Annual Report on the Federal Work Force Part I EEO Complaints Processing Fiscal Year 2011

Table of Contents

PREFACE

EXECUTIVE SUMMARY

I. SUMMARY OF EEO STATISTICS IN THE FEDERAL GOVERNMENT

Section A. Integration of EEO Into Agencies' Strategic Mission

1. 74% of Agency EEO Directors Report to Agency Head
2. 98% of Agencies Provided their EEO staff with Required Training

Section B. Efficiency in the Federal EEO Process

1. Federal Agency EEO Programs: Complaints Decrease and Processing Times Continue to Exceed Regulatory Deadlines
2. EEOC Hearings and Appeals: Processing Times Increase For Hearings and Appeals

Section C. Responsiveness and Legal Compliance

1. 90% of Submitted EEOC Form 462 Reports Were Timely

II. PROFILES FOR SELECTED FEDERAL AGENCIES

APPENDIX I GLOSSARY / DEFINITIONS

APPENDIX II FEDERAL SECTOR EEO COMPLAINT PROCESSING PROCEDURES

APPENDIX III FEDERAL AGENCIES' PROGRAM STATUS

APPENDIX IV FEDERAL EEO COMPLAINTS PROCESSING TABLES

PREFACE

The United States Equal Employment Opportunity Commission (EEOC or Commission) was established by Title VII of the Civil Rights Act of 1964, (Title VII), with the original mission of eradicating discrimination in employment on the bases of race, color, religion, sex, and national origin. Since 1964, EEOC's role has expanded beyond Title VII. In the federal sector, the agency currently has responsibilities under the following nondiscrimination laws as well:

• the Equal Pay Act of 1963 (EPA), which prohibits employment discrimination on the basis of gender in compensation for substantially similar work performed under similar conditions;
• the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits employment discrimination on the basis of age (40 years of age and older);
• theRehabilitation Act of 1973 (Rehabilitation Act), which prohibits employment discrimination against federal employees and applicants with disabilities, and requires that reasonable accommodations be provided; and
• the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination on the basis of genetic information.

EEOC's Office of Federal Operations (OFO) adjudicates discrimination complaints in the federal sector and monitors federal agency compliance with equal employment opportunity (EEO) laws and procedures. OFO also reviews and assesses the effect of federal agencies' compliance with requirements to maintain continuing affirmative employment programs to promote equal employment opportunity, and to identify and eliminate barriers to equality of employment opportunity.

Equal Employment Opportunity Management Directive 715 (MD-715), issued in October 1, 2003, established standards for ensuring that agencies develop and maintain model EEO programs. These standards are used to measure and report on the status of the federal government's efforts to become a model employer. As detailed in MD-715, the six elements of a model EEO program are:

• Demonstrated commitment from agency leadership,
• Integration of EEO into the agency's strategic mission,
• Management and program accountability,
• Proactive prevention of unlawful discrimination,
• Efficiency, and
• Responsiveness and legal compliance.

Part I of the report covers the period from October 1, 2010, through September 30, 2011 and contains selected measures of agencies' progress toward achieving the following elements of model EEO programs: the integration of EEO into the agency's strategic mission, efficiency, and responsiveness and legal compliance elements of model EEO programs.^[1]

Part II of the report, will be published later in the year, and will contain selected measures of progress made by agencies in FY 2011 toward the demonstrated commitment from agency leadership, integration of EEO into the agency's strategic mission, management and program accountability, proactive prevention of unlawful discrimination, and responsiveness and legal compliance elements of model EEO programs.^[2] Working within our mission to provide oversight and guidance, EEOC strives to create partnerships within the federal community.

The fiscal year (FY) 2011 Annual Report on the Federal Work Force Part I, submitted to the President and Congress, presents a summary of selected EEO program activities of 69 federal agencies. The report provides valuable information to all agencies as they strive to become model employers.

In preparing this report, EEOC relied on the following: 1) EEO complaint processing data submitted and certified as accurate by 302 federal agencies and subcomponents in their FY 2011 Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints (EEO Form 462 reports) - note the Armed Forces Retirement Home (AFRH) and the Department of Energy (DOE) did not file FY 2011 EEO Form 462 reports; and 2) hearings and appeals data obtained from EEOC's internal databases.^[3]

The Commission would like to extend its thanks to those agencies that timely submitted accurate and verifiable EEO complaint processing data. Agencies are encouraged to submit all reports to the Commission in a timely and accurate manner to ensure that the state of EEO in the federal work force is reflected correctly.

As in the past, agencies were provided an opportunity to review the draft of this report. The Commission thanks those agencies that responded with useful comments and suggestions.

