Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan
Thank you for taking the time to respond to our letter of June 11, 2012, which addressed what had been described to us as a proposed realignment of the federal hearings program within the EEOC organization. We have conveyed your feedback to our members.
Enforcement of civil rights laws for federal employees is now a matter before the whole Commission as it considers the Strategic Enforcement Plan [SEP]. We understand that development of the SEP requires the Commission to look holistically at the various elements of our organization. However, our main point in our last letter is also relevant to the SEP: this SEP must not continue the historical neglect of the rights of federal employees embodied in all the prior SEPs. In our comments filed on February 1, 2012, which we are attaching to this memo, we pointed out that the proposals specific to the federal sector in the currently proposed plan continue that pattern.
1- Due Process
For over two years, we have gone back to the language of the statutes and made the case to the Commission about the best way for you to carry out your obligations under those statutes, that is, adoption of a due process model for hearings on federal employees' civil rights claims. The current proposed SEP ignores what we have pOinted out. The current Proposed SEP does nothing to provide due process in federal hearings.
The adoption of the Administrative Procedures Act for federal civil rights hearings is not merely a personnel matter. It provides the foundation for due process for federal employees which the current program lacks.1 It would allow AJs to issue subpoenas for information necessary for an adequate record. In contrast, the proposed SEP would continue to ignore the statutory authority for the Chair to appoint administrative law judges [AUs] and continue a defective program which was never contemplated by Congress.
The APA has been called the constitution for administrative litigation. It is the foundation for the parties' right to due process [Le., decisions based on facts and law by competent, independent decision-makers]. The Commission has rejected the "Constitution" applied by other federal agencies in other employment cases, and has not even been willing to consider applying the APA to federal hearings. The whole issue seems to be off the table, we believe because of economic assumptions which have never been objectively examined.
Prior SEPs depended on and perpetuated the myth, as the Dallas District Director's email said last year, that there are no real civil rights issues in the federal government, that we are already the model employer. This myth is useful to those arguing for scarce resources for private sector enforcement. This myth supports the incredibly strong bias of the Commission against funding real enforcement in the federal sector. [And explains why when we were confronted time after time with this bias inside the Commission, we turned for support to civil rights experts outside the Commission, who quickly and easily grasped the necessity of serious reform.]2 This myth must be firmly rejected in the next SEP, by providing real teeth to federal enforcement through administrative litigation.
To provide substantive statutory protection for federal employees, at a minimum, the Commission must provide the due process promised by the APA. We believe we have made it clear that the APA is the foundation of due process, not a personnel rule, and we do not understand why the Commission will not provide a due process hearing model for federal employees.
2- Declining case processing numbers
Putting aside the issue of due process, as the Commission has, the SEP focuses on alleged improvements to the efficiency of the hearings process, through new technology and case management programs. The SEP identifies the proposed technology and case management programs, and the locations of the pilot programs which tested the assumptions of improved efficiency, but, notably, it fails to state that the pilot programs in fact did improve efficiency. We urge you to consider our comments on these alleged improvements. 3
The numbers showing declining "efficiency" are stark. For the past five fiscal years, the rate at which federal sector cases have been resolved within 180 days steadily worsened:
|FY 2007||FY 2008||FY 2009||FY 2010||FY 2011|
The Commission admitted in its PARS Report a few years ago:
Over time, the EEOC's efforts to achieve this goal have become more difficult because of increasing workloads and a greater emphasis on enhancing the quality of hearings. Additionally, the Commission's efforts to achieve this goal have been compounded by the departure of a number of AJs who accepted AU positions at other agencies, which prompted the reassignment of their complaints, creating larger caseloads and further delays in complaint processing.
Other than the admittedly high cost of attrition of experienced AJs, these asserted excuses lack support in reality. There has not been a greater emphasis on quality. The OFP liaisons have performed basically the same type of quality review each year, using the same criteria. AJs have not been advised that there has been an appreciable variation in quality.
