Commission Meeting of September 7, 2006
NAOMI C. EARP, Chair
LESLIE E. SILVERMAN, Commissioner
STUART J. ISHIMARU, Commissioner
CHRISTINE M. GRIFFIN, Commissioner
I. Announcement of Notation Votes
II. Federal Sector EEO Investigations ..
Panels of Invited Experts
Christy L. Jackiewicz
J. Michael Trujillo
Timothy B. Hannapel
CHAIR EARP: Good morning, everyone. The meeting will now come to order.
Good morning again, and welcome. Thank you all for being here. Also, welcome to those of you who are sitting in the overflow room .. appreciate you being here .. and to our staff around the country who are being video streamed this morning's meeting.
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 Commission meeting. Ms. Wilson?
MS. WILSON: Good morning. And a special welcome to our new Chair, Naomi C. Earp. And good morning, Commissioners. I am 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 addition to the elevators, in case of emergency there are stairways down the halls to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right.
During the period July 12, 2006, through September 5, 2006, the Commission acted on 17 items by notation vote Ė
Approved litigation on seven cases,
Approved resolutions honoring Soisette Elaine Farley, Aurelia Sutton, Gloria Ellmore, and Shirley Smith, on their retirement;
Approved a federal sector decision in Consentine v. Department of Homeland Security;
Approved a lease of field office laptop computers;
Approved the new leased copier contracts;
Approved amicus participation in Patane v. Clark;
Approved the fall 2006 regulatory agenda; and
Approved the final No Fear Act Rule.
Madam Chair, it is appropriate at this time to have a motion to close a portion of the next Commission meeting in case there are any closed agenda items.
CHAIR EARP: Thank you, Ms. Wilson. Do I hear a motion?
Commissioner Ishimaru: So moved.
CHAIR EARP: Is there a second?
Commissioner Silverman: Second.
CHAIR EARP: Is there any discussion?
Hearing none, all in favor please say aye.
(Chorus of ayes.)
The ayes have it, and the motion is carried. Thank you, Ms. Wilson.
Good morning again to everyone. This is my first official Commission meeting - I get to bang the gavel.
Bear with us, because weíve all had to shift places. Those who used to be on the left are now on the right; those who were on the right are now on the left. We trust that you .. physically and otherwise,[Laughter], we trust that you will be patient with us for any mistakes that are made this morning.
Before we get officially started, I want to take a moment to welcome our new General Counsel, Ron Cooper, who was nominated by President Bush and unanimously confirmed by the U.S. Senate on July†26, 2006, for a four-year term. Welcome, Ron, glad to have you here.
MR. COOPER: Thank you.
CHAIR EARP: I would also like to extend a special welcome to all the distinguished panelists. Today's speakers are a diverse mixture of some of the stakeholders most committed, most interested, in improving EEO complaint processing. Today's speakers include federal agency colleagues, professional and friends, who have been doing this job for a number of years.
Our own Director of the Office of Federal Operations will also speak. We will also hear from a supervisory AJ, union representatives from AFGE and NTEU, the Senior Executive Association is represented, and the Council of EEO and civil rights executives.
The business component of federal EEO investigations is represented by firms that contract for the EEO community to do investigations. Some small businesses have been working with the EEO community for 20 years or more. Today we have two companies represented that have been full partners to agencies in the investigation of their EEO complaints. Delaney, Siegel & Zorn is represented today, and also JDG Associates.
Last, but not least, we are going to hear from one of our partners, who is also an author, a teacher, a lecturer, and someone who is passionate about the rights of complainants. We appreciate all of you being here.
I must also express my appreciation to Commissioner Griffin for making today's meeting possible. She agreed to put this meeting together before Chair Dominguez announced her departure, and in a very short time Commissioner Griffin has brought together a distinguished and diverse group of speakers from whom we are all looking forward to hearing what you have to say.
Through Commissioner Griffin's efforts, and those of her staff, we are able to take this opportunity to listen to the stakeholder community once again. We want to review the information you are going to provide to us and begin today to seriously address a problem that has vexed us all for a number of years, namely how to improve complaint processing investigations at the agency level.
Federal regulations pursuant to Title VII charge federal agencies with the responsibility of investigating complaints and issuing decisions on the merits of discrimination claims. Our regulations at 29†CFR 1614 seek to ensure fair, prompt, and appropriate processing of EEO complaints. While long overdue, agencies are making progress and they are exerting great effort to fulfill this regulatory responsibility.
