JACQUELINE A. BERRIEN, Chair
CONSTANCE S. BARKER, Commissioner
CHAI R. FELDBLUM, Commissioner
VICTORIA A. LIPNIC, Commissioner
P. DAVID LOPEZ, General Counsel
PEGGY R. MASTROIANNI, Legal Counsel
BERNADETTE B. WILSON, Acting Executive Officer
This transcript was produced from a DVD provided by the Equal Employment Opportunity Commission.
AGENDA ITEM PAGE
9: 58 a. m.
CHAIR BERRIEN: Good morning everyone. The meeting will now come to order. Thank you for being here everyone. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting. At this time, I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since the last meeting, Ms. Wilson.
MS. WILSON: Good morning. And before I begin, is there anyone in need of sign language interpreter services?Okay, good morning again Madam Chair, Commissioners, General Counsel, Legal Counsel. I'm Bernadette Wilson from the Executive Secretariat. We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting and we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode. I would also like to remind the audience that in case of emergency, there are exit doors to the right and left as you exit this room. Additionally, the rest rooms are down the hall to the right and left of the elevators.
During the period February 16, 2013 through March 19, 2013, the Commission acted on four items by notation vote:
Approved amicus participation in one (1) case;
Disapproved participation in two (2) cases;
And approved a resolution in memory of Ronald Dean.
CHAIR BERRIEN: Thank you Ms. Wilson. And welcome everyone to today's Commission meeting on the Development of the EEOC's Quality Control Plan for Investigations and Conciliations.
As you have noticed already, we are departing from our custom today. For those who are on the phone and may not have a visual, all Members of the Commission and I are sitting in our regular spots -- are not sitting in our regular spots. We begin with the General Counsel and Legal Counsel Mastroianni are sitting in a roundtable format and we'll have our panelists who are present in Washington join us. We did this for the first time last July during development of the Strategic Enforcement Plan and we decided to do it again today in an effort to promote a more free-flowing conversation with our panelists.
However, we've also made two other modifications today. First, our Legal Counsel Peggy Mastroianni graciously accepted my invitation to facilitate today's discussion. So I will be free to engage more fully in the conversation. However, nature has made sure that I might not be free to engage in the conversation since I'm losing my voice. But we will see how long it will last.
I'm grateful that Peggy, as always, will monitor our time and serve as our timekeeper, but she will keep the conversation flowing as freely as possible and help to facilitate a roundtable discussion. And second, with the exception of those of us who are in Washington, D. C. , most participants in this meeting are participating virtually. We've done this in an effort to minimize expenses at a time of extraordinary fiscal constraint. We are grateful for our IT staff who have worked hard to try to make this possible. And we appreciate the accommodation and the participation of those who are participating or will participate throughout the day by videoteleconference from EEOC offices or by telephone.
Those participating in person are either EEOC staff located in the Headquarters in Washington, D. C. , or are external participants who have traveled here at their own expense. We thank all of you for participating in whatever form that you are able today.
Finally, to minimize staff time spent preparing for this meeting, while our participants are certainly prepared and have given much thought to their participation today; we did not require written statements to be submitted in advance of the meeting. Some have chosen to do so, however.
Our IT staff is on hand in case of any technical difficulties. Please alert a member of my staff, either Joi Chaney or Cathy Ventrell-Monsees, immediately if you have problems with either a telephone or VTC connection and we will do everything that we can to correct it as quickly as possible.
Thanks to all of you for accommodating and participating in this unusual meeting format and thank you Peggy for managing and agreeing to serve as our moderator today.
Everyone on the Commission and the three roundtable panelist participants have agreed to forego opening statements so that we can move into the discussion quickly.
For the record, I will simply summarize the purpose of today's meeting. We're here today to focus on Development of a Quality Control Plan, or QCP, for Investigations and Conciliations. As a reminder, in Fiscal Year 2013, our Strategic Plan indicates that we will review, and if necessary, revise the indicia used to measure the quality of our investigations and conciliations. In Fiscal Year 2014, we will begin measuring our investigations and conciliations against that standard to create a baseline. And in Fiscal Years 2015 and 2016, we are to ensure that a to be determined percentage of our investigations and conciliations meet or exceed the quality standards. Currently, we are completing our first task, developing the Quality Control Plan or QCP. And I thank all of you for being a part of this meeting to focus on that topic today.
I appointed an internal work group to develop a draft QCP for Commission consideration. The work group consists of a dozen, roughly a dozen experienced and very talented EEOC staff and it benefits from the extraordinary leadership of three co-chairs: Commissioner Chai Feldblum, Chicago District Director Jack Rowe; and Dallas District Director Janet Elizondo. And I will say it again later in the meeting, but I'm extremely grateful to all of them for their leadership of the work group.
The work group solicited written input from Agency staff and external stakeholders in February of this year. And today, we have invited three roundtables of panelists to participate in a public dialogue that will address the current status of EEOC investigations and conciliations addressing both where the Agency is excelling and where the Agency would benefit from improvements within the context of our limited fiscal resources, and ultimately help us determine quality indicia for EEOC investigations and conciliations going forward.
The task before us is not small. The task before us is novel in some respects, but we are all looking forward to engaging with you and I look forward to engaging with my colleagues on this important subject. Again, thank you for being here and I'd now like to turn this over to EEOC Legal Counsel and our moderator for today, Peggy Mastroianni. Thank you Peggy.
MS. MASTROIANNI: Thank you Chair Berrien. I am very happy to be moderating today and my hope is that we talk directly and sincerely about how the Commission handles investigations and conciliations. I also want to thank the Commissioners and the General Counsel and all the participants today for your efforts in preparing for this meeting, especially those on the West Coast. We will have some logistical, as well as substantive challenges today, but I think we're going to meet them all. I think we're quite up to the task.
The Chair has already reviewed our purpose for being here, so let me go right to logistics. We're going to have three roundtables. The first -- in my script here, it says approximately 10 o'clock. It's going to be approximately 10: 10 I think, is going to be with our frontline staff, in other words, the soldiers, the people who are the backbone of the Commission. And the second is going to be at 11: 30 with private practitioners with stakeholders who we're very interested in hearing from. And the third, at 2 p. m. is going to be with EEOC management staff. Each panel is going to be an hour and 20 minutes. We'll have a lunch break at approximately, somewhere around 1 o'clock.
Please note that our Dallas District Director and the Quality Control Plan Co-Chair, Janet Elizondo, is going to be participating via video and our Chicago District Director, Jack Rowe, who is also a Co-Chair of the QCP is going to be participating by phone.
Although written statements are not required, some participants have prepared such statements and have asked that they be placed on the public website and in the meeting record. And that will happen at the conclusion of this meeting.
So, we're going to begin immediately with questions in order of seniority with the Chair graciously going last. And each Commissioner and each QCP Co-chair will be allowed one question, at least one question and we expect to have about ten minutes of discussion for each of those questions.
Once a question is asked, I'm going to invite all the participants and the participants includes the Commissioners as well, and the Chair and the Co-chairs. I will ask them, all participants, to indicate whether they want to be placed in a queue to respond. If you're on the phone or if you're on video and I see you out there, please state your name when you queue up. And I'm hoping -- the reason we're going to have a queue is so that we don't all talk over each other, obviously. And you can add yourself to the queue at any time.
For those of you who have been to Commission meetings before, I'm usually operating a time machine and it's pretty strict. Today, we want to have a free-flowing conversation, so if the discussion is really good we won't end it in exactly ten minutes. On the other hand, we may end some questions a little bit earlier. We'll be flexible. And where possible, I would ask all the participants to try to build on the answers of your fellow participants so we're not all repeating each other and so the discussion can advance. In other words, what we want to do is really talk to each other today.
And so I think we are ready to begin with the first roundtable. And that is the one with EEOC frontline staff. And I'm going to ask those of you, we have one person on the phone, the rest on video, please say hello when I say your name so that I know that you can hear us. We have with us today first Shannon Breen Else. She is the Lead Systemic Investigator in the EEOC Denver Office. Shannon?
MS. ELSE: Good morning.
MS. MASTROIANNI: Where are you, Shannon?
MS. ELSE: I'm right here. Good morning.
MS. MASTROIANNI: Great, okay. Thank you. Melanie Breen, Enforcement Supervisor in the Cincinnati Area Office.
MS. BREEN: Good morning, everyone.
MS. MASTROIANNI: Hi, Melanie. Matthew Cleman, Investigator in the Seattle Field Office and the current Labor Member of the San Francisco District Labor Management Forum. He's joining us very early in the morning on the West Coast. Matthew?
MR. CLEMAN: Good morning from Seattle.
MS. MASTROIANNI: Glad to have you here.
MR. CLEMAN: Good morning.
MS. MASTROIANNI: We have one person by phone, as I said. That's John Douglas. He's an Investigator in the New York District Office. John?
MR. DOUGLAS: Good morning.
MS. MASTROIANNI: Hi. Your voice is coming out of the ceiling. Very exciting.
MR. DOUGLAS: That's wonderful.
MS. MASTROIANNI: Karen McCabe, Investigator in the Philadelphia District Office.
MS. McCABE: Good morning.
MS. MASTROIANNI: Hi Karen.
MS. McCABE: Hi.
MS. MASTROIANNI: And Sean Oliveira, Investigator in the St. Louis Office, formerly in the New York Office. He is joining us via video. Sean?
MR. OLIVEIRA: Good morning. Hi everybody.
MS. MASTROIANNI: Okay. Thank you all. And I also want to mention that Sean and Shannon are both in the QCP Work Group and so some of you may be already -- have talked to them on the subjects that we're covering today. Okay, thank you all for being here virtually. And Commissioner Barker, would you like to ask the first question?
COMMISSIONER BARKER: Certainly. Good morning. Thanks to everybody for being here and especially for the Seattle Office, Matthew, for being with us so early.
I'm sure you have all had an opportunity to read the comments that were submitted. And there were a lot of comments from both plaintiff's attorneys and defense attorneys expressing concern about being able to communicate with local offices, particularly being able to get investigators on the phone or other folks they needed to talk to and kind of frustration over not having like a direct line or maybe an email address. And also, there were some suggestions that we needed to maybe come up with a plan to have a regular plan for making contact with charging parties at different times. I wanted to get your reactions to the concerns expressed about not being able to reach investigators directly or in a timely way or not getting response from them in a timely way. Any of you have reactions to that?
MS. MASTROIANNI: Is there anybody who is interested in addressing this question?Can you just give me your name if you are?Come on folks, don't be shy.
MS. McCABE: Karen McCabe. I'll answer.
MS. MASTROIANNI: Thanks Karen.
MS. McCABE: With regards to that, I think the attorneys need to understand that we're not always in our offices. In the Philadelphia Office and I believe throughout the rest of the Philadelphia District, everybody has a direct line. All of our letters have our direct lines on it. Some people put their email addresses on their letters as well. I personally do. I'd rather communicate through email. Sometimes it's a lot quicker, especially if you're telecommuting. It's easier to respond to an email the same day as opposed to the next day when you come back in and maybe have 10, 15 other phone messages to respond to as well. With regards to regular contact, sometimes that's hard. In our office, we generally right now have about 100 to 115 cases in our inventory and trying to have regular contact with everybody would take so much time away from being able to work on the actual investigations. And sometimes that's actually what slows us down in our process and delays the investigative time is because you spend so much time returning phone calls and emails and giving status updates to charging parties or attorneys or respondents.
COMMISSIONER BARKER: So Karen, if I understand what you're saying, you think it's not a problem because in your office at least, when you send out a letter you provide your direct line and then honestly you don't have time to respond to charging parties any more than you already are?
MS. McCABE: I want to say that I don't think it's a problem. I think it's something that can become difficult in keeping up on with the caseload that most investigators have at this time. I mean I know in our office we try to make every effort to get back to somebody within one to two days. I've had occasions where somebody will call me ten times over two days with a holiday in between not thinking oh, maybe this person is on vacation. I know we try to update our voice messages if we're away, but that's not always possible, especially if you're out sick. So the timeframe of calling everybody back immediately isn't necessarily feasible and I don't think sometimes the charging parties or their attorneys, whether respondent's attorneys grasp that.
COMMISSIONER BARKER: Karen, let me ask you something. You said something interesting because you said one of the problems is that people don't understand that investigators aren't always in their offices. They're out in the field investigating.
MS. McCABE: Correct.
COMMISSIONER BARKER: And it seems to me that more and more our model for investigators is to get out of their offices and get out into community and do the investigations that have to be done out of the office because more and more we're going to have charging parties who for different reasons, charging parties and witnesses, more and more for different reasons won't be coming into our bricks and mortar buildings in some -- in the middle of downtown wherever in a federal building where you have to go past security. So I'm wondering what you think about more and more in the private sector employees with a certain level of responsibility carry Blackberries and they're not expected to be in their offices and we don't really care if they're in their offices or not, but we need to communicate with them. Do you think that we ought to go more and more to a model of Blackberries or iPhone, some sort of communication device where when you're out in the field if someone is trying to reach you and you know that it's a call you take and want to take, you know, you get it then and not four hours later or the next day or get caught up in paperwork and can't return that call for several days. That sounds to me like a really old work model to me. I can remember in the '70s when I was practicing as an attorney, the way we practiced was we'd be in court and we'd come back and we'd have a stack of pink notes that we had a call. Well now, we take our Blackberry support with us and we step out and make those phone calls immediately. So I'm wondering if we don't need to provide better technology to our investigators so that they can stay on top of the phone calls that they know they need to take which I understand what you're saying about you get some people who call you too much and you know if you see that number on the phone, okay, I've talked to her five times already today, I don't need to talk to her again. But there are phone calls you need to take and there are phones I think you would want to know about right then. Are we not doing what we need to do for investigators?Are we not providing you the technology you need so you can respond immediately to the phone calls you need to respond to?
MR. OLIVEIRA: This is Sean Oliveira. Can you add me to the queue?
MS. MASTROIANNI: Sure, Sean.
MR. OLIVEIRA: Okay, thank you.
MS. McCABE: To answer that question, definitely yes. I think we're not utilizing technology as much as we can. I know there's been some questionnaires that have been going out or surveys about with regards to what type of cell phones people have and everything like that. But in the same respect, I don't think it's fair to put on the investigators the expense if that's what they're moving towards of using their own technology only because -- well, I mean for most of us, we're GS-12s or below for the investigators and everything, so not everybody can afford the data plans that they need or the minutes that may be required with regards to that. And it also becomes an issue of people calling you on the weekends or later at night when you're not on duty. So if that's the case, if the Commission was willing to provide investigators with a Blackberry or an iPhone that was specifically for work-related functions, then yes, I think that's a great idea.
MS. MASTROIANNI: Sean, do you want to chime in here?
MR. OLIVEIRA: Yes, I would. Thank you. Good morning esteemed Commissioners and colleagues. I wanted to first thank everybody for allowing me to be a part of this. I think certainly when we discuss quality communication; clear communication with all parties involved is something that we need to be doing. The question is one of resources and time which I think is what we've been discussing, so I just sort of wanted to clear that up right away.
I think it would help us to talk about different types of communication. There are communication where if somebody just wants an update or they have a very quick question or they have some sort of question that could lead to if they get an investigator on the phone and somebody says I just want an update on my case, and you sort of call them and say okay, well, I've received the position statement, I'm reviewing it. And then that leads to 150 other questions. And that takes up -- it can take up a substantial amount of time, if I sort of take every single call that comes in every single day I'm going to be on the phone all day long. I'm not doing any investigating, sort of actually doing therapy work sometimes. So I don't know if there's a way and I'm not sure -- while I like the idea of getting a Blackberry or an iPhone, I'm not sure that that would help that particular problem. We are collecting email addresses and I think probably at least some of us are trying to communicate on email as much as possible, but we do have a system; we have IMS where if we were putting actions in the IMS more often and if people could actually get access to that online or where our front staff people who are answering sort of the general line can just look it up on IMS, they could tell somebody your position statement was -- the position statement was just received and the investigator has typed in here that they're currently reviewing it. And then if we limit our sort of communication to more substantive questions I think that might help the problem. Thank you.
MS. MASTROIANNI: Thank you Commissioner. We'll move on now and I forgot to introduce one person on video and that is -- I told you that Janet Elizondo is attending by video, but I didn't give her a chance to say hi. So Janet?
MS. ELIZONDO: Good morning. Hi. And, yes, I'm here. Thank you very much.
COMMISSIONER BARKER: Excuse me, just a question. How much time do we have? We don't have any time monitors, so we kind of got lost in the time.
MS. MASTROIANNI: It's about ten minutes a question. It's about ten minutes a question.
COMMISSIONER BARKER: Thank you ma'am.
COMMISSIONER FELDBLUM: Well, then I'd like to use the first part of my time then to see if anyone else here wants to respond to Commissioner Barker’s -- the conversation that just happened.
MS. MASTROIANNI: Anybody?
COMMISSIONER FELDBLUM: I'm sorry, does anyone else who is on VTC or phone right now like to respond to the conversation that just happened because if so, I'll just give that time so that people can respond.
MS. BREEN: Yes, I do, please,
Melanie would like to.
MS. MASTROIANNI: Melanie? Okay, go ahead Melanie.
MS. BREEN: Well, I think that pretty much most investigators are overwhelmed. I do think we have the obligation that even if we can't take calls all of the time which I think it's good to take calls selectively if you’re in the middle of doing analysis on an A case and you have a deadline, then maybe you would let the phone ring, but I think it's important that at some point during the day we're checking calls, returning them. It gives everyone the sense of, they do care what's going on with my case. And it helps us prioritize things.
So, I also think that there's times when we don't take those calls that we're actually missing out on key information that we may be seeking in our investigation. Maybe they're even calling to tell us we've resolved a case, we're ready to close it, here's what we've settled for or we want to start settlement discussions with the Commission. So I think it is important that we do get to those calls if we can't take it the day in question, I understand that with our resources, but I think customer service and us missing out on good information can be issues if we don't at least call people back.
MS. MASTROIANNI: Thanks Melanie. Anybody else including our attendee by phone? John?
MR. DOUGLAS: Can I make a short comment? This is John.
MS. MASTROIANNI: Sure John.
MR. DOUGLAS: I think it's important that we also -- Sean was talking about other types of communications and I know that we send out letters, for instance, when a charge is leaving mediation to the parties. And I think it's important to manage the expectations, especially of charging parties to give them a realistic expectation of when they can expect or not expect to hear from the investigator. Having said that, I think we have to make it a point when charging parties call the investigator to provide them with our direct number and our email to follow up in a reasonable manner.
MS. MASTROIANNI: Thanks John. Commissioner Feldblum would you like to move on to a new question?
COMMISSIONER FELDBLUM: Thanks so much. So following, continuing on the thing of building in the conversation of the importance of exchanging information, one of the things that was included in the 1995 directive that started our priority charge handling procedures was a direction from the Chair that charging parties and respondents should normally be provided with access upon request to the positions of the other. This exchange, including documents as appropriate, should permit the parties to narrow the issues, encourage them to resolve disputed facts and reduce the burden on the office in handling FOIA 83 document requests. So that was a directive from the Chair in 1995. I actually want to ask my question not on this, on all documents, but just simply on the communication that goes in the charge to the respondent and then the communication from the respondent in the position statement. And I'd like to hear from folks both about how you think we would be able to assess the quality of the charge, like did the respondent get enough information to be able to put in a good position statement?And then two, what are the pros and cons of not having as a quid pro quo then that position statement just normally just be able to be accessed by the charging party?Thank you.
MS. MASTROIANNI: Who is interested in addressing this question?Could you please give me your name?
MR. CLEMAN: Matthew Cleman.
MS. MASTROIANNI: Okay Matthew. Anybody else?Is there somebody else?
MS. BREEN: Melanie.
MS. MASTROIANNI: Melanie.
MS. McCABE: Karen McCabe.
MS. MASTROIANNI: Karen and Melanie.
MR. OLIVEIRA: Sean Oliveira.
MS. MASTROIANNI: Okay. Okay. This is a central question. Why don't we start with Matthew and then let me know if the rest of you, if you want to join the queue as well. Matthew?
This is a two-part subject. First of all, what information should be in the charge that would go to the respondent and then going the other direction what information from the respondent should go to the charging party?I hope I'm summarizing this accurately.
MS. MASTROIANNI: Yes.
MR. CLEMAN: Dealing with the first aspect, a charge of discrimination ought to identify enough information to state what the allegation is and the basis so the issue and the basis are identified and, where appropriate, which is usually identify comparators with enough specificity that the employer can understand and respond. So for example, I was employed as a painter. On or about March 15, I was discharged. The respondent said I was discharged for tardiness. I am aware of others who have been tardy and were not discharged around that same time. Those persons are of a different race than me. Therefore, I believe that I was terminated on the basis of my race. That's the basic outline of a charge. It's a simple matter then for the employer to say oh, well, let's check the time records. Oh, and they can tell us either yes, that does appear to be the case and we can explain that or it doesn't appear to be the case and we can't explain it right off. So the charge has to give information so that the employer can make sense of it and respond. I assume that we're all doing that.
Going the other direction, what information should be sent to the charging party, it sounds like the idea here would be to release perhaps the employer's position statement to the charging party and it's my view that while flexibility is key, and there might be times that would be all right to do, there are also times it would not be all right to do. So making it a general practice would be, in my view, a mistake. This is largely because most of our charging parties are not very sophisticated. And it would be tremendously unfair to deliver to them a detailed, careful, legal analysis of their case, citing case law that the charging party has no idea what this is and then bringing up all of the possible failings that the charging party has had throughout their whole career that might explain why they had the employment action that they had. This is just going to create problems when the charging party is unable to understand that information and who are they going to call for clarification?And who are they going to expect to straighten it out for them?The investigator, the investigator. And now we're in a position harkening about to our first question, what about quick response and meaningful response to inquiries. We're just increasing the difficulties that you would have. It's much better to filter that information to the charging party on a case-by-case basis so that the response makes sense to that individual charging party. And that's my thoughts.