Even the high cost of attrition was glossed over. Losing experienced AJs to other agencies did not merely cause a temporary glitch while cases were reassigned, it caused a long-term deficit of experience in handling complex cases, just as the Commission was expanding its jurisdiction to include claims under GINA and the ADAAA, and just as headquarters was advertising AJ vacancies for less experienced lawyers, at a GS-12 or even -11 level, with two or three years legal experience, without a thought to competence and the impact on efficiency. 4
The Commission failed to admit far more significant reasons for higher case processing times, discussed in our attached Comments:
The Commission has reflexively gone to the perennial cures for management problems: increased tracking technology and increased centralized headquarters control. It has done so without ever undertaking the most basic of management duties: obtaining reliable data. Why are some offices more efficient? Why are some AJs more productive? What has caused wide disparities when we all work within the limits of the same system?
The AJA believes that the reasons for such persistent "inefficiency" may be found in the management model used by the Commission: hiring the least experienced lawyers, failing to train them, making judges do clerical work for 200/0 of the day, using irrational management models and district definitions, ignoring our duty to identify and remediate discrimination, and ignoring the increasingly complex caseloads which defy management by numbers.
Administrative judges should be managed by judges. That is the model used under the APA, so the due process model we advocated above would also provide for greater efficiency, as it has for decades at the National Labor Relations Board, the Department of Labor, and most every other federal agency. The Commission has never even offered to work with AFGE and AJA to develop a pilot project to determine if using the AJA model would in fact increase productivity and quality while providing due process.
The SEP persists in ignoring the glaring problem of denial of due process.
The SEP defines the problem of "inefficiency" incorrectly, as a function of a supposed AJ failure to review each case upon assignment and determine the most efficient way to proceed to a fair resolution of the case. The SEP then proceeds on the basis of an erroneous definition to propose solutions which have been tested, yet are unproven: new technology and more centralized management.
The AJA has proposed a different solution which would provide due process, create a rational and streamlined organization chart, improve morale and decrease attrition, and improve efficiency. Within this context, we would welcome the opportunity to explore how more productive judges manage their caseloads, so that we could share insights as guidance to our members.
We look forward to dis.cussing this model with you.
Cc: David Norken, Vice-President
Board Members Ricardo Cuevas, Debra Sharp, Charles Shubow, Lesley Troope, Nancy Weeks
1 Imagine if the OFCCP suddenly told federal contractors or stakeholder employees of those contractors that their ability to bid on federal contracts, or to raise claims of underrepresentation of women, persons with disabilities, racial or ethnic groups, arising under E.O. 11246, would not be decided on the record, by a competent Department of Labor AU protected from political influence or control, but would instead be heard by a lawyer assigned to the case by an unnamed SES manager who is not a judge, who decides how much discovery is needed and whether a hearing is necessary, and requires the lawyer to run a draft decision by him/her before it can be sent to the parties; if there is a finding of a statutory violation, then the "draft" sits for months or years while it is reviewed off the record by the unidentified manager [who mayor may not be a lawyer] under undisclosed criteria for undisclosed reasons. Further imagine that none of this process, except the process before the "judge", is disclosed to the parties or taken under authority of any rules adopted after public notice and hearing.
,NEsA Halle ........ pl." .... "'JW7eN jU.o~I.I" ..
PROPOSALS FOR FEDERAL SECTOR EMPLOYMENT REFORM
OF mE EEO PROCESS
December 19, 2008
1. Statutory change to permit the EEOC to issue and enforce subpoenas in its adjudicatory role. 2. Statutory change so EEOC and MSPB "judges" would have to be administrative law judges.
3 "Again, the AJA would like information about the case prioritization system, including who will be doing it and how. If this requires additional personnel, we believe a better use of resources would be to have additional administrative staff as' signed to hearings units, given that most AJs are responsible for almost all of their own clerical work."
5 There is no evidence that the backlogs are due to inefficiencies in busy districts. In fact some districts with backlogs have higher rates of findings of discrimination and higher productivity per AJ.