Many agencies have innovative programs, and many have already begun to make improvements in the timeliness and the quality of their investigations. This becomes evident when we see that the average time for investigating complaints dropped 43 days from an average of 280 days in 2004 to 237 days in 2005.
And while it may be hard to believe, it is clear from the numbers that agencies are moving in the right direction. That is not to say that they are doing it perfectly yet. I do believe we can, and we must, become more efficient in addressing frivolous complaints and redundancy where it exists.
We have to explore how we can continue to improve the quality and the timeliness of federal EEO investigations. And more importantly, we have to figure out how we can continue the trend of rapid improvement. Through various initiatives and today's meeting we hope to maximize the momentum, learn from one another, and find new solutions to improve the timeliness and quality of agency investigations. We at the Commission look forward to working with you and learning with you together.
I will now ask Commissioner Griffin to make some introductory remarks about the meeting and to introduce the first panel.
COMMISSIONER GRIFFIN: Thank you. I, too, would like to welcome the new General Counsel, and I get to sit next to him, so that's great. I want to congratulate our new Chair and actually thank her for having this meeting. As she explained, it sort of fell in her lap, and she graciously said, "No, let's continue, this is really important." So thanks for that.
Welcome to our meeting on agency investigations. Today we will be talking about the investigation of EEO complaints in the federal sector, and this has been a system that has been the subject of intense scrutiny, both in Congress and amongst those individuals most affected by it .. federal employees. The Commission remains responsible for the federal complaint process and is, therefore, vitally interested in how to improve the investigations of EEO complaints.
I believe there are equally important hallmarks of an excellent investigation .. timeliness, quality, and impartiality. The last time the Commission addressed the timeliness of investigations was through regulatory change 14 years ago in 1992. The new 1614 regulations gave agencies a specific time limit of 180 days to investigate a complaint.
Despite this requirement, the agencies have rarely met the time limit on a consistent basis. In '93, the year the regulations went into effect, the agencies' average processing time was at its lowest, 171 days. Since that time it has rarely gone down below 200 days with a high of 343 days in FY 1997. And I don't want anyone to think that we, as an agency ourselves .. we're a federal agency .. that we are perfect in this department either. So I don't want anyone to think that we don't need to improve as well.
In '99, the Commission again issued new regulations revising Part 1614, which were designed to improve the efficiency of case processing. One of the biggest changes was to require agencies to provide alternative dispute resolution procedures as part of the complaint process. This has had a very positive effect by resolving many more complaints before they ever become formal. Despite the advances made by requiring ADR, though, few agencies have been able to still meet the time limits on a consistent basis.
In FY 2001, the average processing time was 240 days. By '05, it had improved but by a mere three days to an actual number of 237. While some may think that the timeframes are close enough, the employees don't. They see a rule that says 180 days. They see no consequence to the agency of non-compliance with this, and they fairly ask the question, "Why not?" And yet, if that same employee would have missed any of the deadlines imposed on them by one day, their EEO complaint would be dismissed. It's understandable for them to question whether this is a double standard, in fact, it is. The timeliness of agency investigations is not our only concern, excellence also requires a high quality investigation report.
Clear benchmarks need to exist with respect to report quality. The Management D irectives that accompanies the 1614 regulations requires minimal training. Requirements for all investigators are 32 hours for a new investigator and eight hours every year for all investigators. Agencies may develop their own training regimen to meet those requirements or take courses developed by the EEOC.
Guidance is also provided on how to conduct an investigation and how to compile an investigative report. If an agency doesn't follow this guidance, an administrative judge may sanction it for failures but nothing ensures the problem will not repeat itself going forward.
In the end, a poor investigation hurts the agency as well as the employee. We have also seen a significant increase in the use of outside contract investigators by many federal agencies. In FY 05, the number of contract investigations was double that of the number done by agency in-house investigations. There were 9,639 investigations conducted by outside investigators compared to 4,071 by agency investigators.
Are there differences in the quality of investigative reports done by contractors versus in-house investigators? We don't know. There is currently no measurement of this. We do know that contract investigators typically complete their investigations about 10 days sooner than in-house investigators. What we don't know is why that happens.