EXECUTIVE SUMMARY
STATE OF EEO COMPLAINT PROCESSING IN THE FEDERAL GOVERNMENT

• In FY 2011, 74% of agencies (with 100 or more employees) required to file a FY 2011 Form 462 reported compliance with MD-715's requirement that the EEO Director reports directly to the Head of the agency.
• 98% of agencies (with 100 or more employees) required to file a FY 2011 Form 462 reported they provided EEO staff with the required training in FY 2011.
• Pre-complaint EEO counseling and alternative dispute resolution (ADR) programs addressed many employee concerns before they resulted in formal EEO complaints. Of the 36,642 instances of counseling in FY 2011, 53.1% did not result in a formal complaint, due either to settlement by the parties or withdrawal from the EEO process.
• In FY 2011, 15,796 individuals filed 16,974 complaints alleging employment discrimination against the federal government.
• The number of complaints filed decreased by 3.5% over the previous year and there was a 4.2% decrease in the number of individuals who filed complaints over the same period.[4] In FY 2011, 6.9% of the complaints were filed by individuals who had filed at least one other complaint during the year, up from the 6.3% in FY 2010.
• Government-wide, a total of 10,854 investigations were completed in an average of 183 days in FY 2011. Significantly, 74.7%, of the investigations (8,103) were timely completed, down from FY 2010's 75.8% timely completion rate. Without the United States Postal Service's (USPS) investigations, the government-wide average dropped to 65.3%, which is a decrease from the 66.37% timely completion rate in FY 2010.
• Agencies issued 4,428 merit decisions without a decision by an EEOC Administrative Judge, and 56.5% were timely issued (2,503), up from 51.5% timely issued in FY 2010. Without the USPS' merit decisions, the government-wide average dropped to 37.7%.
• EEOC's hearing receipts increased from 7,707 in FY 2010 to 8,113 in FY 2011, up by 5.3%. The average processing time for a hearing was 345 days, a 3.9% increase from FY 2010's average of 332 days.
• EEOC's appeal receipts increased from 4,545 in FY 2010 to 5,176 in FY 2011, up by 13.9%. The average processing time for appeals in FY 2011 was 378 days, a 29.5% increase from the 292 days in FY 2010.
• As a result of final agency decisions, settlement agreements, and final agency actions fully implementing EEOC Administrative Judges' decisions, agencies paid monetary benefits to EEO complainants totaling $43.5 million in FY 2011, down 7.3% from the $46.9 million paid in FY 2010. An additional $9.2 million was paid out in response to appellate decisions, a 74% increase from the $5.3 million paid out in FY 2010.
• In FY 2011, EEOC's training and outreach program reached 4,351 federal employees through 119 sessions.
• In FY 2011, EEOC Form 462 reports were timely filed by 90% of the agencies (with 100 or more employees) that were required to submit an EEOC Form 462 report (82 of 91).

I. Summary of EEO Statistics in the Federal Government

Section A - Integration of EEO Into Agencies' Strategic Mission

In order to achieve its strategic mission, an agency must integrate equality of opportunity into attracting, hiring, developing, and retaining the most qualified work force. The success of an agency's EEO program ultimately depends upon decisions made by individual agency managers. Therefore, agency managers constitute an integral part of the agency's EEO program. The EEO office serves as a resource to these managers by providing direction, guidance, and monitoring of key activities to achieve a diverse workplace free of barriers to equal opportunity.

As part of integrating EEO into the strategic mission, Section II(B) of MD-715 instructs agencies to ensure that: (1) the EEO Director has access to the agency head; (2) the EEO office coordinates with Human Resources; (3) sufficient resources are allocated to the EEO program; (4) the EEO office retains a competent staff; (5) all managers receive management training; (6) all managers and employees are involved in implementing the EEO program; and (7) all employees are informed of the EEO program. Two aspects of this Section are highlighted below.

1. 74% of Agency EEO Directors Report to Agency Head

EEOC's regulations governing agency programs to promote equal employment opportunity require each agency to "maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and policies." 29 C.F.R. §1614.102(a). To implement its program, each agency must designate a Director of Equal Employment Opportunity who shall be under the immediate supervision of the agency head. 29 C.F.R. §1614.102(b)(4).

When the EEO Director is under the authority of others within the agency, the agency creates a potential conflict of interest where the person to whom the EEO Director reports is involved in or would be affected by the actions of the EEO Director. By placing the EEO Director in a direct reporting relationship to the agency head, the agency underscores the importance of EEO to the agency's mission and ensures that the EEO Director is able to act with the greatest degree of independence.

Of the 91[5] agencies with 100 or more employees that were required to submit an EEOC Form 462 report in FY 2011, 73.6% (67 including AFRH) indicated that their EEO Director reports to the agency head, down from the 78.0% reported in FY 2010 and up from the 60.6% reported in FY 2007. Figure 1 below shows a five-year trend. See Appendix III for a detailed list of agencies' status.

Figure 1 - Percentage of EEO Directors Who Report Directly to the Agency Head
FY 2007 - FY 2011

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2. 98% of Agencies Provided Their EEO Staff with Required Training

Section II(B) of MD-715 requires that agencies attract, develop and retain EEO staff with the strategic competencies necessary to accomplish the agency's EEO mission. In order to ensure staff competency within its EEO complaint program, agencies must comply with the mandatory training requirements for EEO counselors and investigators as set forth in Management Directive for 29 C.F.R. Part 1614, as revised November 9, 1999 (MD-110). Agencies using contract staff to perform these functions must also ensure that these requirements are met.

Chapter 2, Section II of MD-110, requires that new EEO counselors receive thirty-two hours of EEO counselor training and thereafter eight hours of training each year. Likewise, new EEO investigators are required to have thirty-two hours of EEO investigator training and thereafter eight hours of training each year as set forth in Chapter 6, Section II of MD-110.