MS. MASTROIANNI: Okay, moving on down the queue. Karen?
MS. McCABE: I agree with everything that was said to an extent. I think the communication starts at intake either in person or by phone, if it's something that's handled by mail. Generally, if it's an attorney prepared for charge, they have an attorney who understands that. Generally, in our office, when doing intake we go through -- give an overview of our process and how the charge will be handled almost to conclusion right up to if a not cause finding is issued or a probable cause finding is issued. So generally, I can speak for myself. I tell the charging party, because we send the position statement out in every case just about. Very rarely does it not get sent to the charging party. But I kind of guide them through that process to say don't look at the case law. Look at the specifics of how it relates to your allegations and respond to that. And again, like I said, all of our letters have our phone number on it at a minimum. I personally put my email address on it and you know, I tell them if they have any questions to give me a call. I'll even go so far as to say leave your question on my voicemail if you get it, this way if I get your voicemail, we're not kind of playing phone tag and I can get back to you with the specific information that you're looking for. We try to make ourselves available if they really don't understand the position statement to come in and speak with us and everything and we can kind of go through it there. We don't send the attachments or the exhibits. Generally, we can discuss an attachment. Say, for instance, it's a written warning where the person says I have no idea what that is, can you tell me what it's about?Or can you give it to me?We'll tell them we can't give you a copy, but we can discuss it with you and everything.
So for us, in our office, with the volume of cases that we have here, it's better to just send them the position statement and any sensitive information such as disabilities of other employees and the such, that's all redacted out and everything. But it does give them a chance to respond without necessarily having to have the investigator go through and do a summary and rewrite what's already written. So in our office it works great and everything, sending out the position statement, but again, we preface that in person or on the phone at intake to kind of explain the process and what to expect and how they should respond to that charge.
MS. MASTROIANNI: Thanks Karen. Melanie?
MS. BREEN: Hi. Yes, I’d just like to add something to what Sean had said. I completely agree there should be -- I don't think we should use vague and ambiguous charges. I think what happens when we do that we end up having to go back and possibly do interviews to obtain the information that we could have had in a position statement or even doing an RFI on B cases. And I think we can eliminate a lot of that work if the charge contains enough information for them to know who we're referring to when we talk about comparators. So I think we can avoid interviews and RFIs on B cases, if we do a good, solid charge.
And also, about releasing the position statements, when I started in the Phoenix District Office, we did do that and here we do not. And I think that we shouldn't for various reasons, but primarily the employers, what I have found since 1999 is that, the employers really doubt our neutrality as it is. And so sharing their responses, but not giving them anything from the charging party would confirm it for them. They believe that we give the charging parties the upper hand in a system that we tell them is neutral, that we're neutral fact finders. So I think that's one of the stronger points for not frequently or regularly distributing position statements to the charging parties.
MS. MASTROIANNI: Thanks Melanie, and just for the record, Melanie is now, she began in Phoenix, but she is now in the Cincinnati Office. Sean?
MR. OLIVEIRA: Hi. So I think one thing that we should sort of state right up front is that our administrative process is not a discovery process for the parties involved. And I agree 100 percent with what Melanie just said. Maybe passing on the position statement might help us, maybe, maybe not, but some people might think it might help us, it's sort of like if we gave the questionnaire and all the documents the charging party walked in the door with to the respondent. It's sort of like that we're suddenly making a discovery process. I think, for example, my practice is rather than send a position statement or anything like that and they don't do that here in St. Louis, I'll send a letter that says here's what respondent's main argument is so while I'm sort of saying here, let's set up a time to do a rebuttal, I'll put in the letter here's what respondent's main argument is, nothing detailed, just sort of a short paragraph, this is what their main argument is so that they're prepared and understand what the main argument is. It's sort of like drafting a charge for a respondent.
I do agree with everything that Matthew had said. I think the only thing that I might add to that is I think that comparables need to be named at least definitely in certain situations because in a company like say IBM or something like that, they're not going to actually -- it would be over burdensome probably for them to go through all of their time records to determine that kind of thing. Plus, it also sort of will get across to respondent that charging party isn't just saying I know of other comparables, but they actually have names and some evidence. So that's sort of all I wanted to say about that. Thank you.
MS. MASTROIANNI: Okay, thanks Sean. Shannon or John?
MS. ELSE: This is Shannon. First of all, I haven't spoken so I wanted to thank Madam Chair and the Commissioners and the other distinguished guests. Just a couple of things on those points. One is if the charge should indicate the issue and the basis of a charge, you can potentially give information such as their date of hire or what department or what position they're in. But if we're starting to name, specifically name individuals, you're opening them up for potential retaliation which is a difficult slope to be on.
Secondly, giving the position statement to the charging parties or sharing -- I've worked in several different Districts where they do it and they don't do it. There's pros and cons to both sides. My opinion is you leave it up to the staff at the field level to decide what they want to do. Each charging party is going to have a different sophistication level. The content of the position statement could explain a lot or maybe not a lot. And you're also going to have each -- the nature of the case is going to be different as well. So it should be left up to that investigator to decide if they need to share it or not. Thank you.
MS. MASTROIANNI: John, anything to add?
MR. DOUGLAS: No, I agree completely with Shannon. In our office, there's a lot of attorney-drafted charges. And so charging party legal representatives expect the position statement and we get complete answers. And we usually send a copy of the position statement because we're putting the burden of proof basically on the charging party. I think more rather than less is a good idea. There are exceptions, but I agree it should be up to the field staff.
MS. MASTROIANNI: John, for the record again here, John is speaking from New York where he's an investigator. John, if you could speak up a little bit more from here on that would be great.
MR. DOUGLAS: Sure.
MS. MASTROIANNI: Are we ready to move on Commissioner Feldblum?
COMMISSIONER FELDBLUM: I would just like to see if anyone wants to respond to anything that any of their colleagues just said, any idea that was raised?I just want to give anyone who is on this roundtable an opportunity to respond to something that they've heard if they want to.
MS. BREEN: I will briefly, if I can, please. I just wanted to say that I think that certainly people view cases in different ways. And some people use different processes than other offices and I think that's just kind of been the history with the Commission because I, too, have worked in three different offices. But I think one of the things that I hear from people is that the public, the representatives, they really want to see consistency that we are a unified Agency and that the guidance is followed in all offices and that the practices should be similar. We send a message that we're cohesive, that we're really utilizing the best practices. And I think that sends a message. That's just my view on it. Thanks.
COMMISSIONER FELDBLUM: Thank you Melanie.
MS. MASTROIANNI: Commissioners, Chair, is there anything that any of you want to say at this point?
Okay, let's move on then to Commissioner Lipnic.
COMMISSIONER LIPNIC: Thanks very much Peggy. Thanks so much to all of you who are participating and for your very forthright comments. Let me ask, and this is somewhat related to sort of this consistency question, but one of the commenters suggested that we should advise respondents as to whether a charge is categorized as A, B, or C under our charge handling procedures. And I'm wondering if all of you or any of you want to comment on what issues that presents for you in your work?
MS. MASTROIANNI: Who would like to respond to this question?
MR. OLIVEIRA: You can put me on. This is Sean again.
MS. MASTROIANNI: Sean, I knew I could count on you. Okay. Why don't you start?
MR. CLEMAN: Matthew Cleman as well, please.
MS. MASTROIANNI: Excuse me?Matthew, okay.
MS. McCABE: And Karen.
MS. MASTROIANNI: Okay. Anybody else?Okay. Let's start with Matthew and then you can add yourselves in -- excuse me, with Sean, and then you can add yourselves to the queue later.
MR. OLIVEIRA: So I guess I kind of have a question back at you about that. My view on that would be if we're going to say a B charge is going to be investigated this way and we're going to announce that publicly, then I would be totally against letting people know whether the charge is an A or a B, I guess. Because if it's a C, they'll know because they've got a right to sue. So I guess I would say if we're going to sort of set out in general this is how we're going to investigate this type of case, then I wouldn't -- because then they're going to say well you told me this was a B charge and now you're doing an on-site and it doesn't say here that you do on-sites on B charges. So that would be my first thought. But having said that, I think in a way I think many people already know, especially in the bar, already know whether a charge, in their District, whether a charge is an A or a B, based upon what we're doing. If we're doing an on-site, I think a lot of them have guessed that at that point this is an A. Or if it hasn't gone to ADR, that this is an A versus a B. So I'm not sure -- part of the game, I guess, if you want to call it a game, is that we come up with different ways of doing things and then they figure out strategies of figuring out how we're doing things. That's sort of jumbled all up, but that's basically my first thoughts on that. Thanks.
COMMISSIONER LIPNIC: This is Commissioner Lipnic. Before anyone else jumps in, so I guess that one of the concerns I have is sort of taking the gamesmanship out of this. And so I'm wondering when you're saying that in a lot of offices, particularly members of the bar they figure out this is how -- because of what our practice is, this must be an A, this must be a B. But do they know that directly?That's what I'm sort of -- when I talk to people around the country I run into a lot of people who say oh, I didn't know about this A, B, or C. What does it mean if it's a B. So it seems like there's a lot of guesswork on the part of the outside groups as well. But again, I'm interested in everyone's comments on this.
MS. MASTROIANNI: Matthew?
MR. CLEMAN: Good morning again. Regarding the A, B, or C categorization of charges, that's deliberative. That's our own thought process, our deliberative process. That is not for public consumption. It's privileged. It's confidential. It would be -- I couldn't disagree more with the idea of releasing that information to anybody outside EEOC. I think that would be just a terrible idea and those are my thoughts, very respectfully offered. Thank you.
MS. MASTROIANNI: Thanks Matthew. Should we move on to Karen, Commissioner? Karen McCabe.
MS. McCABE: Yes. I completely 100 percent agree with Matthew with what he said. The only other thing that I would add to that is by disclosing that information that it's an A or a B can also have effect on respondent's willingness to consider a settlement at any part during the investigative stage. So I think that can hinder -- because although you may be leaning towards not cause because you don't think you're going to have sufficient information to issue a probable cause finding, in cases where it is a B case and you talk to respondent and you can point out some of the issues you may have with their position, then they may be more apt to be willing to offer some type of settlement that makes the charging party happy and prevents further litigation down the road and the expense there. So if they know it's an A, they may be quick to settle so that there's no press release or any type of notice, if they're settling before the probable cause is issued and we go into conciliation and then on the flip side if it's a B, they may say oh, we'll take our chances with them taking us to court because we don't think it's going to go anywhere, so we're not even going to consider settlement. Thank you.
MS. MASTROIANNI: Thank you Karen.
COMMISSIONER LIPNIC: Do I have time for another question?
MS. MASTROIANNI: Sure.
COMMISSIONER LIPNIC: So, switching to another question, and this relates to when investigations are concluded and I wonder if any of you could comment about the standard that's used to determine when an investigation should be concluded and I sort of get different responses from people around the country about this, too, where they think in some offices that the case file is concluded relatively easy. And I'm saying easy, not that in any way implying that the investigation isn't complete, but that other offices will feel like they want to keep things open for a long time. So I guess just generally if you could comment about investigations and the conclusion of them.
MS. MASTROIANNI: Who would like to respond?
MR. OLIVEIRA: You can count on me again. This is Sean.
MS. MASTROIANNI: Okay. Anybody else?
MR. DOUGLAS: John Douglas.
MS. MASTROIANNI: Okay. We'll start with Sean.
MR. OLIVEIRA: Just sort of piggybacking on the last thing we were talking about real quickly, I think we should also remember that charge categorization is a fluid concept. So something may start out as a B and then become an A or it may start out as an A and become a B. So we should keep that in mind, too. It would be strange to tell somebody your charge is a B or to tell an attorney this charge is a B or this charge is an A and then call them up later and say oh, well, it just became a B or it just became an A again. So I just want to say that really quick.
As far as to the second question that was just asked, that's -- wow, that's a really difficult question. When is an investigation concluded?I would say this as a sort of rough guide; the investigation is concluded when you have received a single piece of evidence, verifiable evidence or credible evidence that convinces you or that basically increases the likelihood one way or another. So if charging party is alleging that they were discharged for tardiness due to their national origin, for example, and then you receive evidence that under the same decision maker, the day before that, somebody who isn't of that national origin was discharged for the same level of tardiness, that's a dismissal as far as I'm concerned. Likewise, if you're investigating and the respondent is saying this person was a horrible employee, poor performance, etcetera, etcetera, and they provide evidence that they received a bonus three days before they were fired or a month before they were fired, and during your investigation you found out that bonuses are only given to people who are doing -- as a way to tell people they're doing a great job, well, then you've just discovered pretext. So I would say it's concluded when you've gotten that one piece of evidence that really raises the likelihood one way or another. Or, when there's just absolutely -- so, for example, it may be a dismissal because there's just no possibility of getting evidence one way or another. So hopefully that kind of answers what you were asking. Thank you.
MS. MASTROIANNI: John?
MR. DOUGLAS: Yes, it is such a -- it is really a decision for each investigator, but basically it's have you received sufficient information, whether it's testimony, whether it's documentation that allows you to make a determination, allows you to make an accurate analysis and sometimes the last piece is a credibility assessment. Sometimes it's other material. But as long as you can -- I think an investigation is completed when the investigator can articulate an accurate analysis of the facts and a reasonable conclusion and that differs obviously for each case.
MS. MASTROIANNI: Okay, I think we will -- did you have any response?I think we will move on now -- is Jack Rowe on the phone?Jack?
MR. ROWE: He is. Good morning.
MS. MASTROIANNI: Jack, can you speak up a bit?This is Jack Rowe, Director of the Chicago District Office, and a Co-chair of the QCP. And I should tell you I'm not managing time well enough, so we have to move with dispatch. Okay, it's your turn Jack.
MR. ROWE: Thanks Peggy. I have just a short question, but I think it kind of surprises me that we have not discussed this piece of the question before. I'd like to know from the panel their views on whether a --
MS. MASTROIANNI: Jack, Jack?
MR. ROWE: Yes.
MS. MASTROIANNI: Could you speak louder, please?
MR. ROWE: Of course.
MS. MASTROIANNI: Thank you. That's better.
MR. ROWE: I would like to know if in their judgment, result plays into the question of whether a quality investigation has been done?
MS. MASTROIANNI: Okay, the question is whether the result determines whether -- wait, repeat that again, Jack. I don't want to get it wrong.
MR. ROWE: I would like to know their views as to whether in making a judgment whether this has been a quality investigation or not, whether the results of the investigation play into that question?
MS. MASTROIANNI: Thank you Jack. Who would like to address this?By results, do you mean cause, no cause?
MR. ROWE: Well, I think that's a part of the question is what results would make a difference?It ranges all the way from a litigation vehicle for a huge class case to an individual charge where cause is found in circumstances where otherwise it might be dismissed. Everything that the panelists think of as a positive result from a mission standpoint.
MS. MASTROIANNI: Okay. Who would like to address this?
MR. CLEMAN: Matthew Cleman.
MR. OLIVEIRA: Sean, please.
MS. ELSE: Shannon.
MS. MASTROIANNI: Let's start with Matthew.
MR. CLEMAN: Thank you. Good morning again. The question is whether the results of the investigation should be considered as a component of whether the investigation was quality?In short, a quality investigation is one where you are certain or sure enough that you made the right decision, whether that decision was that the case is no cause and is dismissed or gets a cause finding or becomes a litigation vehicle. As long as the information you gathered supports your decision, that's a quality investigation. And when I was new at EEOC and I have been investigating cases now for 23 years; when I was new I had the idea that, “Oh, this case was dismissed, I must have made a mistake because I somehow mistakenly thought that all charges, if properly investigated, would be cause cases, would be shown to be violations of our statutes. ” That's simply not true. And as I tell younger and newer investigators now, I tell them as long as you made the right decision, then that's what you were paid to do. So a good no cause case is just as quality as a good cause case. The key is that you made the right decision based on the evidence that you collected.
MS. MASTROIANNI: Thanks Matthew. Sean?
MR. OLIVEIRA: I guess the way I would look at this would be well, if I were a charging party or a respondent and somebody said to me, oh, well, we've done all this and we found all this evidence and etcetera and then we've decided or we've concluded X or Y and that was totally contrary to everything that we had found, then I wouldn't walk away believing I had a quality investigation. So to answer sort of quickly, I would say yes, the results -- the question of whether the result is a justifiable result and I would use the word justifiable or reasonable result, whether that's part of a quality investigation. I think the answer to that is yes. But I would couch it in terms of justifiability or reasonableness. And I wouldn't say that's all that goes into a quality investigation because, as you know, I could throw darts at a dart board and sometimes get it right. And so we wouldn't want that to be the only thing which I think is maybe been the problem in the past isthat our judgment of quality has been -- whether we met a bunch of deadlines and then there was one question about whether the result was reasonable or not. And so I would say that we should take emphasis when discussing quality off of just being results oriented. But that doesn't mean we want to throw the baby out with the bathwater. I think having a result that's reasonable and justifiable is part of a quality investigation. It's just not the only part. Thanks.
MS. MASTROIANNI: Anybody else?
MS. ELSE: Shannon. Yes, thank you. I think results do play a part. And it does make a difference specifically for priority and systemic cases that we need to give our more limited time and resources to those cases because we're having a greater impact on society with those cases. Thanks.
MS. MASTROIANNI: Thank you Shannon. And I should repeat Shannon is the Lead Systemic Investigator in Denver and has that systemic perspective. Anybody else?Okay. Then we will move on to Janet, another Co-chair of the Quality Group. Janet?
MS. ELIZONDO: Thank you Peggy. Thank you very much. And I'd like to thank Chair Berrien and the Commissioners for giving me the opportunity to be part of this very important effort. I think it's probably one of the most important efforts that the Commission has taken on and I truly appreciate the opportunity to be part of it. And I also want to thank all of the panel members who are here this morning. Your willingness to participate is very much appreciated and I appreciate the comments that you are providing us in this effort. My quick question is this. Most of us realize that the Commission has been dealing with tremendous challenges over the last several years, due to the budgetary environment that we've been operating in. It's impacted our available resources, while at the same time we're dealing with an ever-growing workload. Within that framework which we all know it may likely continue to exist for the foreseeable future; what type of deadlines or timeframes for completion of investigations or investigative activities would you consider should be a measure of quality?And having said that, can you conceive of a timeframe criteria which would take into account our limited resources and which would not be made unreachable if our resources continue to be insufficient as we think they are right now?And that's my question. Thank you.
MS. MASTROIANNI: Okay Janet. Who would like to respond?
MR. OLIVEIRA: You can add me. Sean.
COMMISSIONER FELDBLUM: I think you can just ask everyone.
MS. MASTROIANNI: Okay, Why don't we start with Sean and I encourage the rest of you to respond as well. Let's start with Sean.
MR. OLIVEIRA: “Whew! That's a hard question. Let me start off by saying that I somewhat disagree with coming up with a timeframe that’s conceivable -- given our current resources. And let me explain. I think if we're talking about quality, we need to fall on the sword here and say -- fall on our sword here and say look, we don't have the resources. If we agree that timeliness is an indicia of quality, we have to fall on the sword here and say we don't have the resources to perform that aspect of an investigation to do it right. I guess, when I was working in the private sector as a bookstore manager; it was at a bookstore where they're no longer around, and probably partially because they did stuff like this. They would do these things in retail where the corporate people would come down and do a walk through. And what would happen just prior to that walk through is everybody would work so hard to clean the store up. They would actually, managers would bring products home so that the corporate people wouldn't see that there was product laying around. And so of course what happened is the people in corporate would say oh, you're doing a great job. But they would continue to order books at the same level that they always continued to order them at because they thought we were selling them, when in fact, we were hiding them. And so that was bad for the business. And the business died as a result of that kind of practice as well as other practices. So I kind of have the exact same view here. I want to say well, no, we need to be reporting that we're not able to do things in a timely fashion, but we should say if we're going to say here's what a quality investigation is, well, a quality investigation is one in which, you dismiss it as soon as you know that it's unlikely a violation was going to occur and you find cause as soon as you know that it's likely a violation would occur. That time frame is going to be on a continuum. I don't think we can set actual dates. But if the file shows that the investigator sat on the case or the office sat on the case or it took three weeks to get from ADR to a supervisor or whatever, well, that's a failure. That's not quality. And I think us pointing at resources doesn't obviate that fact, that that's still not quality. And I think we need to say that and I think we need to say to whoever we're reporting whether we're doing quality investigations to or not, we need to say to them, look, the reason why we're not able to do this is because we don't have the resources. That way something can be done when it's possible about our current situation, but we need to be saying that, I think. That's my view. Thank you.
MS. MASTROIANNI: Okay, thank you Sean. Karen, you have anything…?
MS. McCABE: Okay, sure. I agree with regards to that. I think there is a lot of hiding going on. I think there's also a difference between -- it's my understanding and I know in our office there's not production standards with regards to the number of resolutions and everything, but then management is held to a number. They need to show so much is being done for the District Director and everything to get that outstanding and everything else. And the shortfall is is that we've had in the past the whole issue with overtime, allowing and permitting or whatever the terminology is for that where people were taking things home to try to keep up on things and then it becomes that slippery slope in which you did this last year, so we expect a little bit more this year and everything because obviously you could handle that. And it's becoming unreachable. And putting timeframes on everything is very tricky because you may have a case that's a B that as soon as you get the position statement in, you can look at it and make that determination as Sean has said and get it out. But then there's other times where it takes so much more and sometimes respondents they don't want to be forthcoming with all the information up front. So you've got to keep asking for it. You know it's there, but it's going to take time to get it. You can't say that it's not a quality investigation because it took a long time to get to what you knew was there anyway.