Some may question whether this 10-day difference is significant. I believe it is from the perspective of the employee who marks his or her calendar each day waiting for that investigation, or even more so for the employee who may have already waited six months and still has not received their investigative report.
Federal agencies have primary responsibility for investigating EEO complaints filed by their own employees. Questions are raised continually about whether the fox is guarding the chicken coop, and the impartiality of agency investigations. Is the alleged conflict of interest that arises a mere perception that has no basis in truth, or an actuality that requires a response from the Commission? Hopefully we'll be able to shed some light on all of these questions today.
We have three different panels before us. These panels consist of stakeholders in the federal sector process whom we have asked to discuss the practices that work in obtaining a timely, thorough, and complete investigation as well as the barriers that prevent them. Our first panel will examine the issue of timeliness, second we'll look at the conflict of interest in allowing agencies to investigate themselves, and the final panel will educate us on how to improve the quality of investigative reports.
And we have some agencies that are really making a difference, and we want to hear what they are doing different, so that we can all learn from that, including us.
So turning to our first panel, we've asked Carlton Hadden, the Director of the Commission's Office of Federal Operations, to discuss the current status of agency investigations. We are fortunate to also have two agencies that have either consistently been able to complete their investigations within the 180-day time limit, or who have made strides in doing so over the last few years.
Madeline Caliendo, the Associate Administrator of the General Services Administration and a former EEOC employee, will discuss with us how GSA has been able to consistently meet the time limits. We also have Michael .. J. Michael Trujillo, with a J in there, the Director of the Departmental Office of Civil Rights at the Department of Transportation. In the last two years, DOT has been able to reduce its average processing time to under 180 days, and last year finished 76.2 percent of its investigations in a timely manner.
Finally, we are also grateful to have Christy Jackiewicz join us. Ms. Jackiewicz is a Procurement Analyst from GSA who will discuss with us how the contracting process actually works for those agencies who contract out their investigations, and how contractors get on the GSA schedule.
So thank you very much for being here, and we'll begin. Come on up to the big table.
CHAIR EARP: Thank you, Commissioner Griffin.
The first speaker is Carlton Hadden. Good morning.
MR. HADDEN: Good morning, Madam Chair and Commissioners. My name is Carlton Hadden. I have the privilege of serving as Director of EEOC's Office of Federal Operations, and I ask that my full statement be included as part of the record.
Investigating complaints .. investigating claims of discrimination is a key component of the federal sector EEO complaint process. When an agency conducts a quality investigation within the regulatory timeframes, it is better able to make an informed decision as to whether discrimination occurred. Delays can often result in stale memories and lost documents, thus undermining an agency's ability to create a thorough and complete record. Where a complainant requests a hearing, a well-developed investigation allows the Administrative Judge to preside over an efficient hearings process. In addition, when a complainant files an appeal, a quality investigation facilitates the appellate body's ability to promptly render a comprehensive and fair decision.
EEOC regulations require agencies to conduct investigations and to report to the complainant within 180 days from the filing of the complaint. In its landmark management directive, MD.715,†the Commission reinforced the requirement that agencies conduct timely and impartial EEO investigations. Under MD-715, agencies must demonstrate that they have successfully implemented model EEO programs. In order to do that, agencies must show that their program satisfies six critical elements, one of which is efficiency.
I am pleased to note a recent trend suggests agencies are becoming more efficient in investigating EEO complaints. In FY 2005, agencies averaged 237 days to complete the investigation, which is the best investigation time in five years. In comparison, agency investigations averaged 280 days in FY 2004 and 240 days in FY 2001. The percentage of timely investigations also indicates this improvement trend. In FY 2005, agencies were timely in completing investigations 54.9 percent of the time compared to 42.7 percent in FY 2004.
We hope that the trend towards more timely investigations will continue. Our review of FY 2005 MD-715 reports reveals that agencies have embraced the model EEO program elements prescribed by 715. A number of agencies have reported on measures designed to cure deficiencies in case processing times. Several factors may affect the timely investigation of complaints. These include whether an agency uses its own personnel, outside contractors, or a combination of both to conduct investigations. Of those investigations which were completed within the 180-day time limit, agency investigators averaged 132.6 days to complete the investigation while contract investigators averaged 124.3.