Of the 91 agencies with 100 or more employees that were required to file an EEOC Form 462 report in FY 2011, 97.8% ensured their EEO staff received the required regulatory training, up from the 95.6% that reported in FY 2010. See Appendix III for a detailed list of agencies' status. Agencies ensured or provided training for 1,227 new EEO counselors and 259 new EEO investigators. Agencies also ensured or provided the required eight hour annual refresher training to 3,323 EEO counselors and 2,342 EEO investigators. Additionally, agencies reported ensuring or providing 41 EEO counselor/investigators with thirty-two hour training and 399 with eight hour training.

Section B - Efficiency in the Federal EEO Process

EEOC's regulations provide that each agency shall ensure that individual complaints are fairly and thoroughly investigated and that final action is taken in a timely manner. 29 C.F.R. §1614.102(c)(5). Section II(E) of MD-715 establishes that a model EEO program must have an efficient and fair dispute resolution process and effective systems for evaluating the impact and effectiveness of its EEO programs. In this regard, Section II(E) recommends that agencies "benchmark against EEOC regulations at 29 C.F.R. Part 1614 and other federal agencies of similar size which are ranked in EEOC's Annual Report on the federal sector complaints process."

1. Federal Agency EEO Programs: Complaints Decrease and Processing Times Continue to Exceed Regulatory Deadlines

Agencies process EEO complaints from applicants' for federal employment and federal employees under EEOC's regulations at 29 C.F.R. Part 1614. Individuals unable to resolve their concerns through counseling can file a complaint with their agency.^[6] The agency will either dismiss^[7] or accept the complaint. If the complaint is accepted, the agency must conduct an investigation and, in most instances, issue the investigative report within 180 days from the date the complaint was filed.^[8]

After the employee receives the investigative report, s/he may: (1) request a hearing before an EEOC Administrative Judge, who issues a decision that the employee or the agency may appeal to the (OFO); or (2) forgo a hearing and request a final agency decision. An employee who is dissatisfied with a final agency decision or the agency's decision to dismiss the complaint may appeal to OFO. The complainant or agency may also request reconsideration of a decision on the appeal. At various points in the process, the complainant has the right to file a civil action in a federal court.

As the EEO complaint process has become increasingly more adversarial, and lengthy, EEOC has encouraged agencies to promote and expand the use of alternative dispute resolution (ADR) as a means of avoiding the formal adjudicatory processes. Used properly, ADR can provide fast and cost-effective results while improving workplace communication and morale.^[9]

a. Pre-Complaint Counselings and Complaints Decrease

The number of completed counselings decreased by 9.7% from FY 2010 to FY 2011 and almost 3.1% since FY 2007. Formal complaints decreased by 3.5% from FY 2010 to FY 2011 but increased 3.8% since FY 2007. Among the 36,642 completed counselings, 15,796 individuals filed 16,974 formal complaints in FY 2011.^[10] The number of formal complaints filed represents 46.3% of all pre-complaint counseling activities in FY 2011. As Figure 2 shows, over the past five fiscal years, the number of pre-complaint counseling activities decreased from 37,809 in FY 2007 to 36,642 in FY 2011; however, the number of complaints filed by individuals increased over the five-year period. During the same five-year period, the number of formal complaints filed continued to represent less than 50% of all pre-complaint counseling activities. See Figure 2. Significantly, while the United States Postal Service constituted 21.7% of the work force[11], it accounted for 40.1% of all EEO counselings, 30.1% of all complaints filed, 27.8% of all completed investigations and 35.9% of all complaints closed in FY 2011. See Tables B-1, B-9 and B-10 in Appendix IV at http://www.eeoc.gov/.

Figure 2 - Completed Counseling to Formal Complaints Filed/Complainants
FY 2007 - FY 2011

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Table 1 below shows that among the cabinet/large (15,000 or more employees) agencies in FY 2011, the U.S. Postal Service again reported the highest percentage (2.1%) of its work force that completed counseling, while the government-wide average was 1.15%. Among the medium sized agencies (1,000 to 14,999 employees), Broadcasting Board of Governors reported the highest percentage (2.9%) of its work force completed counseling. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. Small and Micro agencies (1-999 employees) typically have fewer than 25 completed/ended counselings and, therefore, are not ranked. Table B-1 in Appendix IV lists this information for all agencies and is located at http://www.eeoc.gov/.

Table 1 - Agencies with the Highest Counseling Rate in FY 2011

* Work force numbers as reported by the agency in its FY 2011 462 report.

As shown in Table 2 below, in FY 2011, among the cabinet/large (15,000 or more employees), the Department of Labor reported the highest percentage of individuals who completed counseling within its work force for a complainant rate of 0.8%, while the government-wide average was 0.5%. Among the medium sized agencies (1,000 to 14,999 employees), the Government Printing Office again reported the highest complainant rate of (1.3%). Agencies that had fewer than 25 complaints filed were not included in the ranking. Table B-1 in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/.

Table 2 - Agencies with the Highest Complainant Rate in FY 2011

* Work force numbers as reported by the agency in its FY 2011 462 report.

b. Pre-Complaint ADR Usage - Rates Rise in Two Major Categories

Beginning in FY 2006, ADR offer and participation rates were measured in completed/ended counselings at the end of the fiscal year to ensure greater uniformity, consistency, and quality in the reporting and utilization of ADR data. Therefore, comparison of FY 2006 through FY 2011 data with prior years' data is not possible.

