a brief period of time, the AJs were getting the decisions out within 180 days of when the hearing request was received. Now it takes 60 to 90 days just to get a case docketed, and you're lucky if you even get to a hearing in 180 days, and you certainly don't get a decision within 180 days. So that part of it is unrealistic. And when an employee sees that, sees that the EEOC doesn't comply with its own regulations, it puts the system in a bad light.
COMMISSIONER SILVERMAN: Any other thoughts?
MS. SALE: I actually remember when the 180 day thing first was issued, and I remember, as a Senior Manager in an agency thinking it lit a fire to make sure that we were in fact putting some muscle behind that machine to try to enable our piece of that process to be within compliance. It was a losing proposition as I recall from the beginning, and I can imagine that over time there's the newness and the sort of -- there are no penalties for not complying, but it's probably eroded whatever impact it may have had in terms of bringing management's attention to those issues in ways that might not otherwise have existed on a regular basis.
MS. MARSHALL: I believe the effort at trying to eliminate the fragmentation of complaints and allowing the amendment of complaints has been beneficial in streamlining the process. As far as allowing agencies to dismiss cases early on, I haven't seen that as being real helpful, and it's primarily because of the delay. And I've seen agencies position to investigate the case as soon as possible, no matter what the facts are, to get them on the record while they're still fresh rather than dismissing the case, risking the EEOC administrative judge throwing out the dismissal and then being in the position of having to investigate a case maybe six months, a year or even longer down the road when witness availability may be a problem. Witnesses may have moved on, they may have retired, it may be real hard looking at the case.
COMMISSIONER SILVERMAN: I have one more question. You know, I think what we're trying to do here, obviously, is make the EEO federal sector process more employee-friendly so that employees can get their legitimate claims processed in a fair and timely way. But at the same time, we don't want to exacerbate employee abuse of the EEO system. What could we do -- obviously, our primary objective is to help employees, but we don't want to open windows. Do you have any thoughts on that?
MR. BENNETT: I don't think there's anything in the system that opens windows. You can't -- it's difficult to stop a pro se complainant from abusing the system. Someone comes into me with 34 complaints, first of all, that person doesn't even make it through the telephone screening system. Thirty-four complaints is automatic disqualification. But there are people with multiple complaints who have legitimate complaints, so you have to choose every case differently.
The agencies, in my opinion, they make it worse in some cases. For example, sometimes they let the alleged discriminating official be the settlement authority in a case. And how does the employee feel when he or she walks into a mediation and the very person the employee's accusing of discrimination is there deciding whether to settle the case? Unless you have a one-owner business or a very small company in the private sector, people would never do that; it doesn't make sense.
So I don't see the system as being one that promotes abuses or promotes frivolous complaints. At the court level, the case law is very strong against that. The recent case law on what is an adverse action has knocked out a lot of cases that used to be able to go to trial on things like lateral reassignments, other things that used to be considered adverse actions that are no longer considered adverse actions. In the D.C. circuit's decision in Brown v. Brody, a lot of cases are getting knocked out on summary judgment now because of that in this circuit and I'm sure in other circuits too. So I don't see it as being a problem from my perspective, but the other panelists may have a different perspective.
MS. SALE: I don't know the answer to your question. It was something that I worried about in more than one agency, so it wasn't just sort of case- specific to a particular environment. I always felt that if we had a stronger mediation and intervention mechanism very early on in the process, most of the agencies I worked for, the so-called counselors who were employees who were doing these other duties as assigned, whose training may or may not have been particularly well administered, I mean it's just the reality, it wasn't their principal job, that if you could sort of nip some things in the bud, maybe you would prevent this from occurring.
I don't know that you could prohibit someone from filing multiple complaints, because there are legitimate cases where people have to have a repeated opportunity to have themselves heard. But there are also, I think, cases where there is abuse and there doesn't seem to be, in my mind, either a perceived sort of authority or backbone or the capacity to deal with them early on, which is why I keep looking to, whether it's ADR or some other form of that, as an early intervention mechanism to try to get those cases before you end up with this aggravating multiplier effect that doesn't necessarily make anything better but does burden everybody's capacity to deal with substantive issues because you've got so much paperwork in the midst that that becomes all you're paying attention to, and that doesn't solve the problem.
MS. MARSHALL: The EEO system, like any other, can't be totally safeguarded from abusive individuals, but the current system really doesn't pose any cost to an individual who would continually file frivolous complaints. Perhaps costs of prior cases in the event of an individual that repeatedly files frivolous cases could be set off against any future recovery. I don't know if that would have any impact or that's something to consider. I'm sure that would not be well taken by my colleague on the private side, but there are no costs, there's nothing in the system to prevent someone filing a case every single day and requiring the agency to expend funds through the whole administrative phase, from the informal phase to, in my agency's case, hiring investigators. That is one of the most difficult issues in the process today, and I know that the prior -- the more recent regulation amendments, I believe, tr