MS. MASTROIANNI: Okay, thank you Karen. And now Shannon, please?
MS. ELSE: Yes, thank you. I just wanted to mention that giving timeframes for completion of investigations it's extremely difficult. Just the factor of what we do, our investigations, it could be completely different if you have an individual case compared to a systemic case where you might have hundreds, if not thousands, of potential class members. The same goes for you're going to have possibly a different length of time for a hostile work environment case compared to a disability case. So each case is different so you need to factor that in.
Other factors that are well known is that at many times respondents do not cooperate with us where it could lead to subpoenas, potentially, or everyone including charging parties and respondents are requesting extensions. It's very difficult to set timeframes with what we have to work with. And with regards to, you know, -- I think Karen had mentioned management’s held to a production number, we need to shift that priority to work on the quality cases that lead us to the mission’s statement which is eradicating discrimination. Thank you.
MS. MASTROIANNI: Thank you Shannon. I don't hear anybody else.
MS. BREEN: Can I add something? --
MR. CLEMAN: This is Matthew. I'd like to comment.
MS. MASTROIANNI: Oh, sorry, okay, so let's start with Melanie and then Matthew.
MS. BREEN: Okay, so I'm adding on to what Shannon and some others have said, but I really do think that although there's many factors in our cases that are out of our control, respondent or even charging party cooperation, witnesses, those types of things, despite this in our limited resources, I think that timeframes are important. I'm not saying we would establish say, as I've seen some of the private participants say, that well within 120 days you should complete your investigation. I don’t think that’s how it works for us. Because, as Shannon mentioned, every case is different. And certainly, you're not going to apply the same standard to a B case as you would to a systemic case. But I think that as we work cases we should strive, particularly on our A cases to reach a determination within months, not years. I think that's important. And also, it's an opportunity to make an impact in the workplace with injunctive relief when we intervene timely. So I don't think it's just the individual A case. I think it's a workplace impact issue also. And I think the way you can do it is you can establish timelines throughout the investigation and say you know, the investigator might say well, I think I can get the interviews done and get the RFI drafted and out and back within eight weeks. So then that's kind of a goal that's flexible. If they come back and say these are the issues I've run into, that's fine. It's understandable as these are -- our cases are very dependent upon other people that are involved. It's not just always the investigators that can control these things. But I do believe timeframes are important to keep cases moving and going in the right direction.
MS. MASTROIANNI: Thank you. Matthew?
MR. CLEMAN: Good morning again. I wanted to say that any time there's a standard that's imposed and Shannon very bravely spoke about the production standards that exist for managers which inevitably get rolled down to the investigator to help the manager meet that goal. That's the way it's generally phrased. If there's a standard regarding timelines, that's going to be rolled down to the investigator as well. Now if an individual investigator has a problem, there's a problem with their speed or getting things done, deal with it. But if you put a timeline standard generally for cases, then the Agency is going to manage to that standard. They're going to manage to the standard and they'll find a way to get whatever percentage done in however many days and they'll do that at the expense of something else, something that we're currently doing will be abandoned to meet the new standard to which we'll be managing.
Which brings me to a very important subject that no one has mentioned. That's that we have very little staff left, even to work on the cases that we have in the way that we currently work on them. In our District, the San Francisco District, we should have about 40 investigators in our District. We handle many, many states here, parts of California, Nevada, all of Oregon, Washington, Idaho, Montana, and Alaska, the largest area of any office in the country. And instead of 40 investigators, we have about 20, about half of what we used to have even just a few years ago. And this sounds like okay, so now do what you're doing, but do it faster. We need more resources which means more people. If we don't have more people, there's no way we can do faster work. So those are my thoughts on that. Thank you.
MS. MASTROIANNI: Thank you Matthew. John did you have anything to add?
MR. DOUGLAS: I'll just add one comment to make it a full panel response. You have to even go back to -- you couldn't draft any type of timeline without considering that it starts with the filing of a charge and you would have to take into consideration the volume of intake inquiries that come into the offices and how each office is staffed in relation to that because you can't have some sort of uniform timelines knowing that offices who have vastly diminished staff are dealing with a higher volume of intake and it may not be the same across the country. So that's another thing to take into consideration.
MS. MASTROIANNI: Okay, thank you. We will now move on to the very patient Chair Berrien who is our last questioner for this panel.
CHAIR BERRIEN: This has been a great discussion and I want to thank you all for your engagement. It's terrific. I have two questions that I'm hoping to hear from you about before we move to our break. The first is case closures have been one of the measurements used by the EEOC for some time. This is an opportunity for us to reconsider how or whether case closures continue as one of our measurements. My question for this panel is what would you use instead of case closures to demonstrate that we've made progress in fulfilling the mission?And I can either ask the second question now or wait to hear.
MS. MASTROIANNI: Why don't you ask both Madam Chair.
CHAIR BERRIEN: Okay, my second question is both plaintiff and management bar representatives who submitted comments on the QCP have urged us to strive for more consistency across offices. You all represent offices that are in different parts of the country and have different numbers of employees so I'm very interested in hearing your feedback on this request for more consistency across the Agency. Melanie, you already anticipated that question, it seems, and have answered it. But I want to encourage anyone else who might have a view to weigh in as well.
MS. MASTROIANNI: Okay, who would like to respond to both or one of these questions?
MR. CLEMAN: Matthew Cleman, please.
MS. MASTROIANNI: Okay, Matthew. Anybody else?
Ms. McCabe: Karen
MS. ELSE: Shannon.
Ms. McCabe: Karen.
MS. MASTROIANNI: Okay, let's start with Matthew.
MR. CLEMAN: Thank you, again. I think I have something to offer that will address Madam Chair both of your questions. In recent years I had the privilege of being part of the new investigator training program in 2009 and 2010 when we hired a number of new investigators, quite a large number during those years. And my particular assignment was to present a module at new investigator training about how to conduct an effective investigative interview. And it was my hope in preparing that module and presenting it quite a few times that it would bring consistency in how we conducted our interviews which was our main way of gathering initial information. I wanted to bring consistency to the EEOC in that skill and how that was done. And every time I put on that module, people in the audience would have a similar objection to it. And they would say versions of this objection, "I don't think they'll let me do this back in my office. " "I don't think they'll let me do it this way. "And I heard that objection every single time. Now what I was teaching was asking some questions, questions like who, what and when, what happened, who did it, when was that?That seemed pretty obvious to me. But people objected to that on the grounds that their office wouldn't let them do it that way. And it wasn't until recently that I found out what people were trying to communicate with those objections. What they were objecting to was, if I asked those questions, I'll get information that will take longer for me to process. And when I get home to my office, I have to process my cases quickly and fast because I have to meet a production quota. That's what the people were trying to say. And it took me some time in talking to a number of people to find that out. It's the production quota that has been rolled down to the investigator that has prevented people from being open to the idea of asking who, what, and when which, of course, are the right questions to ask in any investigation. So this tyranny of a production quota has soured the ability of our investigators to focus on the actual facts of the case in favor of how can I get this case closed and get on to the next case and close the next one because that's what I'm being asked to do. So I'm very surprised and pleased to hear that there might be a search for an alternative measure of our work other than the number of case closures because the number of case closures has damaged the ability of our staff to be consistent and to ask the right questions that otherwise they might be doing. I'm just very happy to hear that this is even on the table. So thank you.
MS. MASTROIANNI: Thank you Matthew. Shannon?
MS. ELSE: Yes, thank you Madam Chair. I also agree that this is a great question. Using case closures as a measurement in my opinion you're discouraging quality work for investigators. They’re—as Matthew indicated, they're so worried about getting, making that production goal that, you know, they have everything else to do. They're overwhelmed. Each investigator has well over 100 cases per person plus intake, plus answering phone calls, incoming phone calls of individuals. I know of offices that do not have any administrative support whatsoever. I've been told that there's Grade 14 individuals working at the front desk of some offices. So having that consistency for each office is very difficult. Having that consistency with each office also we want to be able to improve and change and grow. So we need to figure out what's working here might not be working there, but let's try something new to get it done in an effective and quality way.
Another way that we can measure things is with equitable quality relief from individuals. Who are we impacting?How many people are we reaching?We need to change the environment to encourage and support what the investigators do. Because right now, they're drowning. Thank you.
MS. MASTROIANNI: Thank you Shannon.
MR. OLIVEIRA: Can you add Sean to the queue?
MS. MASTROIANNI: Sean, you go ahead, right now.
MR. OLIVEIRA: Okay, so there was no one before me?Thank you. So again, thanks for this question. It sort of gets at the heart of everything. The culture at the EEOC since I've been here whether they are great managers or poor managers, and I'm not going to name any names, but it's always been we need to get rid of aging cases. We need to close cases. We need to dismiss stuff. We need to. . the best of managers would say our merit resolutions are down. We need to get those up. So they were sort of more prioritized, but nevertheless, it still had to do with resolution. And we need more of it. And the inventory needs to be down. And on top of it, you need to meet all of these deadlines. It's a lot like being in grad school for those of you who went to grad school where you needed eight days a week and 40 hours a day in order to complete the tasks that were required and nobody was recognizing that you needed that. It's a lot like that.
On the sort of optimistic side of things, I think a clue to how to solve this problem is actually already in the SEP that we currently have. The SEP moves towards saying here are our priorities and if we say transparently across the board, here are our priorities. And of course, they're going to shift. It doesn't mean that we have to keep the same priorities all the time. But if it's being translated all the way down from the Chair to an investigator or to the administrative staff, these are our priorities and you will be judged or reviewed based upon how much you dedicate and how well you dedicate your time towards these priorities, then that's going to be -- that's going to have a profound impact upon what we do and upon how people are reviewed because let's not mince, there are places where people are being reviewed based upon how many closures -- it doesn't say that on the review, but it's clear that that's what's going on. There are certainly places like that, Districts where that's going on. So if everybody is being reviewed according to the priorities, as they're being sent down from Headquarters or wherever, plus the Districts' complement plans, then that culture will change that we currently have. And I think that answers towards consistency, too. If we're all consistently, each office is consistently spending their time in resources towards our priorities, then people will feel that things are consistently done even if the offices do things somewhat differently. And of course, I think we ought to foster -- I'm sorry --
MS. MASTROIANNI: Sean, I really appreciate your comments.
MR. OLIVEIRA: No problem. I'll stop.
MS. MASTROIANNI: Karen had wanted to say something. We're kind of running out of time here, that's why we're rushing. Karen?
MS. McCABE: Yes, sorry. I agree with everything everybody is saying. I think production standards is a big thing in a lot of offices where there's this expectation to close so many cases within the fiscal year. Madam Chair you had asked what other ways are out there that we could possibly look at and I don't know if maybe looking at the percentage, the overall percentage of reduction of the inventory calculating also in how much inventory came in within that fiscal year would be a way that we could measure that.
With regards to your question on consistency, I think on some respect there can be a baseline expectation of what needs to be done in every case at a minimum, something being out there to say that these are the things that will be done in every office and this is how I want to conduct it. And then these are the things that are subjective or can be altered based on the locality of the office and everything like that.
I know I attended a meeting where I think it was OPM or -- I'm sorry, I forget the office, that came in that does our quality reviews of our cases and one of the questions I had asked is, what is the minimum that has to be in the file that you're saying we did a good job or we met the expectation?And, the response I got was well, it varies. So at a minimum, there should be something that is the same across the board, across the country that we could say as long as all of these things are in the file, you at least hit the target and everything like that. So those things can be outlined maybe by the Chair and Headquarters and everything else that we could use as a guideline to process our investigations and which may actually help move things along because there are some offices where they'll beat a dead horse because there's always another question that you can ask. And it's whether or not those other questions are going to influence or change the outcome of our determination. And I think some people are afraid to either jump to one side or the other, cause or not cause, out of that fear that we might have missed something.
MS. MASTROIANNI: Thank you.
MS. McCABE: Or that it's going to come back to haunt us.
MS. MASTROIANNI: Thank you. Melanie, do you have a brief, anything very brief to add?Melanie?
MS. BREEN: No, I don't. Thank you.
MS. MASTROIANNI: Thank you, John?
MR. DOUGLAS: No, thank you.
MS. MASTROIANNI: Okay, well, this means Karen you had the last word. I want to thank you. I think you really did, this panel, the six of you really did the Commission a great service today. And I think -- well, you make us very, very proud. Thank you.
CHAIR BERRIEN: Absolutely, thank you. I believe now that we will break for ten minutes and resume -- I'm sorry Peggy, do you know when. . ?
MS. MASTROIANNI: That means that we will resume at 11: 40.
CHAIR BERRIEN: Thank you all. And Matthew I'm glad that you're someplace known for its coffee given your early rising.
Thank you all very much.
(Whereupon, the meeting in the above-entitled matter went off the record and resumed after a short break. )
CHAIR BERRIEN: Okay, we're going to call the meeting back to order and I will turn immediately to Peggy Mastroianni.
MS. MASTROIANNI: Welcome, all. We'll do introductions in a moment. Bernadette Wilson has an announcement to make.
MS. WILSON: Yes, we want to find out if there's anyone in need of sign language interpreter services?
MS. MASTROIANNI: There does not appear to be anyone who needs sign language interpreter services.
MS. WILSON: Okay.
MS. MASTROIANNI: I would also remind you if your mic isn't on, you may want to put it on. First, I will make introductions. This is Panel II of three panels. And I hope everybody who is on this panel was able to listen to the first panel which was fantastic. And we had great people from the Commission, line people who were doing our work.
We have with us on this panel, first, and please acknowledge who you are when I introduce you. Linda Burwell, who is a partner in Nemeth Burwell, representing employers. And welcome to you Linda. Dan Kohrman, Vice President for Legislation and Public Policy at NELA. Welcome Dan. And for anybody who does not know, NELA is an association of plaintiff's counsel. Elizabeth Kristen who is joining us by video, she is Director of the Gender Equity and LGBT Program at the Legal Aid Society Employment Law Center. Elizabeth, if you could just say one sentence of introduction. I have just learned that in order for you to be highlighted on the video, you've got speak a whole sentence.
MS. KRISTEN: And you know I want to be highlighted on the video. This is Elizabeth Kristen. And I am here with my law clerk, Alex Bonilla, who is a recent Boalt graduate.
MS. MASTROIANNI: Welcome Elizabeth. Joyce Margulies, Principal of Margulies Law Consulting, providing legal advice to businesses. Joyce, great to see you. Lorene Schaefer who is a full-time neutral in the Workplace Investigations Group, and joining us in person as well. And another video attendee, Mary Anne Sedey, partner in Sedey Harper, representing employees and past president of NELA. Mary Anne, say a sentence.
MS. SEDEY: Hi, everybody. I'm so happy to have the opportunity to talk with you all again. Thank you.
MS. MASTROIANNI: And finally, Rae Vann who is in solitary glory on this side of the table. And Rae is General Counsel of Equal Employment Advisory Council which is a nationwide association of employers. So welcome to you all. Some of you are new to testifying in front of the Commission, but quite a few of you are veterans and we'll follow the same format about ten minutes per question. And we will start with Commissioner Barker.
COMMISSIONER BARKER: Good morning. I now have a mic that works. Nice to see you all and thank you for taking the time to submit written comments. There were some excellent comments that were submitted and some of you are familiar faces and welcome back. What I'd like to do because I think your comments are so excellent and I think you can speak for yourselves is, instead of asking you questions, just make a comment about the last presentation. And I know we are all here to look at setting quality measures for the EEOC and what's appropriate. But honestly, I have to say that after listening to the first panel, my takeaway from all of this is a continuing concern I've had which is, no matter what quality controls we put on our investigators, the bottom line is our intake people and our investigators are as Peggy said, they are our core employees. They do the core mission. And I really think that we need to look long and hard at seeing if we can't make a major shift in our resources so that our staff, our offices are fully staffed with investigators and resources. And I know that's going to mean, that would mean changes to the rest of the Commission. But, when a company is about to go under, they have to look at what is their core and what do they have to do to keep the doors open. And for us, to me, that's our intake people and our investigators. And these people were very gracious this morning. But the bottom line is, we don't have enough investigators. Almost every office, maybe every office is understaffed with investigators and intake people. And certainly understaffed in the appropriate bilingual investigators and intake people. And I really think it might be time for us to take a look at the Commission as a whole and say, isn't it time for us to make a major shift and make sure that that level of employee that is so critical to us, those people are fully staffed so they can do the job they need to do and then we put whatever qualitative measures we want to put on them. But it's awfully hard to impose those on these folks right now when they are so overworked. And I hear that at every office I've visited, so I don't think these people are an exception. That's all I have to say. Peggy, I waive the rest of my time.
MS. MASTROIANNI: Any comments?
MS. MARGULIES: I think one of your questions, Commissioner Barker, was what do you think? And I was first of all very impressed by the group and everything they had to say. I also was interested that there were differing views on different issues, some of which are very important to me. And I wanted to make some comments on that. First of all, the first question had to do in the end with online and how do you communicate and all of that. It seemed to me that the online issue is a huge one that contributed to efficiency. Just listening to the people talk, it seemed to me that they were spending a lot of time on the telephone and a lot of time returning phone calls. And we all know the quick question definitely leads to huge conversations. To be able to do things online and allow people to check information online, this is something Cathy Ventrell-Monsees had mentioned to me as a possibility. And after hearing everybody here speak, I thought that was absolutely brilliant. And the more we can do to make that happen, I think the better it would be. Communication by email I think would be great.
Now I know there's a lot to be said for back and forth and I talked briefly to David about on-sites and the comments from somebody that they were out of the office a lot doing field investigations. Frankly, I think that in many cases is a waste of time. One of the measure of quality, I think, one of the measures in some of the offices is how many on-sites have you done this year?I think that's a pretty poor measure. What I would love to see is first of all consistency and also process, develop a consistent process with criteria that people can follow. In other words, take a deep breath, invest the time upfront in developing that. I totally believe in consistency in 90 percent of what the Agency does, so there are no back and forth about do we do this, do we do that?You've got guidance on it. So consistency, process, best practices from the offices. Use ADR not only at the intake stage and only for B charges. Expand ADR. And then measure results and I think there are measures other than how many of this did I do, how many of that did I do?The measures could be, did I follow the process?And I think Rae, you had the idea of audits. And I realize time is a major problem. Who’s going to do the audit?Who’s going to do the best practice? I know those are big issues.
Another possible measure of quality is results. In the no cause, you get requests for files. How many of those went to litigation?What was the result of the litigation?In the cause findings that you don't litigate, did somebody else litigate?What was the outcome?If you litigated, what was the outcome of that?And then look back and see what led to that result, okay.
MS. MASTROIANNI: Mary Anne or Elizabeth, do you have anything to add at this point?
MS. SEDEY: Yes, I want to add another concept to the discussion and that is the concept of deterrence or prevention. I mean if you all were fully staffed and if there were twice as many people in the private bar as there are doing what we do, we could not possibly handle everybody's problem. And so I guess one of the questions for me and one of the central questions and I do believe it's related to the issue of quality is how do we do our work and how do you do your work in a way that sends a message loud and clear about what the law requires and what the Agency is doing to make sure that employers comply with law.
And you know, I've always had to feel as a private practitioner that deterrence was a huge part of my job because there aren't enough of me to go around and there never are going to be. So to me, that gets to a number of issues. And one of them is what I consider a serious problem which is this business that we find cause in only approximately five percent of the cases. I think that causes enormous cynicism out there on the part of the judiciary, the employers. I can't tell you the number of human resources people and management lawyers who sort of kind of laugh at the notion of the EEOC charge because they really have bought the notion that only five percent of those are really meritorious. As a private practitioner, I litigate no cause cases to good verdicts all the time and most of the people that are part of our bar would say that as well.
So I really want to encourage you to think about something a little different in terms of how you keep track of your results. You know, every case that is mediated and resolved and every case that is conciliated and resolved, those are things that you ought to be talking loud and clear about. I also think it's important that when you do find cause, you talk about that as well. And I think you really need to consider this question of what a dismissal means and maybe some other thing other than simply dismissing cases where honestly you haven't done an investigation and you really don't know one way or the other. So those are just some thoughts I wanted to share.
MS. MASTROIANNI: Dan?
MS. KRISTEN: This is Elizabeth, if I could just jump in here, if that's -- it's a little hard to tell on videoconference, but hopefully this is appropriate.
MS. MASTROIANNI: That's fine. Elizabeth.
MS. KRISTEN: So I just wanted to thank Commissioner Barker for acknowledging the frontline investigators and the incredible hard work that they do. And I feel privileged to work with the very capable investigators at the EEOC and while our state agency has a similar function I find that the EEOC investigators are head and shoulders above our state agency counterparts. And I know that they are really struggling with the incredible crushing workload that they are dealing with. And I think that the concept that I think would be the number one concept to look at is triaging this incredible volume of cases. And I think that if you can make sure that this case grading system is really accurately implemented and investigators can focus on the A charges, issue right to sue letters on the C charges and send the B charges to ADR which I think would be very beneficial staff up in the ADR unit; I think that could really help relieve some of these problems.
I also appreciate the desire to move to online, but I will tell you that our state agency has moved entirely to an online intake system and it is a complete bar to many of our clients being able to file a charge. They cannot access the online system in any language other than English and they are then required to call in and they often are not able to get through. And so I don't think the online will work for everybody, although to the extent we can improve the online efficiencies of the Commission and the Agency, I think that would be wonderful. I know there's difficulties for them connecting remotely. There's a lot of delays in the IT systems. And so I think that that's an important point.