In FY 2011, the government-wide offer rate was 78% based upon 28,585 ADR offers made in 36,642 completed/ended counselings, up from the 75.3% reported in FY 2010. The participation rate was 48.6%, based upon the 17,822 counselings accepted into agencies' ADR programs of the total completed/ended counselings, exceeding the 45.6% reported in FY 2010.

Thirty-five agencies had 100% offer rates in FY 2011. The agencies were the Broadcasting Board of Governors, Central Intelligence Agency, Committee for Purchase from People Who Are Blind or Severely Disabled, Corporation for National and Community Service, Court Services and Offender Supervision Agency for the District of Columbia, Defense Army and Air Force Exchange, Defense Human Resources Activity, Defense Information Systems Agency, Defense Media Activity, Defense National Security, Defense Technical Information Center, Defense Threat Reduction Agency, Defense TRICARE Management Activity, Department of Housing and Urban Development, Department of Labor, Export-Import Bank of the US, Farm Credit Administration, Federal Communications Commission, Federal Election Commission, Federal Labor Relations Authority, Federal Maritime Commission, Federal Reserve System-Board of Governors, Federal Trade Commission, Government Printing Office, Merit Systems Protection Board, National Credit Union Administration, National Labor Relations Board, National Reconnaissance Office, Navajo and Hopi Indian Relocation Commission, Office of the Director of National Intelligence, Peace Corps, Postal Regulatory Commission, Smithsonian Institution, Tennessee Valley Authority and the U.S. Tax Court.

The U.S. Postal Service Again Had the Highest ADR Participation Rate

In FY 2011, the U.S. Postal Service again reported the highest ADR participation rate in the pre-complaint process (67.1%) among the cabinet/large agencies, while the government-wide average was 48.6%. Among the medium sized agencies, the Defense Finance and Accounting Service reported the highest pre-complaint ADR participation rate (66.7%). The government-wide average falls to 36.3% without the U.S. Postal Service. See Table 3. Agencies that had fewer than 25 completed/ended counseling were not included in the ranking. See Tables B-1 and B-4 in Appendix IV for information on all agencies, which is located at http://www.eeoc.gov/.

Table 3 - Highest ADR Participation Rate in the Pre-Complaint Process FY 2011

* Work force numbers as reported by the agency in its FY 2011 462 report.

c. Agencies Meet Counseling Deadlines in 92.8% of Cases

On average in FY 2011, agencies met timeliness requirements for EEO counseling in 92.8% of all completed/ended counselings, which was an increase from 91.5% in FY 2010 and from the 90.0% in FY 2007. Agencies are required to complete counseling in 30 days except when there is a 60-day extension due to an ADR election or the complainant agrees in writing to an extension.

d. Agencies Pre-Complaint Resolution Rate Slips in FY 2011

During counseling and ADR in the pre-complaint stage, EEO disputes can be resolved by either a settlement or a decision not to file a formal complaint. In FY 2011, the government-wide resolution rate average was 53.1%, down from 54.5% in FY 2010.

The Broadcasting Board of Governors Holds the Highest Pre-Complaint Resolution Rate

In FY 2011, the Broadcasting Board of Governors, a medium sized agency, reported the highest pre-complaint resolution rate (83.0%) among all agencies with more than 25 completed/ended counselings. Among cabinet/large agencies, Defense Army and Air Force Exchange Service reported the highest pre-complaint resolution rate (70.1%). See Table 4. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. However ten agencies, Committee for Purchase from People Who Are Blind or Severely Disabled, Defense Technical Information Center, Federal Election Commission, Federal Maritime Commission, Federal Trade Commission, Merit Systems Protection Board, National Capital Planning Commission, Navajo and Hopi Indian Relocation Commission, Occupational Safety and Health Review Commission and the Postal Regulatory Commission, in this category had 100% resolution rates. Table B-3 in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/.

Table 4 - Highest Pre-Complaint Resolution Rates FY 2011

* Work force numbers as reported by the agency in its FY 2011 462 report.

The Defense Army and Air Force Exchange Service Had the Highest ADR Resolution Rate in FY 2011

In FY 2011, the Defense Army and Air Force Exchange Service reported the highest ADR resolution rate in the pre-complaint process (81.9%) among those agencies with 25 or more ADR closures, whereas the government-wide average was 64.9%. Among the medium sized agencies, the Defense Finance and Accounting Service reported the highest pre-complaint ADR resolution rate (70%). See Table 5. When the U.S. Postal Service resolution rate (76.2%) is excluded from the government-wide average, the government-wide ADR resolution rate decreased to 50.9% for FY 2011, up from the 49.6% in FY 2010. Agencies that had fewer than 25 ADR closures were not included in the ranking. Table B-5 in Appendix IV contains this information for all agencies and is located at www.eeoc.gov/.

Table 5 - Highest Pre-Complaint ADR Resolution Rates FY 2011

* Work force numbers as reported by the agency in its FY 2011 462 report.

e. Average Monetary Benefits in Pre-Complaint Phase Declined

Monetary benefits awarded in settlements during the pre-complaint phase, shown in Table 6, surpassed the FY 2007 benefits amount while the number of settlements with monetary benefits declined in FY 2011. The data showed a decrease in the average amount of monetary benefits from $5,457 in FY 2010 to $4,853 in FY 2011.