An excellent example of an agency effectively using contract investigations is the Postal Service, which in 2005 began contracting out EEO investigations. Preliminary indicators suggest that this has proven to be cost efficient as well as an operational success. In FY 2004, the Postal Service conducted 4,822 investigations with 29.82 percent of those investigations being timely. In 2005, the Postal Service conducted almost one-third more investigations .. 6,403 to be exact .. and completed 60.75 percent of those investigations within the regulatory timeframes.
While reductions in processing times for investigations are noteworthy, not all agencies are completing investigations within those timeframes. There are several factors which may impede the ability of agencies to complete investigations in a timely manner. Some agencies are experiencing budget constraints resulting in poorly staffed EEO offices. Others have time-consuming procedures such as lengthy approval processes for investigative plans or cumbersome procurement processes. By working with agencies, OFO has identified proactive and practical approaches to overcome these deficiencies.
Since data indicate that contract investigators are playing an increasingly prominent role in the EEO complaint process, it is imperative that agencies address issues relating to cumbersome procurement processes. When working with contract investigators, EEOC recommends timely contract procurement to hasten the start of the investigation, short timeframes in contracts, involvement by the agency EEO complaints manager, as well as incentives and penalties to motivate vendors. OFO is working on a report regarding time allocation and compensation for investigative reports to assist agencies in best utilizing the contract investigations. We hope to work with GSA as we continue our work on this project.
Agencies can learn a great deal from one another in forums such as this Commission meeting where panelists are able to identify problems and discuss solutions. I want to applaud you, Chair Earp, for holding this Commission meeting on this very important issue of agency investigations.
With this same objective, OFO is planning an EEO leadership summit, which will serve as the foundation for devising and sharing creative solutions for the challenges faced by agency EEO programs. In addition, OFO plans to conduct focus group meetings designed to reach out to all of our stakeholder organizations. These meetings will certainly consider how agencies are progressing in their efforts to implement model EEO programs as well as how they are perceived to be progressing in those efforts.
We have a great deal of interest in speaking with our stakeholders about methods to reduce the perception of partiality and of an inappropriate interference in the investigative process. I hope that today's discussion will be useful in formulating new approaches, and that we leverage those approaches to improve the efficiency and effectiveness of the investigative process.
I welcome any questions from you, Madam Chair and Commissioners.
CHAIR EARP: Thank you, Mr. Hadden.
We're going to hold questions and statements and comments until all the panelists have had an opportunity to speak.
MS. CALIENDO: Good morning, Madam Chair, Commissioners. Thank you for inviting me here today.
My name is Madeline Caliendo, and I'm the Associate Administrator for Civil Rights at GSA. I submitted written testimony, so rather than read it, what I'm going to do is just generally go over what was included in it.
Let me tell you a little bit about GSA. GSA is considered a mid-sized agency. We have a little over 12,000 employees nationwide. Our workforce consists of about 49 percent women; 38 percent of our workforce are minorities. The average age of our workforce is slightly higher than the government-wide average of 46.5 years, and six percent of our workforce identifies themselves as having disabilities.
I'm also pleased to say that GSA for the past two years has been rated one of the top 10 places in government to work by the non-profit Partnership for Public Service and the American University's Public Policy Institute. So we're very proud of that.
A little bit about our civil rights program. The civil rights program at GSA has three civil rights programs, and the EEO program is one of them. And the vast majority of EEO investigations at GSA are completed within the regulatory timeframes. From FY 03 to FY 05, we completed 213 investigations, and of those, 205 were timely, which is 96 percent. The average time for the investigation was 162 days, and the average cost was slightly over $3,000.
GSA contracts out all of its investigations, and so it's purely a contracting out process that we use for the investigation process.
When I was asked to come speak to this body, I thought about what were the reasons that I thought we were successful in meeting those timeframes. And I think it's attributable to three key things. The first is at GSA we have a very strong performance improvement culture at both the organizational and individual level. And I'll tell you a little bit about how they work and why I think they intersect with the investigation process.
At GSA, every year each organization within GSA is expected to assess their program and come up with performance goals for the coming year. And we submit those goals to the head of our agency, who we call the Administrator, and it's a collaborative process where we decide if those, in fact, are the right goals that we should be working towards.
And in our EEO program in the civil rights program we very specifically have a goal to complete investigations in a timely manner and in a quality manner 100 percent of the time. And so we are held to that and asked about it all the time.