And then I wanted to pick up on this deterrence point and just suggest that there is also a deterrence point in on-sites. The on-site process, I think, should be used appropriately and should be used in a targeted manner and shouldn't be just a random measure of performance by the investigators, but I do think that the fact that an investigator for the Commission will come out to your business if you are accused of discrimination in a way that's credible, I think that has an important deterrent effect and we shouldn't eliminate the on-site functions. And I would also just echo that I think many of the no causes cases we also litigate and successfully resolve. So I think that perhaps there needs to be an additional consideration around what's the difference between the cause and the no cause. Thank you.
MS. MASTROIANNI: Lorene?
MS. SCHAEFER: Yes, I would like to follow up on Commissioner Barker's question because I think it goes, as I listened this morning I was struck by a couple of things. One, is the earnestness of everybody who spoke and they are so committed to the cause and to what they're doing day to day. And that came through in spades. And as I look at investigations, I think at the quality of an investigation it begins with understanding what the complaint is. And I think it was Investigator Matthew who had talked about the basic questions: who, what, where, why. As lawyers, we all learn those in law school. And if you're not taking the time to really listen to the person who is frankly has gotten the courage up to go down to the local EEOC office and we're not being customer-service friendly to them and taking the time to thoughtfully ask those questions, listen to their answer and document it, then perhaps we have lost our way. Because that's, I think, a part of what is so critical to the Agency's work is being that open door.
In the private sector, when we select people who are going to be the intake people, we do that in a really thoughtful way. We want them to be able to speak the language. We want them to be a friendly person. We want them to walk the talk. And so if I was thinking of leading this Agency and thinking about where I put my resources, I would think long and hard about making sure I've got the right people and enough of them sitting there when people come into your office to make a complaint. Because you could only do -- the rest of the quality of your investigation begins with understanding what the complaint really is. And so I would urge you to really think about -- I think you talked about reallocating resources. I don't know if that's a needed necessity or not, but I can tell you that it's important that the people taking the charge speak the primary who is being the complaint way in which the person who is making the complaint and that they take time to listen.
MS. MASTROIANNI: Thank you Lorene. Rae?
MS. VANN: Just to echo what Lorene and Joyce said, intake really is the beginning, starting off point and sometimes will set the stage, most times will set the stage for whether or not an investigation takes the right course. In addition to having an intake person who is well versed in just basic customer service, skills, and abilities, you have to have somebody who has a level of expertise that matches, if not exceeds that of the typical investigator. That person has to not only be able to understand and listen to what the charging party, potential, prospective charging party is saying and the message that that person is conveying, but also has to be able to translate it. If someone is providing information that potentially could give rise to a violation under GINA, the intake person ought to understand, be able to understand and appreciate that. If someone is presenting information relating to possible damages or remedies or potential systematic violations; the intake officer ought to have some appreciation of what that means, what's a systemic claim?What are the Agency's expectations, policy positions?What's the law with respect to systemic violations, pattern or practice claims?So, that is crucially important to make sure that the person who is the first stop has a deep expertise and some experience in conducting investigations so as to be in a position to best direct the course of the investigation through the priority charge handling procedures mechanism.
MS. MASTROIANNI: Thanks, Rae. I just have heard that there's some kind of flowback here, so when you're not talking, people on this side of the table, when you're not speaking, can you turn your mics off?When you are speaking, turn them on. Okay, let's hear from our remaining two panelists.
MS. BURWELL: First, I agree that each of the offices appear to be very understaffed and the work that they do is a daunting task for them. And I find in most part the investigators are very professional and very easy to deal with in the Detroit Office and we enjoy a very good working relation with them. I mean I think some of the frustrations that we have working with the office is because the processes that they're following or they have to follow are inefficient for them and they're trying to follow the procedure in that process rather than doing the investigation. I think the intake part is very important as everyone said here. Not only is it the step for the investigators to use to determine what they need to find, but it's really the first time, it's the first time that the claimant, the first interaction with the Agency. So it's very good to have an intake person who knows the law very well and who knows what the claimant is trying to say or to ask the right questions. And then to be able to explain the procedures and steps for the claimant. I think that will really satisfy your customer relations objective of the SEP.
Also, to the extent that the charge at intake is not clear, as we stated in our position that we provided; it not only is hard for the employer to respond, but it also creates confusion in the document request. If we don't know who the comparables are or we don't know anything other than a vague bare bones charge, the employer may not want to provide documents that are relevant. And that's where we find that there's a lot of confusion and conflicts between each other and then that brings a subpoena whereas if we knew more information up front that would help.
MS. MASTROIANNI: Dan?
MR. KOHRMAN: Well, I just want to quickly thank the Chair and all the Commissioners and all the staff for the opportunity to share some thoughts with you. I want to start out by just sharing our perspective, NELA's perspective, because I think it is an interesting window on some of the dilemmas that were presented earlier in the first roundtable. We are not shy about expressing criticisms or complaints about things we’d like the EEOC to do better or differently. But quite honestly and sincerely, globally, NELA really sees itself, its members as partners with the chief federal enforcement Agency in enforcing the statutes for which you are responsible. And why that's important as a window on these challenges that the Commission has is as follows: A lot of, and I would say most people who file a charge are going to get help, if they get help from an attorney by one of our members. Most of the cases are not going to be pursued by EEOC. They're going to go through the EEOC process and come out the other end and it's the private sector that's going to be left to deal with it, the private bar. If the EEOC is faced with all these dilemmas of resources and ever-increasing docket, but if it sees itself as part of a larger law enforcement system, then some of the problems are not quite as dire or they are not really the same kind of problems. For instance, the question of whether timeframe is or ought to be a measure of quality. Well, if you look at it in the broader context, it has to be. It absolutely has to be, because everyone knows that justice delayed is justice denied and that the longer a charge or a case goes on and on, memories fade,documents vanish, on both sides. And claims that might be easily resolved become difficult to resolve. But, I hear all these passionate staff you have speaking to these problems, expressing the perspective which is quite natural which is, you know, woe to those who think of brilliant changes that are going to fix the problem. It's just going to bring another problem to my desk. So time constraints, they see it as just I think someone said having to do more work faster.
But if you look at time constraints in the broader perspective, it just means EEOC may not be the one to deal with the case which is frankly what happens in most cases anyway. That's not an easy thing perhaps to admit for some people, but it's important. So, for instance, I think someone also alluded to the idea of -- I think Mary Anne alluded generally to the idea of resolving cases a different way. And I hope we get into this a little bit more. But the possibility of dismissing charges without a finding of cause or no cause, which would move the case along and if you compare it with coming to, someone said, I think Sean, a quality investigation is an investigation that gets it right. Well, the problem is if it getting it right means putting something on the shelf for a couple of years until you realistically have a chance to deal with it, I would say it doesn't matter whether you've got it right two years down the road. That's not a quality investigation. It should have been processed sooner and someone at EEOC should have recognized that that wasn't enough of a priority because resources are limited.
Okay, so, by the same token we at NELA have expressed this in several sets of comments. We feel very strongly there should be an absolute floor on what constitutes adequate investigation and so we've talked about this and perhaps we'll have a chance to talk about it some more. There should be a request for a position statement. It should be shared with the charging party. The charging party should have a chance to provide a rebuttal statement and do that in all cases that are not easily dismissed based on the face of the complaint that there's not jurisdiction or some other obvious flaw. And what that would do, and you know, I hear perhaps the staff listening, getting very concerned, but what it would do for the Commission is, it would give a bottom-line basis for deciding is this a good case. If the Commission can't deal with that case either it reaches a cause finding or not, but really doesn't get to do a more perhaps sufficiently extensive investigation, then down the road if it's a good enough case, there will be a basis for the client to know, well you know, I really don't have a case. Or a private lawyer to say this is a legitimate case.
We find in so many cases that end up being good in court there was little or no investigation done, no exchange and that's the theory of our system after all, right?The clash of both sides, facts come out, issues are focused. So, all I want to say is, that doesn't necessarily have to create the burdens that staff were worrying about and expressing if there's another way for a case to get through EEOC system on a more timely basis.
MS. MASTROIANNI: okay, now we have used up a huge amount of time in response to Commissioner's Barkers comments and so I really appreciate this incredibly talented panel. But we have to keep in mind that we have a number of other questioners and we've got to be very disciplined in our response to them. So Commissioner Feldblum.
COMMISSIONER FELDBLUM: Thanks so much. Thanks to this panel for being here and also for the previous panel. I'm glad to see that the decision that the Commission made just about a year ago to get rid of strict production standards for charges, X number, percentage of charges in 180 days which we voted on in our strategic plan in February 2012 was clearly seen by this first panel to be a good idea. And that the question which is what we’re dealing with is, well what do we put here instead?I'm also glad to see that asKristen noted, obviously the first aspect of that is triage and that, of course, is what the Strategic Enforcement Plan was intended to do. And so we are now at the third place which is where Joyce says, you know, for a consistent process, invest the time up front in developing that. That's where we are now as a Commission. So my question to you is, it is clear and you would have heard this from the first panel, that different charges are different, different investigations are different, you know. There's a matter of subjective decision that needs to be made of, did you really need to ask another question or was this the piece of information that as Sean noted in the morning that could let you go one way or the other. So understanding all of that, what do each of you believe should be in a file that someone would review that someone could then decide yes, decisions were made correctly?
MS. SEDEY: This is Mary Anne. I have a comment.
COMMISSIONER FELDBLUM: Right, and I actually would just love to hear from everyone down the line unless someone wants to take themselves off.
MS. MASTROIANNI: Okay, why don't you start, Mary Anne. Was it you?
MS. SEDEY: Yes. It seems to me that there's three things that need to be in a file in order to know that at least we've considered all the issues in a way that's appropriate that almost provides something in the way of due process. There's the charge which sets out what the charging party's problem is. There's the response which I believe needs to be verified and signed under oath by the employer. And then the third thing that needs to be there is the charging party's response to the position statement or whatever it is we would call that document that the employer files.
I just don't understand how, as somebody said earlier, “a case can be closed, and I'm quoting, because I wrote this down, "as soon as you get the position statement in. "It's disturbing to me the notion that you can close a case as soon as you get the position statement in. That assumes that everything in the position statement is uncontroverted by the charging party and that it's kind of gospel truth. And you know, the charging party has to raise their right hand and swear and it seems to me that there needs to be some kind of verification on the position statement and that the charging party needs the opportunity to respond.
MS. MASTROIANNI: Thank you Mary Anne. Rae?
COMMISSIONER FELDBLUM: This is very good. I just realized that I also want you to, as you respond to what should be in there, what are aspects of technology that you think could be helpful in terms of electronic stuff. So let's say someone was reviewing this without flying out to a place to look at it. In other words, as you respond to also think about how technology can be helpful on that, so. .
MS. VANN: I'd just like to begin with responding to Mary Anne's statement just now and disagreeing a little bit with what she's said with respect to the comment earlier about being able to sometimes close out a charge based simply on a review and analysis of the position statement. The position statement is prepared in response to the charge which is prepared after consultation with intake. That was the charging party's opportunity to tell his or her story. And the Agency's opportunity to craft a well-pled charge. So there's no hiding the ball or missed opportunity that the charging party has had to that point to tell his or her story. If an employer has submitted a compelling position statement that is supported by the evidence that's been prepared and submitted, along with the position statement; there's no reason to continue to look for that one piece of evidence that might controvert what appears to be uncontroverted for some unspecified period of time just because. It could well be the case that receipt of a position statement and supporting documentation and responses to an RFI is sufficient. Everyone recognizes that that may not be the case. But to suggest that that is ineffective categorically I think is wrong and could prompt inefficiencies, could encourage inefficiencies by suggesting to investigators that no, no, you have to in every instance continue to look for that smoking gun because it's out there. It suggests that an employer is always going to be hiding the ball. Sure, are there bad actors out there?There certainly are. Are there employers, the vast majority I would say, that are working to do the right thing?Absolutely. Just as there are exemplary investigators and investigators who don't perform up to par. It's just the reality of the situation. You can't categorically say that a position statement --
COMMISSIONER FELDBLUM: But Rae, actually I just want to interrupt because I do want your answer on what needs to be in the file. As I understood this, the charge needs to be very clear so that the respondent can answer. I believe that right now, under law, any response that comes in, even if it's not verified and signed under oath, if things are not said in a -- if there's misleading information, there's a preexisting criminal code that makes that a crime to give misleading or false information to the government. So I'm just going to assume that that's the correct information that's coming in. As I understood it, if looking at the file, if it's very clear that you've got a piece of evidence that seems to directly contradict, what I understood from Mary Anne on the charging party response is simply, is a very quick question of okay, here's the thing. It looks like you actually stole something the week before and you didn't tell me about the fact that you stole something, is that correct?And the charging party response can be oh, yeah, I did, but I don't think that was the reason. That's when you go, thank you for sharing. And now I will make my analysis. This may be enough to decide this case.
MS. VANN: Absolutely, and that's part of a responsible investigation. You have to engage in some type of verification exercise. That does not necessarily mean that you ought to or are obligated to share the respondent's position statement, especially without notice to the respondent in every instance without giving the respondent an opportunity to rebut whatever the charging party has raised in response to that disclosure.
COMMISSIONER FELDBLUM: So in terms of what you think should be in the charge, in the file, can you just finish answering that and then we'll move to the rest in terms of what will determine --
MS. VANN: Obviously, the charge, any supplementary statements that are submitted by the charging party in support of the charge, the charging party's witness list, the full position statement as well as the redacted, as appropriate, responses to requests for information, any rebuttal statement that the charging party submits in response in the event that the position statement or any part of the response to the request for information is shared, and any preliminary assessments made by the investigator in response to informal inquiries. The investigative file also, in my view, should contain the investigator's investigative plan. What's the plan of attack based on the information that's been analyzed to this point, looking at the charge, looking at the position statement. Who do I need to interview?What time frame do I reasonably expect to be able to complete these interviews?The charge classification, if you will, under the priority charge handling procedures, and any documentation of efforts to reassess the initial categorization, if you will, of the charge. All of that goes to being able to assess what type of thought went into evaluating the case.
COMMISSIONER FELDBLUM: Yes.
MS. BURWELL: I agree. Besides the detailed charge, I think there should be a position statement and all the documents or affidavits that the respondent submits to the EEOC and then I think there should be something that shows an analysis done by the investigator, whether it be a summary back to the claimant asking them to respond to a couple of points or a closure at that point. With respect -- the timing issue is I'm not so bothered by timing of how long something takes because many times investigators, I believe, don't have control over whether a claimant is responding to telephone calls or giving them the information that they need to respond to the employer's position. Or many times, the employer, I have to say I get a request and my clients may be out of the country or they're in different meetings and I can't reach them for a few days. The investigator doesn't have control over that. But what they do have control over is the pace of the investigation. So what I would like to see in the file is that when the employer provides the position statement, there is a quick review of that to see if they believe they got the right information. And then if they didn't get all the information that they need from the employer, contact us again via telephone call, email, whatever way they want to. What is very frustrating for employers is to submit a position statement and then not hear again from the EEOC for six months or eight months and then say we need the following list of information and it's 14 different things and you have ten days to provide it to us. I know my client is not around. I know that it's impossible for me to get to it. So then I have to contact the EEOC to get an extension and oftentimes because you can't get to the investigator directly that takes time. And that's an inefficient and frustrating use of both the investigator's time and our time. So it's really the pace of how quickly they get back. I don't fault anyone for a long investigation. In fact, sometimes a long investigation means that there's analysis being done all along the way.
And the other thing is, Elizabeth mentioned the triage. I think the EEOC's offices are getting so many charges they will never be able to fully investigate all. Understand that you are still fulfilling your mission if you are triaging those cases and letting the private attorneys handle them if they want to handle it. The EEOC does not, I believe, have to be in the position of investigating completely and litigating completely all of those cases.
MS. MASTROIANNI: Thank you Linda. Any--Dan?
MR. KOHRMAN: I haven't jumped in, but I want to just quickly say that I think Mary Anne had it exactly right. I mean it is interesting to hear the various kinds of specific additional documents other than a charge, a position statement, and a rebuttal that are being discussed here. I mean, maybe I got the question wrong, but Commissioner, I thought you were talking about what is the minimum needed in a file, in a serious, important priority case. Sure, if there are follow up investigative efforts, whatever the results of those efforts, they should be in the file. But what I'm hearing is that investigators should be required to have memoranda documenting a change in the category of the case or a summary of interactions with the various parties. And while those may be laudable as minimum requirements, I think that is going to be something that's going to give a lot of your investigators a lot of heartburn. And it's going to take an awful lot of time. Those are good things, best practices. We're talking about minimum quality standards. I'm not sure all that's on a par. And also, I think from the point of view of the plaintiff's bar, giving a charging party a chance to respond to the specific contentions in the position statement is vastly more important than documenting all the interactions between the investigator and the various parties. And this is not just something we say and I don't want to speak for my colleagues, but speaking for other members who have told me countless stories of investigating your own case after it's come back from the EEOC and finding that the client has never heard of all kinds of things in the position statement and the client says they're just flat out wrong. Nobody told me that. I could have explained to them that A, B, C, D and E.
Now, what I do say is, with those three documents I think what you're likely to get after you get those, the rebuttal, a lot of the cases are just going to fall apart and those are going to be no caused very clearly. But if you don't get a rebuttal based on what the actual position statement is, there's a much higher likelihood that the investigator may not summarize what they talk about what the position statement is over the phone. They may not get the key facts. They probably do it a lot of the time, high percentage, but they don't always get it. And so what you get is a less efficient process, and so what I'm hearing is documents that I don't think are as important as those three key items.
And technology, two points. One, I think the more you can put online, the better. And frankly, our vision of this would be to have, after the charge is filed, to have the employer serve a verified position statement on the Agency and the charging party and then have the charging party serve on the respondent and the Commission, their rebuttal. And that would take the EEOC out of it all together and that would save time writing memos. We heard even writing a letter with a distilled one short paragraph, it strikes me that could take plenty of time. And so all that would be taken out of the equation.
COMMISSIONER FELDBLUM: My one follow up to that is what you thought about Linda's suggestion of besides those three, then something that shows analysis by the investigator of having been reviewed what came in. Just what did you think about that as a fourth document?
MR. KOHRMAN: It seems to me in any priority case, that ought to be in there. I'm just trying to be very tough on myself and we're trying to be hard on ourselves because we're calling for some sort of minimum requirements that would be far in excess of what's done in a lot of district offices. So I'm very mindful of trying to be realistic. So I'm not sure that that would be absolutely essential in every case.
MS MASTROIANNI: Okay, anybody else on this before we move on to Commissioner Lipnic.
MS. MARGULIES: I'm going to try not to repeat what everybody said. I think what I would add is that I think that as part of the tools that investigators are given they should be given something that applies to most cases as to what constitutes a prima facie case, what constitutes the defenses, what does pretext look like. And that can be a form -- in other words, going to what should be in the file and I'm not saying this is the file that should necessarily be shared with the respondent, but some analysis, some demonstration that there is a prima facie case, what the defenses are, what the comparables were. In other words, something to show what the thought process was. And then if there's a dispute as to fact, some description of why the investigator made the determination one way or the other. It could be two sentences, "I found so and so credible because they had documentation to back it up. "Something that describes. So you have the factual finding and you have the application effect to law. It doesn't have to be a huge essay. It can be filling out a form and that form is the tool that the investigator is using also to come up with the investigation plan and to think through the charge. So that's my addition.
MS. MASTROIANNI: Thank you Joyce. Elizabeth?
MS. KRISTEN: Thank you. Thank you Commissioner Feldblum. I'm very interested in speaking to this question and I think two preliminary questions are a file for which investigation, an A charge, a B charge, or a C charge, and what use is the file being put to?It seems like people are talking about what use the file is being put to in assessing whether a quality investigation was completed and then what use will the file be put to once it is FOIA'd after the right to sue or the case is closed. And I think those are two very different questions because many of these documents people are talking about an investigative plan, an analysis by the investigator. That's not something that we will ever see when we ask for the file later. But if that's something that Commission wants to use to analyze whether investigators are looking at cases properly, then that may be something you want to consider doing. But I think the first question is what needs to be in a C charge file and I think the charge is sufficient to be in a C charge file and the case can be closed. And while I do think there's a chance that the private bar will pick up some of these cases, I think the reality is, especially for many of the clients we represent, no one is ever going to represent these charging parties. And so we have to also be mindful that it's not just we're going to close cases and they're going to go and find a private lawyer, some will and some won't. But I still think that the Commission has to do a cost benefit analysis and really focus on the A charges and hopefully some of the good B charges that will turn into A charges.
With respect to this question of the charging party getting a chance to respond to the position statement, I think that has to be a basic quality indicia because under the legal standards, certainly with respect to McDonnell Douglas burden shifting, the charging party, if they were in court, would certainly get a chance to rebut the employer's statement and to try and prove pretext. And to the point that the charging party will essentially have had their chance at the charge filing stage, I know that many of our very unsophisticated workers come to the EEOC, do their best to explain their considerations and what happened to them, but they may not have had sort of a full and fair chance to really put everything on the table during that initial intake process. And it seems only fair and right that they have a chance to rebut what the employer's statement is. But I would say that we shouldn't require them to do so in writing. Many of our clients can't write, even in their own language and to put this burden that they need to read a position statement from an employer that no doubt will be in English, read lengthy attachments and then provide a written response or that they'll lose their rights to go forward, I think can't be the right way either.