Table 6 - Monetary Benefits Awarded In Settlements During the Pre-Complaint Stage of the EEO Process FY 2007 - FY 2011

f. The Most Frequently Alleged Basis and Issue Remain Unchanged

Of the 16,974 complaints filed in FY 2011, the basis most frequently alleged was reprisal/retaliation (7,553) and the issue most frequently alleged was non-sexual harassment (5,863). As shown in Tables 7 and 8, this has remained unchanged for the past five fiscal years. In FY 2011, the number of complaints filed with allegations of race (Black/African American) once again exceeded those complaints filed with allegations of disability (physical).

An agency may not take an adverse action or otherwise "retaliate" against applicants or employees because they engaged in a protected activity. See EEOC's Facts About Retaliation for examples of adverse actions, protected activities and other guidance on retaliation.

Table 7 - Top 3 Bases in Complaint Allegations Filed for FY 2007 - FY 2011

In FY 2011, allegations of race discrimination were made in 37.5% of all complaints, up slightly from the 35.6% of all complaints filed in FY 2010. In FY 2011, there was a 3.7% increase in the number of complaints filed since FY 2007, and the percentage of complaints alleging discrimination based on race increased by 6.8%. During that same period, the percentage of complaints filed alleging discrimination based on color increased 4.6%, from 1,677 in FY 2007 to 1,754 in FY 2011.[12]

Table 8 - Top 3 Issues in Complaint Allegations Filed for FY 2007 - FY 2011

In April 2006, EEOC issued Section 15 of the new Compliance Manual on "Race and Color Discrimination." It includes numerous examples and guidance in proactive prevention and "best practices." This Manual Section is located at Compliance Manual Section 15: Race and Color Discrimination.

g. The Number of Timely Investigations Falls and Agencies Continue to Exceed Time Limits for Issuing Final Agency Decisions

Investigations

Investigations into claims of discrimination are a key component of the formal EEO complaint process. Delays may impede the primary goal of gathering sufficient evidence to permit a determination as to whether discrimination occurred. EEOC regulation 29 C.F.R. §1614.106(e)(2) requires agencies to conduct an investigation and issue a report to the complainant within 180 days of the filing of a complaint unless: 1) the parties agreed to an extension of no more than 90 days (may not exceed 270 days); or 2) the complaint was amended or consolidated, which can add another 180 days to the period but may not exceed a total of 360 days.

In FY 2011, agencies timely completed investigations 74.7% of the time, down from 75.8% in FY 2010 (including written agreements to extend the investigation and consolidated or amended complaints). When the U.S. Postal Service is not included, the percentage of timely completed investigations also decreased to 65.3% government-wide from the 66.4% timely completed in FY 2010. Agencies' average time to complete investigations increased from 181 days in FY 2010 to 183 days in FY 2011, leaving the FY 2007 reported average of 176 days as the best time for the previous nineteen years.[13] See Figure 3 below.

Figure 3 - Average Processing Days for Investigations for FY 2007 - FY 2011

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Of those investigations required to be completed within the 180-day time limit, agency in-house investigators averaged 201 days to complete the investigation, while contract investigators averaged 274 days. Several years ago, in a review of the investigatory practices of selected agencies, EEOC identified several reasons for untimely investigations: poorly staffed EEO offices, unnecessary and time-consuming procedures,[14] delays in obtaining affidavits, and inadequate tracking and monitoring systems. For more information, see EEOC's Federal Sector Investigations - Time and Cost, issued June 2004 and Attaining a Model Agency Program: Efficiency.

The Tennessee Valley Authority and The Government Printing Office Completed the Highest Percentage of Timely Investigations

As shown in Table 9, the Tennessee Valley Authority and the Government Printing Office timely completed 100% of their investigations among those agencies which completed 25 or more investigations.[15] Among cabinet or large agencies, the US Postal Service timely completed 99.0% of its 3,019 investigations in FY 2011. Agencies that had completed fewer than 25 investigations were not included in the ranking. Table B-9 in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/.

Table 9 - Highest Percentage of Timely Completed Investigations for FY 2011

In FY 2011, the government-wide average cost for contracting out complaint investigations was calculated at $2,968.99, an 11.3% increase from the FY 2010 average cost of $2,667.17. However, the FY 2011 average cost of agency (in-house) investigations ($7,789.23) increased 10% from the FY 2010 average cost of $7,083.61. Average costs to contract out investigations in FY 2011 were approximately 61.9% less than the average costs of agency (in-house) investigations, which represent a decrease from 62.4% in FY 2010.

Final Agency Actions

EEOC regulations require an agency to take a final action on each formal complaint filed. Table 10 below provides a breakdown, with processing times, for all final agency actions. Agencies may issue a decision dismissing a complaint on procedural grounds such as untimely EEO counselor contact or failure to state a claim. In FY 2011, the government-wide average processing time for issuing a decision dismissing a complaint on procedural grounds was 72.7 days, a decrease from FY 2010's 100.2 day and FY 2009's 83.4 day average processing times. EEOC maintains that, in general, acceptance letters/dismissal decisions should be issued well in advance of the 180 day time limit for completing an investigation, and has suggested a more practical time would be within 60 days of the filing of the formal complaint.