From an organizational standpoint, how we do performance management at GSA, is once every office's performance goals are solidified, they are .. we track them as an agency, and every quarter I meet with the head of the agency, as does every other head of the office .. of an office at GSA, to talk about how they have performed in their organizational goals. And it's through that process that we keep very close track of how we're doing from a performance standpoint.
In addition to that, every office has to report on what their performance is on an IT tool that we call the performance management tool. It's essentially an IT tool .. and I'm not an IT person, so don't ask me very specific questions about it, because I can't answer them .. but it's a tool that essentially everybody puts their performance data in, and everybody in the agency can see how any program is performing. So it's a very, very transparent process.
And so I think that culture within our organization helps us perform better, tighter, because we're constantly tracking how we're doing. And, again, in our EEO program the goals that we set for our EEO program are very closely aligned to the 1614 regulations.
In terms of the performance culture on the individual level, last year at GSA we transitioned from a pass-fail system to a five-tiered performance system for all of our employees. And everyone's critical elements, quite frankly, in the EEO program, very closely aligned to the requirements in the 1614 regulations. And, in fact, my performance standards, my elements for the critical elements in the EEO program, also closely align with the 1614 regulations. And so if we don't perform well, then I don't get rated well, and the same goes for my staff. So we really do strive to perform well.
I think the second key to our success is a technique that we use in terms of processing complaints, and it's to accept or dismiss a complaint within 25 days of the date it's filed. This isn't a regulatory requirement, it was something that we instituted .. and to be perfectly frank, we instituted it after we benchmarked another agency who was doing better than we were in performance.
Last year we looked to see how other agencies were performing, and the Tennessee Valley Authority was doing a better job at it than we were, and so I went to go talk to the Tennessee Valley Authority about what they were doing. And one of the things they did was institute a timeframe for accepting/dismissing, and they felt that was instrumental in getting their complaints done timely. So we adapted that best practice and do it within GSA, and we found that it works.
For example, in FY 06, to date we have accepted or dismissed 70 out of 75 cases in a timely manner within the 25 days, and so that's 93 percent of our workload. And we feel this helps, because it gets the cases moving in the process more quickly. Again, we contract out all of our cases for investigation at GSA, so the quicker we accept a case for investigation, the quicker we can get it into the investigation process.
The third key to our success, I believe, is we very, very closely monitor every case, EEO complaint, at GSA. We do it on a big picture level through the performance management tool that I talked about earlier, so we can know generally where our different regions are in terms of their performance with the goals.
But we also have an internal complaint tracking system where my staff is constantly looking to see where cases are in the process. And if it's something that looks like it's taking too long, or is behind schedule, we try to understand what the blockages might be and problem-solve how we can move it along. And I think this very close monitoring of cases has helped us reach our goal.
I'm out of time, so I'll close there.
CHAIR EARP: Thank you. Excellent.
MS. JACKIEWICZ: Hi. Good morning. My name is Christy Jackiewicz. I'm with GSA's Small Business Office, and I'm here to kind of shed some light on the schedules program.
You do have my testimony, but I teach this class monthly at different organizations, so I don't have any paper in front of me. It's pretty second-hand at this point.
The schedules program was specifically designed to help our federal agencies purchase products and services at a discount. It is a discount program. It wasn't quite designed to help businesses make money. It was more for our agencies to provide a convenience, because they are using our tax dollars, and we want to make it as easy as possible for them to find quality products and services.
As far as the EEO is concerned, the schedules program specifically hires vendors .. well, not hires them, we do contracts with the vendors, but it's not contracts for money. It's a contractual agreement between GSA and the vendor or contractor at that point to provide products and services to our agencies upon request. We do not get involved in what the agencies select. We do have ordering procedures, and those ordering procedures kind of limit the process for them in asking for discounts. So we negotiate the discounts up front, and then if an agency is asking for something that's over and beyond our maximum order, which is the point where we cut off discounts, then we encourage them to ask for additional discounts on those prices, terms, and conditions.
The agency itself decides which company it wants to purchase from. We have an ordering system of looking at two or three vendors to make sure they're getting the best value, and best value is not necessarily lowest price, but it can be whatever is best value to that agency, whatever their needs are. And that's their decision.
My understanding is there was some confusion as to, you know, how is GSA managing the contracts, but we don't manage from that perspective. We only provide the resource for the agencies, and then the agencies make an ordering decision on their own, and then they manage the contracts on their own.