With respect to the employers being forced to wait a long time before they hear from the Commission, I think this is partly due to the fact that my understanding of the process is the position statement will be requested right away. It will be put in the file. And then the file will sit around for 18 months before it's assigned to an investigator. And I think that someone should be reviewing those position statements immediately when they come in to see if they're adequate, to see if they meet sort of the basic requests that were asked of the respondent and then that follow up should be done quite quickly and hopefully, the whole process will be moving more quickly all together. Thank you.
MS. MASTROIANNI: Thanks Elizabeth. And Lorene, did you have something?
MS. SCHAEFER: The only thing I wanted to comment is and I think Dan had suggested that the quality indicia is maybe not to have a factual analysis by your investigator in the file. I think if your investigators aren't providing you a factual analysis, the investigation is not being done. All they're doing is collecting data. The basics of what an investigator does in my way of thinking is analyze the information that's been provided to them. And I put aside the question of whether that is producible under FOIA requests. But if the Commission is looking at whether their investigators are investigating and doing so in a quality manner, if you're not getting analyses, you're not getting an investigation from my perspective.
MS. MASTROIANNI: Okay, thank you all very much. Lots to think about. And now Commissioner Lipnic?
COMMISSIONER LIPNIC: Yes, a lot to think about here. I'm not really sure. So many questions I want to ask. So actually, let me ask my colleagues because we haven’t touched on conciliations at all and do we think that, is that worth delving into here because there's so much here on investigations.
COMMISSIONER FELDBLUM: My second question had been the exact same question with regard to conciliations, what should be in a file in order to determine that. So I would be pleased if you asked that.
COMMISSIONER LIPNIC: Okay, so I'm going to ask that question. Actually, let me make a comment first that a lot of you are raising the issue that came up at our meeting last July about the idea that everyone is entitled to an investigation, but not everyone is entitled to the same investigation. And how do we get at this sort of notion of a quality-limited investigation?So I'm sort of hearing a lot of, I think, trying to sort of get at what is that quality-limited investigation. Just to switch to conciliation since that's one of our topics as well, so I'm just going to ask all of you, whoever wants to comment about either your experiences in conciliations and your recommendations and I'll incorporate Commissioner Feldblum's question about what should go into -- what do we think goes into a file that justifies a quality conciliation? Peggy is directing.
MS. MASTROIANNI: Any of our video people want to start here?Okay, then Rae, would you like to start?
MS. VANN: Sure. Conciliation obviously is just as important as the investigation. There are a number of things that happen during a typical conciliation that in our experience impedes success, successful conciliation;first and foremost, the inability of or unwillingness of an investigator to share the basis for the reasonable cause determination and information about what is at the bottom of the conciliation demand. Secondly, an inability or unwillingness to provide flexibility to the respondent in responding to or providing a counter offer, refusing requests for face-to-face meetings, requiring an employer --
COMMISSIONER LIPNIC: Face-to-face meetings among whom?
MS. VANN: The respondent to discuss the conciliation.
COMMISSIONER LIPNIC: Okay.
MS. VANN: Just having a meeting, a settlement conference if you will.
COMMISSIONER LIPNIC: Okay.
MS. VANN: Right, to discuss the basis for the conciliation demand and to counter offer and that sort of thing. And unreasonable timeframes,I heard very recently actually in the context of preparing for this meeting from an employer that shared a story about having received -- a charge that was filed back in 2008. The position statement was submitted in 2008. It took four years to get a reasonable cause determination. And then the period from the time between the conciliation demand being made and conciliation being deemed a failure was literally days. There was a refusal of a face-to-face meeting, refusal to provide the employer with specific information as to how the damages were calculated for purposes of the conciliation. And that type of unwillingness to share information just is completely unproductive and can't reasonably be expected to lead to meaningful good faith negotiations. There has to be a willingness to share information and to at least negotiate some aspects of the conciliation demand.
MS. MASTROIANNI: Thank you Rae. Linda?
MS. BURWELL: I perceive that there is some system set up that once a case gets to conciliation, the line has been drawn --
MS. MASTROIANNI: Is your mic on?
MS. BURWELL: Sorry.
MS. MASTROIANNI: And could you speak up, please?
MS. BURWELL: I don't usually have that problem. I perceive that there is a system set in place that once a case gets to conciliation, a line has been drawn in the sand and the employer has just been given the opportunity of saying here's the demand, here's all of the elements that you have to agree with. Yes, we'll negotiate the amount perhaps, but that's it. And I think that even though Rae gave an example of a long investigation process and then a quick conciliation, I think that we are getting to conciliation too quickly. Maybe we're getting from the determination that there's just cause immediately into conciliation. There should be some type of negotiation or discussion set up either right -- that gap should be longer. Either the investigator call the company and say we believe we have enough information for good cause and let's talk about it. And then have the meeting. Discuss openly all of the elements and the material or the fact basis that supports the good cause and then enter into some type of -- or better system of negotiation or settlement discussions, if it goes to a mediator or what have you. If not, then go to the conciliation process.
MS. MASTROIANNI: Thank you. Linda. The plaintiff's bar is uncharacteristically quiet. Mary Anne?
MS. KRISTEN: This is Elizabeth. I'm happy to --
MS. MASTROIANNI: Elizabeth?
MS. KRISTEN: Yes, I'm happy to jump in. Thank you Commissioner and thank you Commissioner Lipnic for the question. The plaintiff's bar may be a little more quiet on this question because we only get to go to conciliations in a very, very small number of cases. I have been to five or six conciliations and they're awkward to be frank. The EEOC is there playing a dual role, almost as neutral, but not neutral,and also as plaintiff. We're there representing the plaintiff's interests and the employer is there. And so I think and I mentioned in my comments that they are fairly ineffective if the purpose is to really reach a settlement. And if they're supposed to be akin to settlement conferences, there really does need to be a neutral third party there. And so I do think that they -- and in all of my experiences we have not resolved the case at conciliation. But I also agree that there's problems
COMMISSIONER LIPNIC: Can I interrupt you just on that point?–
MS MASTROIANNI: Wait,wait, Elizabeth.
COMMISSIONER LIPNIC: Can I interrupt you just on that point? MS. KRISTEN: Yes, of course.
COMMISSIONER LIPNIC: On the issue of the dual role of the EEOC and the neutral. So can I ask just the others who spoke on this what your view is in terms of having a neutral party there at the conciliation?
MS. VANN: Absolutely, and that's one of the recommendations that the EEAC has made in its written comments. Having a neutral there to facilitate negotiations is invaluable because by the time you get to conciliation, the EEOC has made a determination, is wedded to a particular position. The respondent may or may not agree with the position, the legal position that the EEOC has taken. There's got to be somebody there who's truly impartial, who can move the parties to a reasonable place. And that doesn't necessarily mean that every case is going to be conciliated successfully, but at least each side is hearing the other side from someone who has no skin in the game.
COMMISSIONER LIPNIC: Okay, and I know that Linda and Joyce wanted to comment, but just to go back to Elizabeth so she can finish.
MS. KRISTEN: Okay, thank you so much. I wanted to address the point that conciliation should happen before a cause finding and strongly disagree with that suggestion. I think that the only effective leverage that can happen often at these stages is the fact that there is a cause finding and so I think that the employer is always free to settle the case, predetermination and I am assuming employers get a pretty good sense early on, I know we do, which way the investigation seems to be trending. But I don't think that there's a value in sort of having a pre-cause finding mediation. But I do think there is a very strong value in having one post-cost finding.
With respect to the unreasonable timeframes, I actually think it often takes way too long to get the conciliation conference scheduled and to have it happen. I agree that they often should be in person, but if there's no chance of resolving the matter, I think an in-person conference can be a waste of everybody's time. With respect to what should be in the file, I think there should be an assessment of damages that's accurate and I spoke in my comments about a number of different shortcuts I've seen investigators take to assess a plaintiff's damages, including using the Title VII caps as the cap on all damages regardless of any assessment of whether they are actually subject to the caps. And I've also seen problems in assessing damages for undocumented workers without giving them full value for their claims. And so I would want to see an accurate assessment of damages in the file. And if the employer is going to be claiming that they are financially unable to pay the plaintiff, I would like to see evidence of the employer's financial condition to be in the file and to be assessed as well. Thank you.
MS. MASTROIANNI: Thanks Elizabeth. Joyce?
MS. MARGULIES: Just a couple of comments on the neutral in conciliation. I definitely think there should be a neutral. I do think it should be a trained mediator from outside the Agency because -- I don't know, perhaps at the employer's expense if the Agency at this point can't afford to do that. I think that having the outside neutral doing that presupposes that the EEOC has to be open to a negotiation. Now I have not been at a conciliation for a long time, but my sense is from hearing what everybody says that it's not changed much, which is the position the EEOC seems to be we found cause, this case, you lose, we win and therefore there's no need to negotiate. Now if that's the attitude, don't bother, seriously. I don't think that should be the attitude. All this is is a cause finding. It may be right, it may be wrong. It's still subject to litigation and there should be room to have a discussion based on the strength of the merit to the case.
MS. MASTROIANNI: Thank you Joyce. Anybody else?
MS. BURWELL: I disagree with Elizabeth. Oftentimes, the employers do not know all of the factual support for the just cause finding when they get the request for conciliation. So the employers are in the dark at times of why there is the conciliation and what it's based on. So I think that that needs to be -- that information needs to be given.
Also, the question is, with respect to the demand, oftentimes the number is so high that the employer has absolutely no incentive to agree to that number at that time and then the claimant has this number that he or she is waiving and they believe that the case has been assessed at and when they go look for an attorney to represent them, oftentimes they've got problems with the plaintiff's attorney saying you know what, your case, we don't believe your case is worth that. So they have problems developing that relationship.
MS. MASTROIANNI: Thank you Linda. Would you like the last word here?
MS. SCHAEFER: I don't know if it's the last word, but a word is that I would urge the Commission to really adopt a true mandatory ADR program. I'm not sure what that looks like at the conciliation stage, but if you ask what's in a conciliation file from my assessment, it is a third party has met with both sides or maybe all three sides if there's private counsel involved as well, and can say to the Commission, all the parties exercised true good faith settlement discussions, which is really what a conciliation is supposed to be. And as I talk to people on both sides of the bar preparing for this session today; what I was struck with was by the time the Commission has made or the EEOC has made a for-cause finding, no one is talking to anyone. And it really is a missed opportunity for both sides or all three sides to sit down in a meaningful way and exchange information. But the only way that's going to happen, I think, at that stage, is if you have a third-party neutral involved.
MS. MASTROIANNI: Thank you. Mary Anne, did you have something?
MS. SEDEY: Yes, I guess I just wanted to add something from the plaintiff's point of view or the employee's point of view and that is, my perception is that right up until the moment that a cause finding is made, the Agency has been a neutral. And you know, there's a lot of stages before we get there where there are opportunities for resolution. Lots of things get resolved in pre-investigation ADR now. That seems to me to be an extremely effective program that the Commission is running. You know, it is so rare to find a cause finding. I've been practicing in this area of law for more than 35 years and I think I've been to three or four conciliations total. My experience is that the Agency has done a really thorough job of listening to both sides of the story, so I don't think it's a place where we should be investing resources in hiring outside neutrals. The Commission has been the neutral up until that point.
MS. MASTROIANNI: Thank you Mary Anne. Now we're going to have to do some triage here. And here's what I propose that Jack and Janet as co-chairs, what I will ask now is that each of you give me one question and we'll have this group consider both of your questions, one question from Jack and one from Janet in the next round because although the Chair is patient, she should get a chance as well to ask hers.
MS. ELIZONDO: Actually Peggy, this is Janet. I will yield my time to the Chair, no problem at all.
MS. MASTROIANNI: Jack, do you have a question?
MR. ROWE: I have, actually a couple of questions, but I certainly would be glad to have my place passed to the Chair.
MS. MASTROIANNI: Well, no, no, let's hear one of them. We have time for that. It will encroach on our lunch hour, but that's okay. It's not a problem.
MR. ROWE: Well, this is a question about conciliation. I'm glad to see that we're turned over to some reflections on the conciliation. I think I would just like each of the panel members to respond to this issue of whether there are any terms, any criteria in conciliation that you would never expect the Commission to be involved in an agreement with that term or those terms. Is there anything that you know is a non-starter for the Commission?
MS. MASTROIANNI: For the Commission?Okay. You're asking this of this panel?Is there anything that's a non-starter for the Commission or that should be or -- I'm missing something here,Jack?
COMMISSIONER LIPNIC: Is it for the Commission to put on the table that the Commission is requesting that?
MR. ROWE: Will not respond with a yes to this term or these terms.
MR. KOHRMAN: Terms that the Commission should never agree to. Is that it?
MS. MASTROIANNI: No, it's the opposite. I mean, Jack, one way to ask the question is, are there terms that the Commission should never agree to in a conciliation. I mean you could ask that. The question I thought you were asking is from both the plaintiff and management side, is there a sense that there are things that when the respondent puts forward something, they just get from the Commission a flat-out that's a non-starter. We're not going to continue. Is that the question, Jack?
MR. ROWE: That is the question, Commissioner. Thank you.
Commissioner FELDBLUM: The latter question.
MS. MASTROIANNI: Okay, you don't have to respond to this, but if you have some thoughts, any of you, we'd like to hear them. Let's start with our video attendees. Elizabeth or Mary Anne, do you have anything at this point?
MS. KRISTEN: Well, I would respond to maybe what's not the question which is just a few things that I think the Commission should always be looking for in conciliation and that is training and policy changes. That is something that the Commission is sort of uniquely positioned to insist upon and I think it's very important. It sometimes gets left out when private counsel are involved. And I also think confidentiality is a term that the Commission should not agree to if at all possible because again, that's something private counsel often is forced to agree to and the Commission really shouldn't as a public agency.
MS. MASTROIANNI: Thanks Elizabeth. Mary Anne?
MS. SEDEY: Yes, I want to agree on the confidentiality thing and I have to say that my experience is at least in the District Office that I work with here in St. Louis, that really is pretty much non-negotiable and I think that's a wonderful thing because again, if we get to this question of deterrence and prevention and how we're going to make that happen, I think that's good. The other thing that I've noted that seems to be a non-starter is this business of you have to agree never to apply for a job at the place again. As a private lawyer, you know, oftentimes I get talked into that but I think it's really good the Agency won't do it.
MS. MASTROIANNI: Thanks Mary Anne. Any panelists who are here. Rae?
MS. VANN: Again, I'm not sure if I'm answering the question posed, but I'll offer a recommendation in terms of a non-starter for employers. Statutory caps, just putting statutory caps on the table in every instance, in most instances is a non-starter. There has to be a reasonable damages calculation and a demand that's based on whatever reasonable damage this calculation has been conducted and communicated.
MS. MASTROIANNI: Thanks Rae. Joyce?
MS. MARGULIES: I guess there's one issue I'm a little bit confused on which is confidentiality versus publicity and maybe I'll just -- I won't even try with my understanding, but ideally I think employers would conciliate more freely if they did not have to get the public publicity release that such and such employer settled this case and for how much and all the details. Obviously, that's going to come if there's successful litigation, but I'm not sure that's appropriate after conciliation. I do understand the Commission wants to publicize its successes and as I think I've said in the earlier meeting or wanted to say that I think we should have a way to publicize results without identifying employers, so you can still get the deterrent effect, but not necessarily deter an employer from reasonably resolving a case that it thinks it might actually have a chance of winning, but it's willing to work towards settlement.
MS. MASTROIANNI: Thank you Joyce. I think that brings us now to the Chair.
CHAIR BERRIEN: Thank you. I'd like to get feedback from the panel about two specific proposals that are presented either in the written testimony or statement of NELA or that have been part of the presentation today. The first was to make charge forms more widely or universally available either on our website or by other means. The second is the notion of earlier dismissals of some charges without determining cause based on an inability that we would not be able to in light of priorities were determined not to fully investigate those charges. I'd like to get more feedback from the panel about those two specific proposals.
MS. MASTROIANNI: Who would like to start?Rae?
MS. VANN: It seems to me and perhaps I didn't understand the recommendation as Daniel explained it earlier, but it seems to me the Commission would be losing sight of its statutory duty to investigate by concluding an investigation without issuing any findings simply in order to enable the private bar to take up the case. One is problematic insofar as passing off the obligation to conduct an investigation to some private attorney potentially. Two, it's also problematic because as someone else mentioned, not every lay charging party has an opportunity to be represented by private attorneys and they're looking to the EEOC as the experts to guide them as to whether or not they have a viable claim and can obtain remedies on their behalf. So it seems to me that either the Agency is going to conduct an investigation through the end or I don't know, deal with it on the front end. If there's a case that is -- I don't know, I don't think the answer is to close out a case without issuing a determination one way or the other.
MS. MASTROIANNI: Thank you Rae. Any of our video people?
MS. SEDEY: Yes. As a practical reality, there are a lot of charges that don't get an investigation. We know that. We've had a discussion that's gone on here all day based on the clear understanding that that's going to happen in a lot of the charges that there is not going to be an investigation. So to suggest that there's been one when, in fact, there hasn't been one seems to me to be kind of dishonest. You know, the practical matter about that is that when somebody gets something that says the Agency found no cause, that's a big deterrent to that individual even though there may have not been any investigation and analysis of whether or not they have a claim. So I think we ought to admit what's going on here and just say we're dismissing your case.
MS. KRISTEN: I would just add and thank you Chair. I would just add that there is certainly the immediate right to sue letter and there's not an investigation in every single charge that is filed. I don't think it's contrary to the Commission's mission to as a matter of again triage and making sure that the Commission can actually investigate and vigorously enforce our civil rights in this country to find some cases where there is simply not enough evidence and there's no time to do a detailed investigation and to issue a right to sue letter without making a negative finding with respect to discrimination.
MS. MASTROIANNI: Linda.
MS. BURWELL: And I would also add --
MS. MASTROIANNI: Is your mic on?
MS. BURWELL: I apologize for that. To the extent that the claimant has an attorney, they may be coming to the EEOC only to get a right to sue letter. So if that's the case, then why should the EEOC spend its limited, valuable resources in investigating a claim that is really for the benefit of a plaintiff's attorney or that can be done by an attorney?So I think that there are cases where you get a charge and that you can just dismiss so then the person can go on.
MS. MASTROIANNI: Dan?
MR. KOHRMAN: I just have a word of response based on some personal experience and experience of our members. And what you've said, Linda, it comports with our experience in some instances that there's a perception if there's a private attorney involved, then boy, EEOC can just save a whole lot of time and energy because I'm not sure what the assumption is but since there's a private attorney involved it must either be a lucrative case or the private attorney can easily do everything that's required. And my personal experience was with a class case, a case in a priority area of the Commission where essentially one of the offices wanted to get into the details, but this is something that I've heard from other members because they saw that private counsel was involved. Maybe they thought it was bad because it was me or good because they thought it was competent counsel. I won't comment.
But the notion was that the EEOC had no role and I think that is going too far in the opposite direction. And I think people are entitled to at least the basics of stating their claims, getting a response from the respondent and having a chance to issue a rebuttal. But that isn't to say that there's a need to treat every case the same. I guess Chai you said before or maybe it was Vickie, Commissioner Lipnic, that everyone is entitled to an investigation, but not the same investigation. So, there are limits. But I think it is unfair to assume that just because a claimant for whatever reason has an attorney that they've hit the jackpot and the EEOC has absolutely no role.
MS. MASTROIANNI: Lorene.
MS. SCHAEFER: A comment on the other question on making the form available online, absolutely. And it should be available in as many languages as are spoken in our country in my humble view. I mean that, to me, is an access to justice question and it's a relatively cost effective methodology to make it available to people across the country. The question then, of course, becomes and you can go to any public library today, get a library card and have access to a computer. So I think that answers some of the questions that were raised in the written statements about office hours.
The question then, I think, does become, it does need to be verified in some way. And so I think the Commission would need to think through how to help employees do that. But to make the form widely available and translated into as many languages as possible I think is an easy indicia of quality for the company.
MS. MASTROIANNI: Dan.
MR. KOHRMAN: I have a small -- well, I'm not sure it's small. It's a related point which is just to note that there have been federal court decisions, first, the Supreme Court's decision in the Holowecki case and then recent decisions in the 4th Circuit and the D. C. Circuit that are at real cross purposes and pose a real problem from our perspective which is that -- is unclear of what the status of an intake questionnaire is. And in the Holowecki case, the Supreme Court said it served as a charge. And in these recent Court of Appeals cases, the opposite result has been achieved. It seems to us that that's another example of assuring access to people who want to make a claim and it would be important for the Commission to establish a consistent clear policy about the status of charge questionnaires, particularly -- and to provide an opportunity as I believe is on the form usually that says "I want to make a claim against my employer. "And frequently then, and usually, I suppose, it is then converted into a charge and has the indicia that Rae has spoken about that you want it detailed and appropriate and well thought through. But if someone has gone to the trouble to fill out one of these questionnaires, and has indicated that they want to bring a claim. They ought to be able to bring a claim. And if the Commission establishes a clear, consistent policy, we wouldn't have these cases going in opposite directions.
COMMISSIONER LIPNIC: Can I ask just a point of clarification?Lorene, are you saying that you think that the form should be available online period or that you want people to be able to file their charge online?
MS. SCHAEFER: I want the form to be available online, not only in English, just as a matter of access in today's technology world. I think from my perspective that's a pretty basic question. I think then the next question is they ought to be able to fill it in, but I do think it still needs to be verified in person. But I would say, give, perhaps an opportunity to do a notary something not in the physical location. Is there a way in today's world where they can go to someone else and sign an affidavit that submits this as a charge. I guess what I'm trying to respond to is an access, from my perspective, an access to justice question juxtaposed to a limited resource question for physical locations.