Table 10 - EEO Complaint Closures by Type with Government-Wide Average Processing Times in Days (APD) in FY 2007 - FY 2011

An agency may also issue a decision after an investigation, either finding discrimination or finding no discrimination. In FY 2011, agencies timely issued 56.5% of their final agency merit decisions, an increase from the 51.5% timely completed in FY 2010. Commission regulations require agencies to issue final decisions within 60 days of a complainant's request for such a decision or Administrative Judge's remand for a final agency decision. In addition, regulations require agencies to issue a final agency decision within 90 days after completion of an investigation if the complainant has not requested either a final decision or an EEOC hearing. In FY 2011, agencies issued merit final agency decisions without an Administrative Judge's decision in an average of 128 days, down from 201 days in FY 2010.

The Tennessee Valley Authority, the Defense Commissary Agency and the Department of Education Issued the Highest Percentage of Timely Merit Decisions Without an Administrative Judge Decision

In FY 2011, the Tennessee Valley Authority, the Defense Commissary Agency and the Department of Education reported 100% of timely issued merit decisions without an EEOC Administrative Judge decision. The FY 2011 government-wide average for timely issued merit decision percentage was 56.5% with the U.S. Postal Service and dropped to 37.7% without the U.S. Postal Service. See Table 11 below.[16] Agencies that issued fewer than 25 merit decisions without a hearing were not included in the ranking. For information on all agencies, see Table B-14 in Appendix IV located at http://www.eeoc.gov/.

Table 11 - Agencies with the Highest Percentage of Timely Issued Merit Decisions (Without an Administrative Judge Decision) in FY 2011

Finally, when an EEOC Administrative Judge has issued a decision, the agency must issue a final order either implementing the Administrative Judge's decision or not implementing the decision and simultaneously appealing to EEOC. In FY 2011, agencies issued 3,031 final orders implementing and 52 orders not implementing the Administrative Judges' procedural and merit decisions. Commission regulations require agencies to issue an order within 40 calendar days of receiving the Administrative Judge's decision or the decision becomes the agency's final decision. In FY 2011, agencies issued orders on Administrative Judge merit decisions in an average of 674 days after the complaint was filed, a decrease from 685 days in FY 2010 and an increase from 585 days in FY 2007.

h. Percentage of Findings of Discrimination and Average Monetary Benefits Decrease

In FY 2011 the percentage of findings of discrimination decreased to 2.9% from the 3.3% in FY 2010. Table 12, however, shows that both the total number of merit decisions and the number of settlements increased in FY 2010.

Table 12 - Amounts Awarded in Resolution of Formal EEO Complaints Before Appeals FY 2007 - FY 2011

Average monetary benefits awarded in resolution of formal EEO complaints decreased by 10.8% between FY 2010 and FY 2011, but increased by 3.2% since FY 2007. Table 12 above shows the total monetary benefits awarded during the formal complaint process for the past five fiscal years, while Figure 4 below indicates the portion of these benefits awarded for compensatory damages, attorney's fees and lump sum payments, respectively.

Figure 4 - Monetary Benefits Awarded in the Formal Complaint Stage
FY 2007 - FY 2011

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i. Affirmation Rate of Final Agency Decisions on Appeal Increased

As demonstrated by Table 13 below, 71.4% of final agency decisions (FADs), excluding those in which an Administrative Judge issued a decision, were affirmed on appeal in FY 2011. This represents a 2.2% increase from the FY 2010 affirmation rate and a 1.2% increase from the FY 2007 affirmation rate.

Table 13 - Affirmation Rate of Final Agency Decisions on Appeal
FY 2007 - FY2011

Some of the totals have been corrected from totals reported in previous Annual Reports.

2. EEOC Hearings and Appeals: Processing Times Increase for Hearings and Appeals

By federal regulation, EEOC becomes involved in the handling of an EEO complaint from an applicant for federal employment or a federal employee after the case initially has been processed by the employing agency and a hearing has been requested before an EEOC Administrative Judge or an appeal from a final agency action has been filed.

If a complainant requests a hearing, an EEOC Administrative Judge may oversee discovery between the parties and hold a hearing or issue a decision on the record. If a hearing is held, the Administrative Judge will hear the testimony of witnesses, review relevant evidence, and make findings of fact and conclusions of law in a decision issued to the parties. In appropriate cases, an Administrative Judge may, in lieu of holding a hearing, procedurally dismiss a case or issue a decision by summary judgment.

EEOC is also responsible for adjudicating appeals from final actions issued by federal agencies on complaints of employment discrimination. These final actions may involve an agency's decision to procedurally dismiss a complaint, a final decision on the merits of a complaint when the complainant has not requested a hearing, or a decision on whether or not to fully implement the decision of an EEOC Administrative Judge. Once appellate decisions are issued, EEOC monitors agency compliance with all orders and takes appropriate action to enforce them. EEOC's adjudicatory responsibilities also include resolving allegations of a breach of a settlement agreement involving a federal sector EEO complaint, as well as deciding petitions for review of decisions made by the Merit Systems Protection Board involving claims of discrimination and petitions for review of final grievance decisions when claims of discrimination are permitted to be raised in the grievance procedure.