So that's the schedules program, and I'll wait for questions for later.
CHAIR EARP: Okay. Thank you.
MR. TRUJILLO: Good morning. That was quick.
Good morning, Commissioners, panel members, agency representatives, and other esteemed guests. I'm honored to represent the U.S. Department of Transportation on this important panel discussion, and am pleased to share .. very pleased to share how my complaints operations team has been able to reduce the average processing in formal complaint investigations.
But before I do, I'd like to introduce .. and ask them to stand .. two of .. several members of my management team that are here today. Mary Whigham Jones, who is our Deputy Director, she's in the back here. Mary, if you'd stand. Caffin Gordon, who is our Chief of Compliance Operations Division. And Tami Wright, who functions a lot as their deputy is the Regional Director for the Washington D.C. Regional Office. And I noticed that Christy Compton here has joined us today. She doubles as our Disability Program Manager, and she ramrods our MD-715 program for the Department.
CHAIR EARP: Ramrods?
MR. TRUJILLO: Ramrods, yes.
CHAIR EARP: I know Christy, and that's probably true.
MR. TRUJILLO: That's true. At the Department, our civil rights structure includes our office, the Departmental Office of Civil Rights, and we administer policy, compliance and oversight of the Department's program. And we interface on a daily basis with our 10 modal administration and civil rights offices. And our structure is we have a central policy compliance function, and then we have 10 administrations .. Federal Aviation, Federal Highway, and others .. and they have their own civil rights, their own human resources, and their own legal functions.
In addition to the timeframe specified under 29 CFR Part 1614, the DOCR compliance operations team has instituted its own stringent internal timeframes, which is our key for the completion of all EEO complaint processing events and major work products to ensure the timely processing of formal complaints in accordance with governing regulations.
For example, DOCR requires the operating administrations to provide the EEO counselor's report within 15 calendar days of receipt of the formal complaint by our office. We issue the accept/dismiss letter and assign cases for investigation within 10 days of receipt of the counselor's report. And the investigative plan is developed within 10 days, and interrogatories and affidavits are sent out within 15 days of the case assignments. And investigators are held accountable for and are personally committed to meeting the 180-day timeframe, regardless of whether we have regulatory allowed extensions or amendments.
To ensure the most effective and efficient method of developing a factual and objective record during the investigation process, our office uses in-house and private contract staff to conduct EEO investigations. Our chief calls it "blending." EEO investigations may be conducted either on site, or we do telephone interviews or affidavits by mail. The use of contract investigators serves to balance our workload, ensure cost effective investigations, and facilitates the Department's compliance with EEOC's 180-day requirement, or under 180 days.
DOCR has implemented an automated tracking system .. we call it i-complaints .. that tracks and provides timely information on the status of our EEO cases from the pre-complaint stage all the way through the formal process. And the i-complaints system has given us the ability to identify bases and issues for each EEO complaint. It also helps us to red flag events, work processes that are past due, and it provides routine .. for routine and ad hoc reports, which are used for monitoring the status of EEO complaints and responding to both internal and external reporting requirements.
And key for us is adequate in-house staffing and timely and appropriate training for our professional staff to help us meet EEOC regulations and come in under the 180-day requirement.
One of the things that our Chief has instituted in .. within the compliance team are weekly meetings. Every Tuesday they meet and they talk about the issues of the day. They talk about cases, and they include their legal advisors, so we have very timely discussions and she personally follows up with each of the regional directors if there's an area that she feels she needs to. So it's timely, weekly communication with the principals involved in this process at the regional level.
The result is that in your EEOC FY 2004 report, we were identified as processing investigations on average 177 days compared to the Federal Government's average of 280. And in your latest published report, your 2005 report, the Department's average processing time was .. of completing investigations was 175 days versus the reduced average of 237 that was identified earlier.
I'd like to briefly turn away to a broader topic, if I may, and then get back to more specifics, but we believe it will be .. it is equally important for us at the Department and for other agencies that are establishing a viable EEO program.
In March of 2005, with the support of former Secretary of Transportation, Norman Mineta, we launched a ONEDOT Civil Rights Evaluation Project, which included a cross-functional evaluation committee and seven subcommittees to conduct a review and evaluation of the Departmentís civil rights functions, and our focus was on efficiency, cost effectiveness in structure, composition and in customer service.