MS. MASTROIANNI: I want to thank you enormously. You've done a service to us today and it's a good -- this is a good way for us to hear from each other. And so I want to thank you and also Mary Anne and Elizabeth and I think we need a break now and we will resume, Madam Chair, at 2 o'clock or at 2: 10 for the third panel. Thank you.
(Whereupon, the meeting in the above-entitled matter went off the record and resumed after a short break. )
MS. MASTROIANNI: Okay, we are going to start now promptly, pretty promptly. And again we will begin with an announcement by Bernadette Wilson.
MS. WILSON: Good afternoon, again, and welcome back. Is there anyone here in need of sign language interpreter services?All right, thank you.
MS. MASTROIANNI: Thanks. Welcome back to Roundtable III of our Commission meeting on the Quality Control Plan for investigations and conciliations. This is going to be a Roundtable with EEOC management and for those just joining us we're going to skip the opening statements and move right in to questions and answers in order of seniority.
For this roundtable, we're back to something similar to the first one. We have people on VTC and on the phone, most of the panel. And we have Suzanne Kotrosa in person. But let me go through all the attendees. First, we have Julianne Bowman who is Deputy Director of the Chicago District Office and she's joining us via phone. Julie, are you there?
MS. BOWMAN: Good afternoon Peggy.
MS. MASTROIANNI: And we also have Gail Cober, Director of the Detroit Field Office also joining us by phone.
MS. COBER: Hello Peggy.
MS. MASTROIANNI: Hi Gail. Then we have three people joining us on video. First, Marty Ebel, Deputy Director of the Houston District Office. Hi Marty.
MR. EBEL: Good afternoon Peggy. How are you?
MS. MASTROIANNI: Good. And we have Travis Hicks, Director of -- excuse me. Travis is by phone. Travis Hicks, Director of the San Antonio Field Office is joining us by phone. Travis?
MR. HICKS: Yes, I'm here. Thank you.
MS. MASTROIANNI: Travis, when you talk later on, can you talk louder, it's hard to hear you?
MR. HICKS: Yes, I can.
MS. MASTROIANNI: Then Suzanne Kotrosa, who is a Program Analyst in the Office of Field Programs joining us in person. And we have two Regional Attorneys joining us via video. First, Mary Jo O'Neil, Regional Attorney in Phoenix.
MS. O'NEIL: Good afternoon or good morning my time.
MS. MASTROIANNI: Okay. Good to see you Mary Jo. And Faye Williams, Regional Attorney in the Memphis District Office?And we are not seeing Faye.
MS. WILLIAMS: Good afternoon.
MS. MASTROIANNI: Hi. At first we just saw the table, Faye.
MS. WILLIAMS: Good afternoon.
MS. MASTROIANNI: Okay, so we've got everybody here and I do hope that this last panel has heard the first two panels so we can have a discussion that is deeper with each panel. And I thank all of you for being here for what is a really important conversation.
Now let's get started. You'll probably laugh when I say this, but the idea is ten minutes per question and we'll try to adhere to that. And we start with Commissioner Barker.
COMMISSIONER BARKER: Thank you Peggy, and thank you to all of you who are with us either by voice or in face or in person today and I appreciate all the time you've put into your participation in this process. That said Peggy, I'm going to waive my opening questions, so you can move right on to Commissioner Feldblum.
MS. MASTROIANNI: Okay, thank you Commissioner Barker.
COMMISSIONER FELDBLUM: Great, thanks, hello everyone. So I have one question that really I'm just assuming we can go down the line to everyone which is, as you know, our job here is to figure out what are the criteria for determining whether a quality investigation has taken place and a quality conciliation has taken place. So I'm curious from each of you what generally would you see as the elements of a quality investigation and conciliation?And then more specifically, what you would feel you would need to have in a file that you were reviewing in order to determine whether pursuant to whatever standards you want to articulate, you could determine whether, in fact, a quality investigation and a quality conciliation had taken place.
MS. MASTROIANNI: If you would like to respond to Commissioner Feldblum's questions, please let me know. State your name and we'll do a queue. And also I forgot, let me also introduce by video, Janet Elizondo and by phone, Jack Rowe, who are the co-chairs of the Quality Group along with Commissioner Feldblum. Okay, so who's going to take the plunge, and none of you are shy, so?
MS. COBER: Peggy, I'll take a stab at it.
MS. MASTROIANNI: Okay.
MS. COBER: Alright, Well I’d have to say first of all…
MS. MASTROIANNI: Oh, state your name first.
MS. COBER: This is Gail in Detroit. And I'd have to say that first of all, I really don't look for kinda one single thing or one set of things when I'm looking at whether a quality investigation has been done. I really look to see whether the appropriate theory of discrimination has been used, the appropriate models of proof, whether they've been applied. I look to see whether or not we're using our analytical and critical thinking skills and applying them, whether we're using good communication skills, both written, verbal and listening, and whether we're doing that with an eye towards providing customer service because I really strongly feel that each investigation is unique. And under our PCHP, we really are to apply just the amount of the investigation that's appropriate for that case and we want to stay away from kind of a formulaic approach. I think if we treat an investigation in a very formulaic way, we really won't be enhancing quality;we'll just instead be measuring ourselves to a checklist or working through a checklist. Now that being said, you know, obviously, there's different degrees of investigation done in a particular case. But I think that these four sort of overarching themes apply whether you're talking about closing a case as a C at intake or whether you're talking about conducting a position statement rebuttal interview with a charging party after you get a position statement, or whether you're working on developing a case to cause. You still want to always make sure and ensure that our folks are looking at it through the right theories, applying the right models of proof, that we're using our analytical and critical thinking skills and that we're using customer service and communicating appropriately.
MS. MASTROIANNI: Gail can I -- that's beautiful in terms of now making it easier for everyone else to now respond because that with a few other things basically captures what the working group has already determined are, in fact, the important criteria and that they will, in fact, be different for different cases, different charges. So if you would now respond to the second part of the question, what would you need to see, what would you want to have in the file in order to determine whether those things occurred for both investigation and conciliation?And then when everyone else answers, I don't feel you need to repeat what Gail just said unless there's something you feel was left out of that. So Gail, just continuing to the second part of the question?
MS. COBER: Sure. Obviously, we need to see some documentation or some recordation that these things have occurred in the file, so whether you're looking to see that the appropriate evidence was compiled or if you're looking at intakes to see whether or not the appropriate counseling was done, not only on what our standards are of review and what the models of proof are, but did we let the person know what their rights were going forward, did we let them know if we weren't going to continue the investigation, that we weren't going to continue the investigation and what would happen. So you need the file to at least reflect any of these steps that you've taken and I would have to say the same would hold with conciliation. I mean you want to make sure that there has been some conveyance of the rationale for why we're causing a case prior to causing it. You also want to make sure that there is some rationale in there for why it is we're coming up with the relief that we have identified as the appropriate release and that there is some recordation in there that's there's been efforts back and forth. But I think the key again is flexibility and not relying on certain kinds of forms or certain kinds of -- if X, then Y, then Z. I think it has to be all done in the flexibility for that particular case.
MS. MASTROIANNI: Okay, who else would like to address actually the second part of Commissioner Feldblum's question?Or if you disagree with anything in the first part, you can say you can talk about that as well. Suzanne?
MS. KOTROSA: When we're looking at a file to…
COMMISSIONER FELDBLUM: You might want to check your mic.
MS. KOTROSA: Oh, yes, right, When we look at a file, we want to make sure that a charging party interview has been conducted. We want notes that we can understand. Sometimes notes, handwritten notes are perfectly fine. Sometimes you can't read them, just so that they're understandable. We want to make sure that there's an appropriate PCHP categorization so that the charges follow the proper track, is assigned the appropriate resources like a legal enforcement interaction was designated for that case. We want to know respondent's position, whether that be just a position statement or any followups to the position statement because it wasn't clear, didn't address everything that we needed to know;rebuttal opportunity for the charging party or for the respondent if it looks like it's going to go cause. And we need to know if proper analysis was conducted and justification for the closure.
MS. MASTROIANNI: Thank you Suzanne. Anyone else?
MS. O'NEIL: This is Mary Jo.
MS. MASTROIANNI: Okay, go ahead Mary Jo.
MS. O'NEIL: Okay, I know we're talking a lot about what you see in a file and I guess that seems to me, that's like steps, that's procedure, isn't quality to me. Quality is, you know it when you see it. This is not a science, it's an art. And every case is different. And when I look at files and I've been doing this 27 years and I have seen a lot of files, I'm looking not at, does this thing exist, but at the actual substantive quality of what has been done in a case. So did they get all the issues during intake?Did they miss a retail issue. Is there a GINA issue?Is there an additional ADA issue that wasn't identified and put on the face of the charge?And I don't think an outside person without knowing what the interview disclosed can necessarily assess that. And a real investigation, and I would have to concur with one of the prior panelists, many, many of our cases, there's not an actual investigation. An investigation is, looking at the evidence. So I'm always interested, who did they interview?Did they do a good interview and ask good questions?Did they do good followup questions?Did they ask for the right stuff in the RFI?Did they analyze the stuff that they got from the RFI?Did they do followup interviews with whoever the appropriate person?Of course, all these fact patterns are so different. So for me, quality is the substance and the guts of what's really gone on in the case. And I think, I'm very heartened that the quality is even on the Commission's agenda. I think it's a culture statement in the EEOC to say quality is important. I know that there is a group working within the EEOC to change performance plans and I understand the quality is a big focus of that. I think that's a great way to improve the quality of our investigations is to state out what exactly we're expecting in performance. And I think supervisors and managers are in a critical position to assess the quality because their boots are on the ground, looking at what that investigator is doing.
And so quality to me is really sort of the substance of what we do in a case. That goes to the investigation. I think conciliation, what you want to see in a good conciliation is, do we have a justification and a factual basis for our demand?Have we communicated appropriately with everyone that's involved?And can we explain and justify what our demand is and so that – conciliation, it seems a little easier to me and I'll address some of the things that I think the defense bar earlier said that I disagree with. But that, to me, is what a quality conciliation is.
MS. WILLIAMS: Peggy, I just wanted to insert this.
MS. MASTROIANNI: Faye Williams.
MS. WILLIAMS: Yes, sorry. I heard some of the panelists earlier talk about consistency and all, etcetera. And I don't think that one can reduce quality to a precise definition. I think it's difficult to put all of the charges in one box, but rather one has to do an individualized assessment by looking at the file to determine whether there is quality. And while it seems easy that we could have a check list to just go down and say this is in the file, this is in the file, I don't think that will necessarily determine whether we have quality. I think it's something that we know it when we see it, based on the charge, looking at the charge, looking at respondent's response, looking at charging party's rebuttal, looking at interviews that have been done by the investigator and just following up on leads.
In terms of conciliation, what do we look for?In my District, we send out the conciliation agreement with the letter of determination. And prior to the letter of determination going out, we also do a predetermination interview and that is where the investigator may share with the respondent why he or she intends to make a cause recommendation. So when that cause recommendation issues, there should be no surprise for the respondent about what will be in that determination. And once the determination and the conciliation agreement issues, also we have done interviews with the charging party to make an assessment as best as we can for damages. We've done backpay calculations in the individual cases. If it's a class case, we've also done interviews. We've tried to define who the class is, what the damages are as best as we can. And we send all of that out at one time. And we try to be reasonable and flexible in responding to the respondents, their offers etcetera, and I heard a lot of things and I guess we'll get into it later from a number of panelists that say we seek full relief and we shut it down. And I was really surprised because I cannot tell you the number of successful conciliations we do every year. And the reason the public doesn't know about them is because we have to maintain confidentiality. But I wanted to mention that because I was really surprised when I heard the discussion about how we were not reasonable and flexible. We send out a document seeking full relief and when we don't get it, we shut it down. That is not my experience.
COMMISSIONER FELDBLUM: Yes, before --
MR. EBEL: Peggy, this is Marty.
COMMISSIONER FELDBLUM: Marty before you respond and I guess if there's going to be anyone else, yes, someone on the phone. Just so that the question is clear, actually, I meant to preface the question by saying, reviewing whether an investigation and a conciliation was a good investigation and conciliation is an art and not a science. Just like doing the investigation is an art and not a science. So I think that's all presumed. I think it's also presumed because of that, you can't just have a checklist to say X sort of process. The question that I'm asking is, given that it is an art and not a science, and given that we have in response to the congressional mandate on us to create metrics that determine whether we are meeting our job; given those two facts, what are the types of things that you would want to have accessible to you in the file, electronic or paper from which you could then do that assessment of art, not science.
MS. MASTROIANNI: Thank you Commissioner Feldblum. Marty, do you want to respond here?
MR. EBEL: Yes, thanks. Thank you. And let me say, too, to the Commissioners and to the Chair, thank you for inviting me to be a part of this. I am honored. I think that one of the best tools at our disposal for evaluation of the quality of the investigation is the notes on the PDI. And the PDI, of course, takes place not just in a cause case, but also in a no cause case. And if the PDI notes properly reflect what the investigator has thought about, what their analysis has been and how they've communicated it all to the charging party, if we're no causing it or for the respondent if we're issuing cause; I think that that's a really great area for us to probe to determine whether we've got a good investigation.
MS. MASTROIANNI: Marty let me interrupt you for one moment Marty. PDI for those who don't know is a predetermination interview. Sorry Marty, go ahead.
MR. EBEL: Quite all right. I should have done that myself.
COMMISSIONER FELDBLUM: Although Marty, I actually think that it is worth for this audience to explain a bit more about the purpose of that so all the people who felt that, from the management side at least and also, I think, from the employee that somehow the first time they were going to get anything formal, not just the back and forth, but anything formal from the Commission as to why cause was determined, would be when they got the conciliation as opposed to prior to cause being determined. That seemed not to be clear to some folks in the previous panel. So perhaps in the context of saying why you think this would be the useful variable to look at to maybe explain a bit more about what the PDI is supposed to achieve with both the charging party or respondent, depending on where the Commission is going to end up.
MS. MASTROIANNI: Marty, I hope we haven't lost you. I fear we may have.
MS. BOWMAN: This is Julie. Can I pick up while Marty gets back on the phone?
MS. MASTROIANNI: Absolutely, absolutely.
A description of the PDI is the predetermination interview and it is an opportunity for the investigator to talk to the charging party in a no cause case or the respondent in a cause case and explain that the decision that we think we're going to be making and why we are making that decision. It is also an opportunity for the party we're speaking with to give us additional information if they have any. So there's always supposed to be an opportunity for the charging party in a no cause case to say, but I have additional information or I have additional things I want to provide to you. Similarly, with the respondent, they should have the opportunity to say, all right, given that this is what I'm hearing, I need to give you some additional information at this point. And that should happen in all cases. In C cases it tends to happen very, very early in the process. And I would say I agree with Marty's assessment that perhaps not necessarily in the PDI notes, but the information about how the investigator has come to their conclusion and how they've analyzed what they've received is the important piece of information. These are all judgment calls and as you look at a file what it should contain is the information that tells you how that person came to that judgment. So for example, in the earlier panel there was a lot of discussion about whether or not how many documents you should have. If there were to be a decision, an investigator to make a decision that they did not need additional -- for whatever reason, they did not get additional information from the respondent, there should be somewhere that explains why that happened and why they were able to reach a conclusion based on what was in the file.
MS. MASTROIANNI: Thank you Julie. Travis do you have anything to add?
MR. HICKS: Not really specifically responsive to metrics. I would add that from my perspective and aspect of quality investigations in general is, is very aggressively pursuing PCHP in terms of assessing and reassessing the merit of the charge as you go along. My sense is that we take a lot of charges that are initially categorized as B and they oftentimes stay B for a long time and languish. And I think that one of the jobs, one of our challenges is to find a way to, as quickly as possible, identify Bs as being As or Bs as being Cs to allow us to pursue those charges with the greatest merit.
MS. MASTROIANNI: Thank you Travis.
MR. HICKS: Thank you.
MS. MASTROIANNI: Anybody else?Okay, we'll move on now to Commissioner Lipnic and meanwhile I assume somebody is trying to get Marty back, okay?
MR. EBEL: Peggy, I am on the phone now.
MS. MASTROIANNI: Oh, you told us that might happen.
MR. EBEL: Yes, I was afraid that might happen. I am on the phone.
MS. MASTROIANNI: Okay, great. Marty did you want to add anything?We sort of lost you midstream.
MR. EBEL: The only thing I wanted to say about conciliation is I think that a good indicator in the file is often that there is a conciliation plan that has been implemented and discussed with legal before its implementation. I think that most of the other things that we talked about I don't need to repeat although I think there should be a focus on lots of communication during the conciliation process and that we should be evaluating the reasonableness of the actions that we've taken.
MS. MASTROIANNI: Okay, thank you. Commissioner?
COMMISSIONER LIPNIC: First of all, thanks to everyone for participating and for your thoughtful comments. Just on that last point, just to follow up with what you just said Marty about conciliations, I'm not sure I was following what you said about a reasonable determination about -- maybe you could repeat that and define a little bit more about what you meant?
MR. EBEL: I'm talking about the reasonableness of the actions that we've taken during the conciliation process. For example, I think that it's harmful for us in most instances, not all instances, but for us to in most instances to say to typically the respondent, this is our last and final offer or, take it or leave it. Those kinds of things tend to paint us later on and are used to paint us later on as not having been reasonable and having not conducted our conciliation in good faith. So I kind of want to look at the conciliation process to make sure that we behaved reasonably.
COMMISSIONER LIPNIC: Okay, and then my broader question about conciliations just to go stick on this topic for anyone who wants to take it, in the last panel we talked about the idea of having a neutral in the conciliation process. So I'm wondering if anyone wants to comment on that?
MS. MASTROIANNI: Any of our phone people?
MS. BOWMAN: This is Julie.
MS. MASTROIANNI: Okay Julie go ahead.
MS. BOWMAN: Thank you. I think to me the conversation in the last panel, I think it was Mary Anne who said towards the end of this conversation that the EEOC is the neutral. Until we hit the LOD, then we're no longer the neutral. And I think that assuming that conciliation should be a mediation and one of the other panelists said essentially it's a mediation, I think it's a misunderstanding of the process and where we are at that process. If, in fact, the investigator has done what he or she should do and provide enough information before the letter of determination is sent about our finding, the Commission's position has always been that at that point we need to be discussing conciliation, not the merits of the claim which is what many, many, many respondents want to do. Putting a neutral in there puts us on an even footing with the respondent and I don't believe that's the role of the Commission at a conciliation.
MS. MASTROIANNI: Anyone else?
MR. HICKS: This is Travis in the San Antonio Office.
MS. MASTROIANNI: Travis, can you speak up?
MR. HICKS: I'm sorry, can you hear me now?
MS. MASTROIANNI: Louder.
MR. HICKS: Okay, can you hear me now?
MS. MASTROIANNI: That's better.
MR. HICKS: Okay, I'm sorry. The San Antonio Office has used mediation as a vehicle on a couple of occasions recently, but it was clear from the onset that what EEOC was seeking in the way of environmental relief and what some of our baseline was. So, I think in very limited circumstances it may be appropriate, but I agree with Julie in general, this is no longer -- we're no longer in a neutral posture. We should certainly be reasonable in terms of what we're seeking, but this isn't a no-fault posture.
MS. MASTROIANNI: Thank you Travis.
MS. O'NEIL: This is Mary Jo. I'd like to make a couple of comments, a couple of things. One is we have a fabulously successful ADR program and I would urge employers to take more advantage of that than they do. That's early in the process. It's such a successful program. It's a wonderful opportunity to settle. And there's all sorts of opportunities to enter into no-fault settlement agreements and just settle a case along the way. But as Julie has said, once we have finished our investigation, we have determined there was discrimination and so our goals at that point are twofold. One is to make whole the victims of that discrimination and number two, we are trying to make sure that that discrimination never reoccurs in that workplace. And with those goals in mind, the statutory duty to enter into conciliation is on us, is on the EEOC. And so it's our duty. I think a neutral in that situation is just inappropriate. If employers want to take advantage of the ADR process early on, I would really recommend that people, that employers do so. So I think it's completely inappropriate for there to be a neutral conciliation process.
MS. MASTROIANNI: Gail or Faye do you have anything to add?
MS. COBER: I would have to say that I agree with Julie that we've already expressed what our finding is and we've made our determination and so we come to the table as Mary Jo just said, protecting the interest of the public at large and looking for that broader public policy relief. So I think if you're going to do something like this, you have to do it judiciously and on I think, kind of appropriate cases. I wouldn't want this to be just a generalized policy.
MR. EBEL: This is Marty, Peggy.
MS. MASTROIANNI: Yes, go ahead, Marty.
MR. EBEL: I really think that to involve a third party neutral in a conciliation process is to undermine and sell short our obligations as a law enforcement agency. I could not agree more with Mary Jo. This is not the right way to go. We need to be an advocate for fixing the problem and preventing its recurrence in the future.
MS. MASTROIANNI: Faye, did you want to add anything?
MS. WILLIAMS: Just one comment. Marty said what I wanted to say, but one of the things that we do during conciliation also is that we look at the issue in the charge and then the relief that we seek in the conciliation agreement is tied to those issues or issue in the charge. And so I'm not sure that a neutral, the insertion of a neutral third party into the process would really help the Commission in carrying out its role as the enforcer of these anti-discrimination laws.
MS. MASTROIANNI: Thank you Faye. Commissioner Lipnic?