In addition to, and equally important to its adjudicatory role, is EEOC's engagement in assisting federal agencies in the proactive prevention of discrimination. EEOC's Office of Federal Operations (OFO) provides outreach, technical assistance, and oversight to federal agencies, which includes conducting program reviews throughout the federal government to evaluate agencies' efforts to develop and maintain model EEO programs. OFO also monitors and evaluates agencies' activities to identify and correct barriers to equal opportunity, reasonable accommodation procedures for individuals with disabilities, and ADR programs. OFO also gathers and analyzes data provided by federal agencies on employment trends and EEO complaint processing; issues periodic reports which are publicly available; and works with individual agencies to identify both positive and negative trends in their EEO programs. In addition through EEOC's Revolving Fund, OFO develops training and with staff from various EEOC offices throughout the country, delivers these courses to federal agencies and other interested parties on a wide variety of federal-sector EEO topics.

a. Hearings

i. Hearings Inventory Continues to Rise

The year-end hearings inventory grew from 7,164 in FY 2010 to 8,036 in FY 2011, which represents an increase of 12.2%. Since FY 2007, the hearings inventory has increased 46.0%.

Figure 5 - Hearings Inventory FY 2007 - FY 2011

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ii. Hearing Requests Increase

Hearing requests increased by 5.3% from 7,707 in FY 2010 to 8,113 in FY 2011, and increased by 3.1% since FY 2007. For comparison purposes, the 8,113 hearings requested comprised 47.8% of the total complaints filed in FY 2011.

Figure 6 - Comparison of Requests for EEOC Hearings to Complaints Filed
FY 2007 - FY 2011

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iii. Hearing Closures

During FY 2011, EEOC's Hearings Program resolved 7,672 cases (including 30 class actions), which represents a 6.4% increase from the 7,213 cases resolved in FY 2010 and a 7.1% increase from the 7,163 cases closed in FY 2007. Excluding the class actions, the 7,642 individual cases in FY 2011 were closed in the following manner: 10.7% were by decision following a hearing; 27.6% were by decisions on the record; 30.4% were closed by settlements; 13.8% were by procedural dismissal; and 17.5% were withdrawals. See Table 14 for a comparison of FY 2007 - FY 2011.

Table 14 - Hearings Program Individual Case Closures: FY 2007 - FY 2011

iv. Average Processing Time for Hearings

The average processing time for hearing closures increased from 332 days in FY 2010 to 345 days in FY 2011, and also represents an increase from the 248 days in FY 2007. The average age of the pending inventory increased to 383 days in FY 2011 from 380 days in FY 2010, and also exceeded the 276 days in FY 2007.

Figure 7 - Average Processing Days for Hearings
FY 2007 - FY 2011

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v. Agencies Challenge Findings of Discrimination

In FY 2011, EEOC Administrative Judges issued 164 decisions finding discrimination, which was 5.6% of all decisions on the merits of complaints. In comparison to the 158 decisions finding discrimination that Administrative Judges issued in FY 2010, the 164 decisions in FY 2011 represents a 3.8% increase. Agencies may either fully implement the Administrative Judge's decision or not fully implement and simultaneously appeal the Administrative Judge's decision to the OFO. In FY 2011, agencies appealed only 1.6% of all Administrative Judge decisions. However, they appealed 27.5% of the cases where an Administrative Judge found discrimination.

Table 15 - Agency Actions on Administrative Judge Decisions FY 2007 - FY 2011

vi. Monetary Benefits Decrease at Hearings

In FY 2011, Administrative Judges' decisions and settlements at the hearings stage awarded $58 million in benefits, as compared to the $63.1 million in FY 2010 and the $39.9 million awarded in FY 2007. Note that benefits awarded by decisions of Administrative Judges at the hearings stage are preliminary, pending a decision on implementation by the agency or on appeal.

Figure 8 - Monetary Benefits Awarded from Hearings (In Millions of Dollars)
FY 2007 - FY 2011

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The total FY 2008 award included a large class action complaint settlement.

vii. Affirmation Rate of AJ Decisions on Appeal Drops Slightly

As demonstrated by the table below, almost 93% of Administrative Judges' decisions were affirmed on appeal in FY 2011.[18] The number of appealed Administrative Judges' decisions decreased 18.4% over the five year period between FY 2007 to FY 2011; the affirmation rate also dropped by 1.8% during this time period.

Table 16 - Affirmation Rate of AJ Decisions on Appeal
FY 2007 - FY 2011

b. Appeals

i. Appeals Inventory Increases

OFO's appellate inventory, at the close of FY 2011 rose to 4,337, which represents an 18.1% increase from the 3,671 case inventory at the close of FY 2010 and a 24.1% increase from the 3,496 case inventory at the close of FY 2007.

Figure 9 - Appellate Inventory FY 2007 - FY 2011

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ii. Appeal Receipts On the Rise

OFO received 5,176 appeals in FY 2011, representing a 13.9% increase from the 4,545 appeals filed in FY 2010. FY 2011 appeal receipts represented a 1% decrease from the 5,226 appeals received in FY 2007. In FY 2011, 29.7% of closed complaints were appealed, which was less than the 33.1% in FY 2007.