The subcommittees were alternative dispute resolution, training and development, EEO complaint programs processing, which is what we're talking about today, external civil rights, systems and tracking databases, outreach and special emphasis programs, and civil rights and related resources, where I lumped in our FTEs and our financial resources.
The subcommittees examined the major functions of civil rights programs in the Department and submitted their findings, conclusions, and recommendations to the evaluation committee. We vetted that through all of the senior executives in every one of our modal administrations for about a month before we submitted and I presented the results of our study to the Secretary.
And participating on that committee were representatives at very high levels, SES levels, in civil rights, human resources, budget, IT, legal functions, and other disciplines. In the report to the Secretary, the committee outlined several key recommendations to improve the efficiency, effectiveness, and customer orientation of the Departmentís civil rights policies, programs, processes, and practices.
A reoccurring theme that emerged in the evaluation committee report was that everything we did hinged on effective leadership and accountability, timely and clear communication, standardization of policies and practices, collaborative and strategic outreach by human resources and civil rights working collaboratively, prevention and early intervention, resolution of conflicts, and internal and external operational changes which we're in the process of making.
So what are we doing at the Department that works from an overall EEO complaint handling perspective? We firmly believe in, as I've stated, the prevention or early intervention approach, and we find that particularly important in eliminating or preventing EEO complaints, formal complaints.
And as part of the push especially the last two years .. and I'm going to move quickly, because I'm running out of time .. we have been very aggressive in focusing on ADR and the effective use of ADR.
And I'd like to end by sharing that our success is based on three things that I think are important .. a highly skilled, trained, and committed professional staff, which we have, you've met some of them here today; effective and accountable leadership, again here today; and the availability .. and I underlined that .. and the effective use of resources.
CHAIR EARP: Thank you to each of you, very, very impressive.
Let me turn now to my fellow Commissioners, starting with Commissioner Silverman.
COMMISSIONER SILVERMAN: Good morning, everyone. How is everybody doing?
SEVERAL PARTICIPANTS: Good.
COMMISSIONER SILVERMAN: Does everyone know September is sort of cruel? You can't wait to get the kids back in school, and then you get on the road to go to work and your allergies start, and you think, "What have I been waiting for all summer?"
Before I make my remarks, I first want to recognize our new Chair, Naomi Churchill Earp. I've truly enjoyed working with you over the past years and am very excited to have this opportunity to work with you in this new role, and want to say that gavel looks good on you.
You've already proven yourself as an able leader here at the Commission. Your creation and implementation of the Youth at Work is only one example of the many ways you've demonstrated your strong leadership here. And I'm confident that you'll be able to fill Chair Dominguez's big shoes, and that you will forge your own strong legacy and that it will be one we can all be proud of. So welcome to your new job.
I also want to take this opportunity to officially welcome Ron Cooper. You were sworn in when I was away in August, so I wasn't at your ceremony. I want to say welcome, we're so pleased to have you here. You're really looking the part there, so ..
.. like the tie, it looks great.
MR. COOPER: Thank you very much.
COMMISSIONER SILVERMAN: I also want to thank my fellow Commissioner, Chris Griffin, for putting together today's meeting on this important topic of the federal EEO investigations. Our discussion today complements the efforts of Commissioner Ishimaru in leading to develop recommendations for improving the federal sector here at the Commission.
Finally, I'd like to thank all of the panelists here today. I know that you are all very busy people, and I really appreciate your taking the time to be with us this morning and share your experience and your ideas. Your insights are invaluable.
Investigations are one of the most critical aspects of the federal EEO process. It's where the issues and the evidence are clarified and developed. Investigations shape everything that follows, including hearings, final agency decisions, and appeals. Unfortunately, we hear too often that EEO investigations at federal agencies take too long or that the quality is insufficient.
And some complain that agencies should not be conducting these investigations at all, that there is at least a perceived conflict of interest inherent in having agencies investigate in their own backyards.
So I think it's important that we focus on agency investigations as part of our ongoing effort to review and enhance the federal sector process. The panel we've already heard from this morning raised some interesting and important points about the issues of timeliness, and I look forward to hearing from the other panels today, which will address perceived conflict of interest and the issue of quality.