COMMISSIONER LIPNIC: Okay, switching topics here, and this is kind of a follow up on Commissioner Feldblum's questions about what constitutes a sufficient file for a quality investigation. No one has talked about training at all and I'm curious as to what your views are as to how well trained you believe the investigators are in their ability to do quality investigations. So, I'll take all comers.
MS. MASTROIANNI: Who would like to start on this?
MS. COBER: This is Gail again. I'll take a stab at this.
MS. MASTROIANNI: Thank you Gail.
MS. COBER: I share the viewpoints that staff development is really critical and of the utmost importance here. And if we really want to hone our skills and if we really want to push the whole notion of using our analytical critical thinking and really using the models of proof as our rubric, it's incumbent upon us to do regularized training to talk about emerging issues to really make sure that we're getting updates on the latest status of the law. And have an expectation that everyone participate in that training.
It's unfortunate when we have the serious resource concerns that we have right now, that one of the first things to go is kind of the training program. I know that recently I was part of the design team and development team for the intermediate skills training and we were able to pilot that in three offices and it was quite successful and it was dealing not only with emerging LGBT issues, but also a refresher on equal pay issues and really talking about the importance of doing research, the importance of knowing how to brief a case, the importance of knowing how to identify the appropriate models of proof to use and what you should be looking for. And I think us short circuiting that and not being able to go out and put that out for people really hurts us when we are thinking about moving into identifying all of these priority issues and really using our resources in a strategic way to follow up on them. And I think that the other problem we run into is, even when we do some comprehensive training, there is frequently time where we just don't allow a lot of that to sort of sink in and be used. The earlier panels talked a great deal about timeliness and the need to move at a more urgent pace, but I have to say that quite honestly I frequently think people need to take a little bit more time to sort of think and plan and analyze and assess and evaluate and that we do ourselves a disservice on some of these bigger, broader cases when we aren't really taking the time to collaborate and think and talk and use our training resources to do that. That's my thought.
COMMISSIONER LIPNIC: Anyone else?
MS. BOWMAN: Peggy, this is Julie. And I would echo Gail and I would also say that in the Chicago District and I'm sure in every other District there is a local training program that's developed. We have lots of training here that we have put on by our staff or legal or our supervisors and will continue to do that the best we can. Again, resources will be an issue because as we have fewer and fewer people here and we get furloughed and whatever, the time becomes shorter and shorter.
MS. MASTROIANNI: Thank you Julie. Anybody else?
MS. O'NEIL: This is Mary Jo. I am so glad Commissioner Lipnic brought this question up because this is the essence of quality. Are we hiring well trained, well educated people?Are we training them?Are the supervisors providing day-to-day training and follow up to the formal training?Are we handling the workloads so that they can do a quality job?Are we doing mentoring?Are we putting teams together and mentoring folks so that they improve their skills?And are we doing debriefing after big projects?I always learn the most from my mistakes. When I've made big mistakes I learn and I know after trials we do debriefing. What did we do great?What could we have done better? And I think those kinds of activities by managers, supervisors, and by investigators and by legal, help us improve the quality. So I think you really struck gold here, Commissioner Lipnic. I think this is really important.
MS. COBER: I wholeheartedly agree.
MS. MASTROIANNI: Who wholeheartedly agrees?
MS. COBER: It was Gail agreeing with Mary.
MS. MASTROIANNI: Okay, Marty do you have anything to add here?
MR. EBEL: The only thing that I would add is that I think that the training, one of the things that Commissioner Lipnic asked was how well trained are our investigators right now?And I think that that in some ways is a mixed bag. We've got some investigators who have been here for a very, very long time and surprisingly some of them are among the not so good investigators because they're still committed to a different model of investigation than the one that we currently employ.
At the other end of the spectrum, we've got some very good investigators who are very new. This last round of hires was done in a different climate with a different PD and a different kind of screening process. And I think that at least in our office and I've heard from some of the others in other Districts that the last round of hiring of investigators produced some really spectacular results because they included people who already had some good skills in investigation and in problem solving and in data analysis and critical thinking.
MS. MASTROIANNI: Thanks Marty. Suzanne has something to add here.
MS. KOTROSA: I was just going to expand on that that it's not just the investigators, but it's also support staff that support those investigators. A lot of them don't get refresher training when they've been in the field for an extended period of time. All the major trainings that we offer are for new hires. And they are focused because they are trying to get up to speed, but Marty is right, there are different procedures and different priorities back then than there are now. So we try to train the trainers and get it out there in the field. We try to involve more the entire staff. I hope it's effective, but there needs to be more refresher training for staff that's been on longer.
MS. MASTROIANNI: Travis, do you have anything?
MR. HICKS: Not really. I guess I would just add that I think that training is critical. I think that rank-and-file staff get too little, too infrequently and that I agree with I think what Gail said. The investigators are so anxious and so -- I'm adding this. They're so anxious and overwhelmed with everything they're doing that they don't have time to assimilate the training really. We had two days of AAPI training recently and people right back at work and I'm not sure how well they're able to digest all this in keeping with all the other demands placed on them.
MS. MASTROIANNI: What kind of training did you just have two days of?
MR. HICKS: The Asian American and Pacific Islander training, a day and a half of training recently. I think -- when I think of the training being infrequent, I think of GINA training. I think of ADAAA training, but more GINA -- some of the training that we received in the last two or three years, GINA is not a law that we see very frequently so investigators become rusty and as one said, we have very little refresher training.
MS. MASTROIANNI: Thank you.
MR. HICKS: I'm not sure what else I have to add in that regard.
MS. MASTROIANNI: Thank you Travis.
MR. HICKS: Thank you.
MS. MASTROIANNI: Are we ready to move on to Jack Rowe who is one of the co-chairs and who is going to ask his question by phone.
MR. ROWE: Thanks Peggy. I just want to ask one very general question and ask each of the panel members to give their views. It runs like this. What we all know and have discussed today is that we can't do good quality, if you will, good work on all the charges. And given that, by initiating a triage methodology we have decided to do very good work on some and essentially nothing or intake only on others. What would you see as the fractions?How many -- what percentage of cases can we really afford the time, space, and energy to do the kind of work that our mission demands and what happens otherwise?
MS. MASTROIANNI: Who would like to lead off on answering Jack's question?
MR. HICKS: I will start. This is Travis Hicks.
MS. MASTROIANNI: Travis you need to get closer --
MR. HICKS: I think historically we all know --
MS. MASTROIANNI: Travis.
MR. HICKS: -- that about 75, 80 percent of the charges that we take ultimately end up in a no finding --
MS. MASTROIANNI: Travis. Can't hear you.
MR. HICKS: -- no jurisdiction or some other type of non-substantive determination. I'm sorry, 20 to 25 percent end up in merit resolutions. I think with that being the standard, ultimately, I think we're going to have to make some difficult decisions given our resources, how we're going to proceed and what that's going to look like in terms of how we appropriately analyze these charges and counsel the charging parties and resolve these charges, a large number of these charges expediently or quickly so that we can expend our resources on those cases where we think we have merit and several priority issues that have been identified nationally.
MS. MASTROIANNI: Travis I'm afraid that I was asking you to speak louder at the beginning of your statement.
MR. HICKS: I'm sorry.
MS. MASTROIANNI: Can you repeat that?
MR. HICKS: Can you hear me?
MS. MASTROIANNI: Much better. The beginning of your statement, if you don't mind repeating that.
MR. HICKS: Let's see, what did I say?
MS. MASTROIANNI: Something about 25 percent.
COMMISSIONER FELDBLUM: Everything before 20 to 25 percent in merit resolution.
MR. HICKS: I guess my point was historically what we have seen and what we have sought, I don't want to call it an 80-20 rule, but essentially historically what we've seen is about 20 to 25 percent of our inventory results in a cause finding or some other type of merit resolution and the balance ultimately ends up in some type of non-substantive resolution, be it a no finding or non-jurisdictional type of issue. And with that in mind I think that our goal is again, as I stated previously, I think our goal is to find ways to more aggressively and quickly identify those charges where we feel that given further resources, it's not going to change anything regarding those charges so that we can pursue those more critical charges at least from appearances have more merit and/or are national priorities.
MS. MASTROIANNI: Thank you Travis. Those of you who are on the phone, I've gotten a request that you not be on speaker phone. So can you be on regular phone.
COMMISSIONER FELDBLUM: . . when they’re talking, if they could speak up.
MS. MASTROIANNI: Who would like to follow up on what Travis has said and respond to Jack's question?
MS. WILLIAMS: Peggy this is Faye. I'd like to respond to Jack's question. I would really hate to place a number or come up with a percentage about the number of charges that we can afford to investigate. I just don't think that's what we should be doing. But at the same time I recognize that the Agency must make some hard choices, decisions about our cases. Here in the Memphis District from the outset we use the priority charge handling procedures to categorize charges whether it's an A, B, C and throughout the entire investigative process, we are constantly reassessing that particular charge. It may be designated an A1 at the outset, but once we obtain a position statement, do some interviews, re-interview the charging party; that assessment may change. And so I say that I'm opposed to a percentage, but at the same time I think it's important that we continue to assess the charge and not be afraid if we designated it as an A or B or whatever to change that assessment.
MS. MASTROIANNI: Thank you Faye.
MR. HICKS: May I clarify what I said earlier?This is Travis?
MS. MASTROIANNI: Sure Travis.
MR. HICKS: I do not want to suggest a ratio of cause to no cause or merit to no merit. My only point is that given our historical perspective, I think we all understand that many of our charges are ultimately not going to result in violations. I guess that's my point. And I think I said earlier kind of reflecting on what Faye said is that we must aggressively categorize and reassess as we go along and I think that's the whole process to go through a constant reassessment process and identify as quickly as possible which Bs are going to become As and which Bs are going to be identified ultimately as Cs. Thank you.
MS. MASTROIANNI: Anybody else from our phone group?Wait, wait, wait. Let's do this in order. I'm hearing my voice back, it's a little disconcerting. Anyway Marty you are next. Was there somebody else who wanted to address this?And then Mary Jo. First Marty.
MR. EBEL: Thanks Peggy. I think we need to be astronomically more aggressive with the C categorization. And like the others, I'm not really willing to put a number on it, but I think that it needs to a lot more than it currently is. I think that we are erring too often on the side of including a case in the investigative process rather than the other way around because we don't want to sell people short and that's laudable. But I'm not sure that we can afford that luxury right now. I think that it's important that we get the size of the B universe to a lower and more manageable level because these priorities with the A cases are now going to be, I think -- let's face it, our resources are heavily strained right now and with the priorities that have come out in the SEP for us to look at and to focus on, along with the stuff that's going to be added by the District Complement Plans; I think that we have to admit that we don't have enough resources to do this where we currently are. And so I think the only thing that we can really rationally do, is limit the number of B cases that we have and do that by being much more aggressive at intake and grading more out as C cases.
MS. MASTROIANNI: Thanks Marty. Mary Jo?
MS. O'NEIL: A couple thoughts. One is I want to make sure that we take charges, that we protect charging parties' rights at the get go, that we can make a mistake in thinking there's not a charge when there really is, so I would say that's number one. We take the charges, we protect charging parties' rights. We get position statements because that will be useful to them later. I think we have to continue to use our wonderful ADR program and I know there's been a renewed interest in fact-finding conferences and no-fault settlements so that you can handle some of the cases that may have merit, frankly, and get some good results for the victims. And I don't know what the number is, I always think our cause rate is way lower than it should be myself. That's just my own experience. But Jack's right. We need to focus our energy and time and our precious investigative resources, investigating the good cases. I checked with my office to sort of see with losing investigators and the charges being the same or increasing, I think they were amazingly understated this morning when they spoke because they are just staggering and crushed with work.
With the inquiries, I know in Phoenix last year we had almost 6,000 inquiries and 17 investigators. That means they're handling 330 a year of inquiries and about 187 of those turn into charges. So that's just intake and intake is an exhausting process for anybody who has ever done it. It's emotionally exhausting. It's intellectually exhausting. So that whole intake piece with losing people and not being able to replace them is just staggering for the investigator. So we really do need to make the decision early, try to see if we can get them resolved. If we can't, focus on the good cases and just do the best, most gorgeous job that we can on those investigations.
MS. MASTROIANNI: Thank you Mary Jo.
MS. COBER: This is Gail. And I would like to say that again I agree with what Mary Jo was saying there. The only caveat I would put is that we do have to make sure that if we are doing more of the C closure at intake, we have to communicate with those charging parties what that all means and the rationale for why we're doing that. It doesn't do us any service to not do that in an effective and efficient way because otherwise we are just chasing around the control correspondence afterwards.
MS. MASTROIANNI: Thank you Gail. Anybody else on this question?Suzanne?
MS. KOTROSA: I just wanted to tag on to what Faye said about the recategorization or the reassessment of the charge. Now a charge touches so many hands from the time it's taken in at intake until it goes through the investigative process and as Travis said, these can move from As or be treated as Cs and the cut be made. But it is really important to continuously reassess that charge every time somebody lays their hands on it, every time other documents come into the file, every time another interview is done. I'm not sure that has to be formal, but it has to be something that action is taken on. Once you know that it's not going to be an A any longer, you can move it to a lower priority, categorization. And I think someone else mentioned the fact that Cs, their predetermination injuries are done a lot earlier. In the practices that we've seen, they're done actually at intake. The charging parties are counseled at intake,they're given the information‘they're given an assessment of their allegations or the evidence that they've been able to submit and if it is going to be a C categorized at intake, the charging party is notified of that. They're never denied the opportunity to file. So they file, but they're told that it's going to then be closed. And it's closed right out of intake or in the intake unit, but that PDI, that predetermination interview happens at that stage. They get all that information right there.
MS. MASTROIANNI: Thanks Suzanne. Okay, now we're going to move on to Janet Elizondo who is another co-chair of the QCP and Janet, go ahead.
MS. ELIZONDO: Okay, thank you Peggy. I have two questions. Hopefully, I can ask both of them and take back a little bit of that time that I yielded on the second panel. Here's my first question. We have spent a lot of time within the work group talking about the need for quality communications between the EEOC and the charging party and the employer. And one of the topics that has come up deals with position statements and whether or not as a matter of policy we should be providing copies of the actual position statement to charging party or charging party's attorney. So I would like to hear opinions from those of you on the panel about that idea of making it a matter of policy.
And then the second question is, the question that I asked during the first panel which deals with deadlines and/or timeframes and whether or not you see that or what would you see as a possible indicia of quality in relationship to timeliness and your thoughts on that. And I will listen. Thank you.
MS. MASTROIANNI: Okay, so two questions of great interest to everybody which people have strong feelings I think. So who was interested in responding?Can you give me your names?
MS. BOWMAN: This is Julie.
MR. EBEL: Marty.
MS. MASTROIANNI: Anybody else?
MS. COBER: Gail.
MS. WILLIAMS: Faye.
MS. O'NEIL: Mary Jo.
MS. MASTROIANNI: All right. Let's start with Julie and then go to Marty.
MS. BOWMAN: I would say in terms of the position statements, it seems to me I know there's a big buzz about consistency and as much consistency as we can get which I'm not sure I buy into completely, but in terms of the position statements; I think the consistency that was anticipated in PCHP originally was that the information from the respondent would be conveyed to the charging party. And I think as long as we're doing that, whether it's by giving them the documents or by talking to them on the phone or I know there are some offices who summarize it in writing, that's the key and that's the consistency is that the charging party gets to know what the respondent's position is. I think given that, it needs to be left to the field and to the districts to make decisions about how best to do that, either as a policy in the district or the individual case which is the way I think it should be.
In terms of the timeliness, I think it's very difficult to deal with timeliness and I think Marty's written statement brings up the balancing between quality and efficiency of your resources and timeliness. I think it's difficult to put into – to articulate what the indicia should be in terms of timeframes. Always when you're looking at a file, one of the things that's in the background is, what else did that investigator have on their plate?It may be reasonable to expect an investigator who is not carrying that many cases or who doesn't have a whole lot of systemic or classwork to be moving cases more quickly than somebody who does have two or three class cases. And so part of -- but that's not necessarily going to be reflected in the file. So I think it's very difficult to come up with indicia of that. One thing I had thought about in terms of a district might be having a district come up with their -- or setting their own goals for timeliness in a fiscal year and then at the end measuring them on how they set the goals and how they met the goals. That doesn't deal with individual files. That has more to do with what happens within the district.
MS. MASTROIANNI: Okay, thank you Julie. Marty?
MR. EBEL: Thank you. I think I have a little different take on the position statement issue, but I have some caveats for that, too. I guess the first caveat is, while consistency is a nice idea, I think that the consistency that we engage in ought to be consistency that serves our purposes, not the purposes of either the plaintiff's bar or the defense bar or both. If the consistency element is not something that's designed to make what we do better or faster or easier, then I'm not sure it's really that important because we have kind of an independent job to do here.
The second thing, I think that I'm troubled by is the notion that we heard in some of the earlier panels that charging parties aren't capable of understanding what's in a position statement. And while that may be true in a small number of cases, I think that by and large that people can and do understand what they're reading in a position statement. Sure, they're not going to have an understanding of what the case law might be, but really I think their focus is primarily on the factual portions of these things anyway. In this District, we routinely will give the position statement to the respondent on request. We don't provide the attachments, although we will let them view them in camera after redaction here in the office. I think to answer the second half of the question, if I understood it right before we get to the timeframes part is, should we do this -- should we give copies of the position statement I think is exactly what Janet said to the charging party?I think the short answer is no, but that's not really what I mean. Because I think if we're going to give the position statement in the regular course, we should require the respondent to provide it to the charging party. It shouldn't fall on us.
I think that some of the burden that's involved with distilling out and abstracting the position statement's salient points is a very taxing job on very scarce investigator resources. I'm not a big proponent of that for that reason. I would much rather that we send them the position statement. I will tell you all, some of you probably know that I worked for some years at the Massachusetts Commission Against Discrimination, one of the FEPA partners of this Agency and we had a slightly different statute and different regs. And we required a signed position statement under the pains and penalties of perjury. And we required that it be provided to the charging party. It worked pretty well for us in those circumstances.
With regard to timeframes, I want to echo something that we heard in the middle panel of the day and that is that justice delayed is justice denied and I'm very, very much in tune with that. But as I did point out in my written statement, there's this interrelationship between the timing of what we're doing, the quality, the goodness, the how correct we are-ness of these investigations. And then finally, the resources or money that we have to put into them or devote to them. And the more resources we devote, the quicker we can make it happen, but if we want to make it happen, I think we have to recognize that we are going to have to sacrifice either the quality or the price of the investigation. But with that being said, I think that some of the intermediate timeframes on cases might properly be measured. For example, it's, I think, vitally important that we meet the ten day service of notice requirement for the charge that's in the statute. If we're missing that ten day service requirement, I think we've got a big problem and that might be a good indicia. Have you met the ten day statutory requirement?Another one is how long is the turnaround time after a case is unsuccessful in ADR until we've got it assigned to an investigator?So some of these intermediate sorts of actions that have to take place on a case may be have some intermediate timelines put on them that will move the case along and make sure that we're getting it to where it needs to be without perhaps putting an overall, well, you've got to complete this within 180 days kind of notion. Honestly, I don't know where the 180 days came from. The statute speaks to 120 days as an aspirational sort of notion. But I'm not sure how we can do that given current resources. I'm sorry I've spoken so long.
MS. MASTROIANNI: Well, what you've said is very thoughtful, so we appreciate it. Moving on, who else would like to respond?I think everybody did. So why don't I just call on people. Suzanne?
MS. KOTROSA: You know the workload directly affects how quickly a case can be addressed. So each office, if they're going to do any kind of intermediate timelines during the course of an investigation it's going to have the flexibility to make their own decisions based on the resources they have available. I don't think that you can ever put a particular deadline on any stage of the investigation. It just doesn't seem realistic.
About the position statements, now I know Marty mentioned it does create an extra task for the investigator to draft a statement to the charging party in plain language about what the position statement represents. But it also serves a purpose that the information you get back from the charging party is probably more focused and more directly what you need for the investigation, rather than a response from the charging party that may be defensive or may address an entire employment history. So I think that has to be a flexible and locally made decision as well and what's appropriate for that particular case in that particular office.
MS. MASTROIANNI: Thank you Suzanne. Faye did you have something on this?
MS. WILLIAMS: Yes. I wanted to respond to say that I am familiar with the provision and the priority charge handling procedures that talk about the Commission providing information regarding the position statement. But I wanted to say that the Memphis District, the Director and I, we've always interpreted that to mean that we should share a summary of that position statement and not necessarily provide the position statement and the documents to the charging party. I want to say that at the outset there are a number of national law firms around the country when they submit position statements to the Agency, they have stamped on it "privileged and confidential," ask that we not disclose it to anyone but Agency personnel. And I wonder what we would receive from the respondents if they knew that we had a uniform policy of sharing the position statements. And I don't think that they probably would not be as candid as I guess to an extent some of them are and some of them are not candid, of course. And I'm just wondering what that would do for them. I heard someone say, and it might have been Marty, that he does not believe that the charging parties don't understand the position statement. I tend to disagree. We sometimes see people who have ninth or seventh grade education and if they are given those position statements what they're probably going to do is take it to someone to interpret it for them if they don't like what we're saying. And I just don't think that it makes sense for us to give the charging party the entire position statement unless we've made a decision on a case-by-case basis that it's in our best interest to share that position statement, a copy of it with the charging party. So I would say no, I would not want to establish a uniform policy of providing it to the charging party because I would be concerned also what will the respondent ask for?Will the respondent ask for a copy of charging party's questionnaire, any handwritten statements that the charging party has submitted?And as we all know, sometimes the charging parties may have a very, very strong case of discrimination. But in those statements, there are statements that reflect just the opposite. So I strongly oppose giving the charging party a copy of the position statement because I think it just opens up a can of worms that can just go out of control.