Figure 10 - Comparison of Appeals Receipts to Complaint Closures
FY 2007 - FY 2011

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iii. Appeal Closures Down

OFO closed a total of 4,510 appellate cases in FY 2011, slightly fewer than the 4,607 appellate cases closed in FY 2010. Of the FY 2011 closed cases, 2,793 (61.9%) alleged violations of Title VII; 1,212 (26.9%) involved the Rehabilitation Act; 1,084 (24.0%) alleged violations of the ADEA; and 16 (0.4%) involved the Equal Pay Act of 1963. In FY 2010, OFO closed a total of 4,607 appellate cases, of which 3,016 were Title VII cases (65.5%); 1,221 involved the Rehabilitation Act (26.5%); 1,068 alleged violations of the ADEA (23.2%); and 12 involved the Equal Pay Act of 1963 (0.3%).[20] See Figure 11 for the appeal closures from FY 2007 to FY 2011.

Figure 11 - Appeal Closures FY 2007 - FY 2011

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Table 17 below provides a breakdown by appeal type of all FY 2011 appellate receipts and closures.

Table 17 - Types of Receipts and Appeals FY 2011

In FY 2011, OFO closed 1,960 appeals addressing the merits of the underlying discrimination claims, and made a total of 87 findings of discrimination, which represents 4.4% of the total. By comparison, in FY 2010, OFO closed 1,848 appeals addressing the merits of the underlying discrimination claims, and made a total of 88 findings of discrimination, which represented 4.8% of the total. In FY 2011, OFO reversed 22.4% of the 2,128 appeals of procedural dismissals.

iv. Average Processing Time of Appeal Closures

During FY 2011 OFO closed substantially more aged appeals than in recent fiscal years, resulting in the increase to average processing time and a corresponding decrease in the average age of the pending inventory. The average processing time for appeal closures rose to 378 days in FY 2011, representing a 29.5% increase from 292 days in FY 2010 and a 64.3% increase from 230 days in FY 2007

OFO resolved 2,452 (54.4%) of the 4,510 appeals closed in FY 2011 within 180 days. The average age of the pending inventory at the end of FY 2011 was 284 days, a 20.7% decrease from the 358 day average age at the end of FY 2010 and a 6.9% decrease from the 305 day average age of the open inventory at the end of FY 2007.

Figure 12 - Average Processing Days on Appeal
FY 2007 - FY 2011

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v. Three Most Prevalent Bases and Issues on Appeal

Since FY 2007, reprisal and disability have been the top two bases alleged in closed appeals and since FY 2010, sex was the third most prevalent basis of discrimination alleged in closed appeals. Harassment, promotion, and removal were the three most prevalent issues of discrimination alleged in closed appeals.

vi. $9.2 Million Awarded on Appeal

In FY 2011, the $9.2 million in monetary benefits awarded in compliance with appellate decisions (including settlement agreements resolving appeals) increased by 73.6% from the $5.3 million awarded in FY 2010 and a 14.0% decrease from the $10.7 million awarded in FY 2007.

Figure 13 - Monetary Benefits Awarded from Appeals^[21]
FY 2007 - FY 2011 (In Millions of Dollars)

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vii. Training and Outreach Conducted By EEOC

In FY 2011, EEOC staff members informed a large number of federal employees of their rights and responsibilities under the EEO process, affirmative employment programs, and laws that the Commission enforces. EEOC's proactive prevention activities targeted multiple agencies, and provided agency managers and supervisors with a better understanding of how to prevent employment discrimination within their workplace. OFO staff members, as well as staff from various EEOC offices throughout the country provided these training sessions.

Specifically, staff members conducted 119 training sessions reaching 4,351 federal employees, including 154 new EEO counselors, 157 new EEO investigators, and 250 EEO professionals in affirmative employment programs.

In an ongoing effort to provide the federal sector EEO community and stakeholders with timely and accurate information, OFO staff members responded to more than 8,168 calls concerning the federal sector EEO complaint process.

The Commission's training and outreach information can be found at http://www.eeoc.gov/federal/training/index.cfm.

Section C - Responsiveness and Legal Compliance

The sixth MD-715 element, "Responsiveness and Legal Compliance," encompasses agencies' timely filing of required reports with EEOC and timely compliance with EEOC's issued orders.

1. 90% of Submitted EEOC Form 462 Reports Were Timely

EEOC regulation 29 C.F.R. § 1614.602(a) requires agencies to report to the EEOC information concerning pre-complaint counseling, ADR, and the status, processing, and disposition of complaints at such times and in such manner as the Commission prescribes.

The requirement to file an EEOC Form 462 Report applies to all federal agencies and departments covered by 29 C.F.R. Part 1614, as defined in 29 C.F.R. § 1614.103(b). This includes Executive agencies as defined in 5 U.S.C. 105, military departments as defined in 5 U.S.C. 102, the Government Printing Office, the Postal Rate Commission, the Smithsonian Institution, the Tennessee Valley Authority, the United States Postal Service, and those units of the judicial branch of the federal government having positions in the competitive service. All covered agencies must file Form 462 Reports with the Commission. EEOC Form 462 Reports are due on or before October 31^st of each year.

In FY 2011, 82 or 90.1% of the 91 agencies (with 100 or more employees) timely submitted the EEOC Form 462 Report, down from the 92% timely submitted in FY 2010. In FY 2008 EEOC made the report submission paperless for agencies by assigning a unique personal identification number (PIN) to agency EEO Directors for use as their signatures. The PIN needed to be entered on the secure web site by the November 2^nd deadline to be considered timely.[22] See Appendix III for the list of agencies' FY 2011 report submission times.