In terms of --
MS. MASTROIANNI: I'm sorry. Can you -- are you going to address timeliness, the timelines? Okay.
MS. WILLIAMS: Yes. I think timeliness is very, very important in the quality of the investigation. The worse thing that I can see is that you have a great charge, but you can't locate witnesses because the time for locating those witnesses are no longer there because people have died, they've moved, we can't reach them. So I don't know what we do in terms of setting a timeframe for interviews. I think we all know that it's very important that we need to follow up quickly, but in terms of setting a timeframe, I just don't feel comfortable in setting those timeframes.
MS. MASTROIANNI: Okay, thank you, Faye. Gail did you have something?
MS. COBER: Sure. I'll speak to the timeliness criteria first. And I'd have to say I agree with Julie that it would be a good idea to maybe look at the actual data and resources that are available to a particular district or to a particular office first and kind of factor that in before setting some kind of interim timeframes or time constraints because to me, even though I hear this call for consistency, I think the reality is that setting the same timeliness measures for all offices without factoring in their resources, their staffing, their charge activity, their case development won't really result in consistency at all. I think it will really end up resulting in some mistargeted timeframes or probably some lack of quality just to be expedient. And I don't think that that's the direction we want to go. Now I realize that justice delayed is justice denied. I totally agree with that. But I think we have to keep our eyes strategically on the priority cases and we should not be looking at timeliness as a mechanical issue because it's not a quality measure.
With respect to the position statement, I like the notion of not having a uniform policy, of leaving that up to the particular office. I know for my jurisdiction we have a number of charging parties who would have a hard time understanding what's in a position statement or they would have a hard time extrapolating what it is they should provide to us in response to a position statement. And the other thing I think harkening back to our discussion of sort of skill sets and our desire to have high-quality, high-performing staff is that it really is incumbent upon our folks to be able to distill position statements, pick out the appropriate defenses and be able to convey those defenses to the charging party and ask the right kind of questions to elicit whether or not there really is proper rebuttal. I know that that might be taxing, but I really think that that's critical to the whole analysis of being able to see whether there's even rebuttal there. That's my opinion.
MS. MASTROIANNI: Thank you, Gail. And quickly now because as usual we're running out of time. Travis did you have something to add?Travis?
MR. HICKS: Can you hear me now?
MS. MASTROIANNI: Oh.
MR. HICKS: I'm sorry. I'm having technical issues here. I very quickly would say that as a general rule I'm not a proponent of sharing position statements with the charging parties because among other things that have been stated earlier, we represent the public interest. I think we're trying to project ourselves as impartial and objective fact finders. And I think that sharing position statements, unless we're willing to share similar types of information with the employers, creates a perception of impartiality which I think is a slippery slope.
Related to timelines, I don't think there's necessarily any correlation between establishing time frames as an indicia of quality. But I would say that in general that if there's going to be any establishment or monitoring of timelines, it should be office specific given their resources.
MS. MASTROIANNI: Okay, thank you. Mary Jo if you want it, you have the last word on this?
MS. O'NEIL: No. I think everybody has covered my comments. The Chair should get to ask her questions.
MS. MASTROIANNI: Okay.
CHAIR BERRIEN: Don't worry, I will. Are we ready?
MS. MASTROIANNI: Yes, we are.
CHAIR BERRIEN: Okay. Yes. I asked the earlier panel and I'm not sure it would have been quite early for some of you in the western part of the country, so you might not have heard the discussion. But I asked the first panel, there was an exchange about the utility of measuring the number of charges that we close every year and what that tells us or perhaps what that doesn't tell us and how that impacts the way we do our work. And I asked that panel if we didn't do that, what would be a more useful or alternate way of measuring our impact or our progress towards fulfilling our mission.
So I'd like to ask this panel, do you agree that there is either limited or no utility in continuing to measure charges closed every year and if you do think that's the case what would you believe we should be measuring instead?
MS. MASTROIANNI: Okay. Mary Jo since you had nothing on the last one, do you want to start this one?
MS. O'NEIL: Sure. I'm happy to. We got to hear your question earlier this morning and I think that we're moving away from counting of widgets. I think it's a wonderful message to the staff. So I don't think there's any utility in looking at case closures. I think in some ways, frankly, it's the antithesis of quality. I think one of the measures we can look at is equitable relief. I mean if we look at our mission and what we're really trying to accomplish, what kind of equitable relief, what kind of monetary relief even, but I haven't thought this all out, but equitable relief, it seems to me is one of the measures or metrics that we could look at. So that's my one thought.
CHAIR BERRIEN: Let me just interject. I don't necessarily need to hear from everybody on every question. If you do feel like you have something to add on a question, please do. But I have two more questions I'd like to add.
MS. MASTROIANNI: Okay, do we have anything else on case closures?Why don't we move on then.
CHAIR BERRIEN: Well, I will specifically say I'd like to hear from someone on the enforcement side on the closure issue and particularly those of you who are in a position of, or have been in the positions of supervising people.
MS. COBER: Well, this is Gail and as I've said before, I have to agree with Mary Jo on this. I don't know that there is any utility really in us just counting widgets of closures. I think we should be more interested in outcomes. I think looking at equitable relief is a good thing. I think if you're thinking of well, what do you do about inventory to make sure that the inventory is being managed, you can sort of look at sort of the reduction or the percentages of reduction of inventory. But I think just looking at closures themselves gives the wrong message as to what we're really here to do and we're here to remedy and stop discrimination.
CHAIR BERRIEN: Okay, also referring to an earlier discussion and I believe it was mostly a figure that we heard in the second panel. There were references to a waiting period, significant waiting period and I think we heard more than once, 18 months cited as a wait from the time a position statement came in until there was an assignment to an investigator and actual follow up. I'd like to hear, first of all, assuming that there are some alternatives to that either length of wait or that system; I'd like to hear some of those and what other offices might do or be able to suggest as alternatives to having a long gap between a receipt of a position statement and further action and follow up in investigations.
MS. MASTROIANNI: Who would like to respond here?
MR. HICKS: I guess I'll throw my name in the hat. This is Travis Hicks. I would just say the only point I would make is that we simply have to be reasonable. I heard the comment this morning that basically they submitted their position statement or they waited for six months and then we requested information with a ten day suspense. I just think that we need to be reasonable when they request extensions, but the reality is that you have 700, 800 individuals requesting information that the EEOC across the entire nation. So while we understand that individual companies' resources are constricted, I'm not sure there's a ready-made formula for this other than to be reasonable with them. I don't know that that's responsive to what you're asking. Are you there?
MS. MASTROIANNI: Oh, yes. The silence is thinking.
MR. HICKS: All right. I thought that maybe I was cut off again.
CHAIR BERRIEN: No, no. We can hear you. Any other views around the country?Any other perspectives from other offices?
MR. EBEL: This is Marty. I was frankly shocked to hear that people are experiencing an 18-month gap between the time that we receive a position statement and the assignment of an investigator. That's certainly not happening in this district. And it doesn't sound like it's happening in other districts when I talk to my peers around the country. But I will say that in New Orleans which is, of course, part of our district, we had quite a time down there after the Katrina hurricane getting things back on track. The office was closed for almost a year. The charges kept coming in, but nobody was going to work to process them. And so we developed what was called a managed holding tank down there to run these cases and to kind of keep some sort of activity going on them during the period of time from the time that they came out of mediation and the time that the investigator could actually get to work on the case. And sometimes that was in excess of a year, but that didn't mean that there was no contact with the respondent. Instead, we had a cadre and still have this cadre of volunteers including people from AARP and a number of other community groups that provide us some help and the team that does the assessment, the charge categorization assessment also talks about some and makes some recommendations for early documents or information to gather on the case. And so we were seeking something more than a position statement from the respondent in many cases and we were telling them right along the way that there was going to be a delay, that we wouldn't get to them quickly and that they could expect that it might be9 months, 12 months before they actually talked to the investigator on the case. But in the meantime, if they could gather for us this data, it would help us when we did get around to having somebody have enough free time to look at it. Of course, that's how we handled the B cases. We didn't do that with any of the Cs or the As.
CHAIR BERRIEN: And inherently -- sorry, we're doing a mic change. Inherently, what you described was to respond to a specific and limited, I guess, set of facts or circumstances. I guess the question is among other things we are being asked to consider how we would look at the timeframes for overall resolution potentially, and whether there are important markers or points within the processing of a case or charge that we ought to be particularly mindful of and it's really in that vein that I'm asking about alternatives to the scenario that we heard this morning so that people are mindful of that as we go forward with developing the QCP. Any other comments on that piece?
Okay, if not, I'd like to go to my last question which really is what I'm hoping we can hear from everybody on or anyone certainly who hasn't spoken yet. So I think our fundamental challenge is, we have 53 offices. We have 2300 or so employees across the country dealing with approximately 100,000 new discrimination charges every year. And we have heard in various ways from this panel as well as from others during the day and every charge is different. So, the magnitude of what we're trying to get our hands around in talking about quality control for investigations and conciliations is great. But we also are not the first assembly of this Commission to deal with these issues. It's not the first time that we’ve had to grapple with some of these challenges and it's not the first time we've had to face fiscal constraints.
So for the closing question, I would like to hear, given the breadth of your experience, many of you have very long and substantial experience in the Agency. You've served in many different capacities in the Agency. What do you think is the most important caution that you should give us today or the most important lesson that you'd like for us to bear in mind as we go forward?In other words, I don't think any of us need to reinvent a broken wheel and I think it is just as important as we look for the right ways to do this that we steer clear of the wrong ways. So I would really like to hear from those of you who have been through this and have worked for many years within the Agency and dealt with supervising many employees across the Agency or overseeing the work of many employees across the Agency what you think we ought to avoid?
MS. MASTROIANNI: Why don't we start with Gail?
MS. COBER: Sure, why not?Well, first of all, I would want to say that the only thing I can think of to equate this moment in time was the way I felt right after we first embarked on PCHP, and we had at that time just a tremendous amount of cases that we had to go through. But in conjunction with that, we also went through the process of having an NEP, a National Enforcement Plan, and then our Local Enforcement Plans. And I really felt very invigorated by that whole moment and I sort of see this time to be akin with that which is, we can look at this as a moment of saying oh, my goodness, we're drowning in these cases, what do we do, woe is us. Or, we can just say no, let's roll up our sleeves, let's dig in. Let's put some teams together in these offices and let's go back and do a real vigorous PCHP triage, incorporating our legal and enforcement alliance. When we did it back in 1996 here in Detroit, we had teams of supervisors, investigators, and trial attorneys and we went through all of the cases and we triaged them all. And then we stuck really tight to what we determined to be our local priorities going forward and it was really a nice synergistic kind of really organized way of collaborating and identifying cases that we wanted to work on together. And I think that this can be that same moment. I know that there's offices that are struggling, that are vastly understaffed even worse than mine, but it doesn't change the fact that we still are required to do vigorous PCHP, to review these cases every time the new evidence comes in, that we have to communicate with the parties, that we have to use our analytical critical thinking skills and apply the law to the facts. None of that changes. But I don't necessarily think that we should look at this moment in time as something that is horrible. I think we should embrace the fact that we can use these strategic enforcement priorities and our local priorities and say let's focus our resources there and then let's see what we can best do with anything else that's left. That's my view.
MS. MASTROIANNI: Mary Jo?
MS. O'NEIL: Sure. Just a couple quick thoughts. One is just that we're talking about quality; figure out ways to message that in a substantive way with the new performance plans, with what we expect of us as managers and that quality be expected of us in a very substantive way.
Secondly, I just say I think we have to be really careful not to put on extra work and extra what might be considered non-investigative work, nonsubstantive work that would overburden our already overburdened investigators. And then, what I've thought about with Commissioner Lipnic's question about training, is I think we have to think about training not just in terms of formal training, but in terms of following up and mentoring and doing debriefing and think about that kind of training in an integrated day-to-day way when supervisors are talking to an investigator about a case or when a director is talking to an investigator about a case, to think about training in a more holistic day-to-day way. Those are my thoughts.
MS. MASTROIANNI: Thanks Mary Jo. Julie?
MS. BOWMAN: Thank you. As Gail was talking, my first thought and I understand the question to be what should we avoid and the immediate thing that comes to mind is we should avoid harkening back before 1995 and having a full investigation or a full relief policy and conciliation. I think both of those were designed to eliminate flexibility and prioritizing anything and keeping the inventory under control. And I think we need to avoid both of those.
I agree with Mary Jo that training in a more holistic way is a really good thing for us to do and I think that in addition to the formal training we’ve had; some of the smaller iMeeting trainings that are shorter timeframes have been really helpful because it's easier to grasp, it's easier to find an hour to do something than it is to find three days to do something in terms of training. So I think that's a very important thing as well.
MS. MASTROIANNI: Suzanne?
MS. KOTROSA: My thoughts about the direction we should be going are I guess -- how do I put this?I think that we should look toward the future and how we're going to communicate with charging parties. I think the second panel mentioned the charging party interview and how essential that was. But then they also mentioned putting an intake questionnaire or the Form 5. I wasn't sure which one they were referring to online. I think they are counterproductive. I think that they're contrary. We have an online intake system that we're getting ready to develop or that's in development. And I think that that will invite a lot of charging parties to self screen, to learn a lot about EEOC, to learn a lot about what we do and don't cover and will get them in the door and the opportunity to have an interview which I'll agree is essential in the first step of the investigation.
The parameters in place also protect those charging parties that are close to a filing deadline. They offer opportunities for those who need accommodations to have them available at the time that they come in for an interview. And for those that don't have online access, we still have some complementary procedures going into place that would service them as well. I think that that puts us out there. That brings the charging parties in without creating the extra burden of the voluminous mail that the investigators are processing during their intake weeks and outside of their intake weeks, not that there won't be any mail, but it should address some of that.
I think that it gives -- if this comes off and it works the way we hope; I think it will give them the breath, give them a chance to invigorate the new SEP and focus on those cases that the Commission feels will make an impact.
MS. MASTROIANNI: Thank you Suzanne. Faye, do you have any thoughts on the Chair's questions?
MS. WILLIAMS: Just a couple of thoughts, Peggy. I'm really excited about the SEP and the priorities that it identifies. At the same time though I think that we have a very effective tool already in place and it's called PCHP. I would like to see a uniform application of PCHP. And I really believe that if we use PCHP, a tool that we've had for quite a while; that it will be very, very effective here at the Agency. So those are my comments.
MS. MASTROIANNI: Thank you Faye. Travis, are you connected?While we're trying to figure that out, Marty, what is your response here?
MR. EBEL: My response is first that I think the QCP is a great idea and it provides us a great opportunity to reaffirm and to reemphasize what we do and the reason why we do it and the reason why most of us came to workhere in the first place. I think that it's important that the plan be designed in such a way that compliance with it is as painless as possible. If it's too onerous, then people aren't going to -- it's not going to have the desired effect. But I think that, of course, that's a balancing act because it's still going to have to meet with the Commission's objectives. We need to have the cases moved through the system as well. And then the other thing I guess I would caution about is, what I wrote about in my statement is, that there is this tradeoff implicit in a focus on quality, and I urge us to be careful with that.
MS. MASTROIANNI: Okay, thank you Marty. Travis I take it --
MR. HICKS: Yes, I'm available.
MS. MASTROIANNI: Oh, good. Can you get close to your mic?
MR. HICKS: Yes, I'm as close as I can get. Can you hear me now?
MS. MASTROIANNI: Yes.
MR. HICKS: Just one note in keeping with whether a short caution or lesson, very sincerely stated, we can't be everything to everybody. It may look a little bit different in each district, but I think we just all have to find a way to identify where we're going to focus our limited resources. And frankly, I think it is invigorating. I think Gail said it's invigorating going forward. There are some real opportunities to focus on our priority charges and on our impact charges, but that just requires us making these difficult decisions regarding PCHP. And I think that our discussion of PCHP has to be ongoing. We've had training on PCHP recently and I think that the culture throughout our Agency and how it's applied is a little inconsistent. I think that's one area in which we should continue to focus our efforts in terms of identifying what we're going to devote our resources toward. Thank you.
MS. MASTROIANNI: Well, you have the last word Travis. And I do want to thank you all for a very serious and even more important candid discussion. And before I turn the meeting back to Chair Berrien, do any of the Commissioners starting with Commissioner Barker have a final statement?
COMMISSIONER BARKER: No, other than I think this has been extremely helpful. It's been really interesting to have this forum. This is an opportunity to hear a lot -- hear from a lot of people what's actually going on in the field and what their challenges are. And that those challenges -- they're the same for everybody and yet for each office, they're different. Thank you.
COMMISSIONER FELDBLUM: Thanks. I'll have a combo, opening statement slash closing statement that will be able to be posted on the website. Thank you.
MS. MASTROIANNI: Commissioner Lipnic?
COMMISSIONER LIPNIC: I agree. I think it's been a great discussion. I really appreciate everyone's candor and I think it's been great to have this as a public meeting. So thanks.
MS. MASTROIANNI: Jack, any parting statements?Janet?
MS. ELIZONDO: I'd just like to say again thank you very much for the opportunity to be part of this working group and to the panel members for making this a very informative and candid discussion. I think it’ll be very helpful for the work group who I think many of the members are listening in today. So again, thank you very much.
MS. MASTROIANNI: Great. Thank you Janet, Madam Chair?
CHAIR BERRIEN: Before I make any closing statement, I would like to ask all of you to join me in thanking Peggy Mastroianni, the hardest working moderator in the business.
We have with the creative thinking and much, much advance in prep work by many people on our staff, embarked on a somewhat different format today and I think one that was very useful in helping us to get to the core of a lot of important issues as we develop the QCP. And thank you Peggy for the role that you played in helping us to do that today. I also want to thank everyone who participated in today's proceeding whether you are a member of the EEOC staff or whether you have come from an external organization, firm, or agency. I think that I speak for the entire Commission when I say that we have benefitted deeply from -- greatly from your deep knowledge of the work of this Agency and your commitment to the work of the Agency.
I want to repeat my earlier thanks to the leadership of the QCP Work Group, Commissioner Feldblum and District Directors Rowe and Elizondo and to all of the members of the QCP Work Group. We heard from two in the first panel. There are others who we suspect are watching today and all of whom will be taking careful note of the information that came forward today. So I want to thank that entire Work Group. They've been working diligently together for many, many weeks and hours to refine and flesh out the issues that we focused on today and we'll take this information back.
I want to thank the staff who work behind the scenes to make all of our meetings possible, but particularly this meeting. We occasionally see them, but Kristen Hartwell, Ron Larson and people in the Office of Information Technology, including those who have helped with the various connections in the field that allowed for so many people to participate by VTC today as well as teleconference to our facilities staff who helped to really physically make this possible and to members of my staff, Joi Chaney and Cathy Ventrell-Monsees, who have been working very hard on the QCP and in preparation for this meeting and I'd like to acknowledge Commissioner Feldblum's staff members, Edward Blue and Sharon Masling who I know are also working very diligently with Commissioner on the QCP.
One thing is abundantly clear from today's discussion that EEOC is blessed to have many people inside and outside the Agency who care deeply about our mission and who are committed to working very hard to help fulfill that mission. That is true today and it has been true even when resources have been severely constrained throughout our history. But as we also heard today, and as we all know from practical experience; fabric can only be stretched so far before it begins to wear thin and fray. Our effort to establish standards for our investigations and conciliations and the expectations that are set for this Agency and communicated to the public, must today take our fiscal and staffing constraints into account in addition to our statutory and legal obligations. And that is really the substance of what we were grappling with throughout today.
I appreciate all of the time and attention that was spent in preparation for and throughout the day to help myself and the other members of the Commission as we look ahead to the development of, and adoption of a quality control plan. And I think that the comments we heard in the last round of responses really are a great reminder to us. The QCP is an opportunity for us to take a close look at what we do today as we serve the public and identify ways to do what we do even more effectively in the future. When we identify best practices, we want to replicate them and incentivize the implementation. Above all, we want to avoid creating incentives for people to work not in furtherance of our mission, but counter to it. I want to acknowledge that all of our work going forward on the QCP will be aided immensely and immeasurably by the input that we've received today from our internal and external participants. I thank you all. Finally, just a logistical note, our meeting record will be held open for 15 days as is our custom. Anyone in the audience and any member of the public is invited to submit written comments on any issue or matter discussed at this meeting. Those comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N. E. , Washington, D. C. 20507 or sent by email. As a reminder, comments that are provided will be made available to members of the Commission and Commission staff working on matters discussed at this meeting and may be disclosed to the public. Please do not include any information in submitted comments that you would not want made public, such as address, telephone number or other identifying information and note that when comments are submitted by email; the sender's email address automatically appears on the message.
I want to thank everyone who joined us today and if there is no further business and nothing more from our Executive Officer?Well, before we do close we need to also, of course, acknowledge Bernadette Wilson, our Acting Executive Officer, who does so much in this and every meeting to make sure that things proceed smoothly. Thank you to you and your staff Bernadette. And if there's no further business, I'll entertain a motion.
COMMISSIONER Lipnic: I move that the Commission adjourn this meeting.
CHAIR BERRIEN: Is there a second?
COMMISSIONER BARKER: Second.
CHAIR BERRIEN: All in favor?
(Chorus of ayes. )
CHAIR BERRIEN: Opposed?
(No response. )
CHAIR BERRIEN: The ayes have it. The meeting is adjourned and my voice is gone. Thank you.
(Whereupon, at 3: 52 p. m. , the meeting in the above-entitled matter was concluded. )