The Commission has made some inroads towards improving the federal EEO process over the years, but there is still so much to be done. I believe that putting the issues on the table through focus meetings such as this one and sharing ideas will help the Commission and other agencies develop strategies for positive change.
Again, I want to thank the panelists for participation. I'm sure that as we move forward under the leadership of our new Chair, and with the commitment and vision of Commissioners Ishimaru and Griffin, EEOC can continue to make strides in fostering a more effective, more efficient, and more credible EEO process in the federal government.
And with that, I do have a few questions for the panel.
I thought I would start with Ms. Jackiewicz?
MS. JACKIEWICZ: Jackiewicz.
COMMISSIONER SILVERMAN: Thank you. I was wondering whether these .. the schedules that you talk about include information or access to information related to the quality of the work of the vendors on the schedule. I mean, I know that you talked about mostly sort of doing the contractual money things, but .. such as recommendations from satisfied customers or any type of feedback that would be helpful.
MS. JACKIEWICZ: That's a good question. One of the things that came up while I was doing some research, just to see what additional information I could get to support you guys, is that we would .. we are trying to implement a system of maybe getting some response from the agencies that purchase from our schedule vendors, trying to work out some way of getting a response, so we can develop some kind of review process.
Currently, it does not work that way. We do a past performance review up front to find out who they have done business with and whether those customers have .. are happy with their work. And then, there's a score that's created based on the customer survey, and then that's attached to the contract. And that itself is still being exercised. It hasn't actually been fully implemented. It's something that they're trying to do, but it would be great to have an after-the-fact resource to kind of show what the customers think, and that is something that Region 2 is looking to work in.
COMMISSIONER SILVERMAN: Okay. Mr. Trujillo, I notice DOT uses complement about .. of both in-house and private contractors. But I didn't see in your testimony, and I don't think I heard you sort of talk about that, and it seems like as I looked at a lot of the witnesses' testimony today there is .. there's a question, should we be doing this in-house? Should we only be doing a contractor? And I'm wondering if you could just talk a little bit about that.
I know that doesn't go completely to timeliness, but I am curious in your insight on that, or like at the Commission we in our mediation program use a combination of both, and we find that combination really works for us in our mediation program. And I'm curious, what's DOT's experience?
MR. TRUJILLO: We've been for the last two years trending toward the use .. the greater use of external investigations. We tried to do it in an intelligent way, so that we don't adversely impact the investigations and processes and the work we do. We see value in both. We have highly skilled professionals that have helped us to attain the results that we have.
And the blending that our chief talks about is to effectively utilize contract investigations to speed up what .. we know that there are different types of investigations. You've got your simple to moderate to complex, and that's .. it becomes a little more technical in how we apply it, but we tend to use our in-house people for the more complex and we supplement with the contract services as needed.
COMMISSIONER SILVERMAN: So then, automatically your contractor, that would come in quicker than the in-house ..
MR. TRUJILLO: There's a tendency for that to happen.
COMMISSIONER SILVERMAN: And just getting to that, with the in-house doing the more complex investigations, is that because you think they have .. I mean, what is the reason for that decision?
MR. TRUJILLO: I leave that more to the judgment of the chief and the regionals, because of their experience and the fact that they are out there operating every day. There are instances where we have used outside investigators to do complex investigations. It really is more aligned with the person's knowledge, skills, and ability.
COMMISSIONER SILVERMAN: Yes
Mr. Trujillo: and, I mean, how you grade and recruit people has a lot to do with it, but our trend really is to utilize .. more effectively utilize external resources to do the investigations base, and we're still going to do case management.
COMMISSIONER SILVERMAN: Okay. Thank you.
MR. TRUJILLO: I hope that answers it.
COMMISSIONER SILVERMAN: And related to that, Ms. Caliendo, can you offer more insight into your agency's decision to go exclusively to contract out investigation? And has using that contributed to your improved timeliness record? And do you think it .. was there any quality-related decisions with that decision?
MS. CALIENDO: Sure. GSA is the premier acquisition agency for the federal government, so contracting is in our blood. And so we tend to think about contracting for things all the time. I came to GSA in December 2000, and they were already contracting out at that time, and it was working in my assessment, and so I decided to keep it that way.
Again, we contract out all of our investigations at GSA, and it's been our experience that the key to success is contract management. And, you know, my staff .. investigations are handled at the regional level. We have 11 regions in GSA, and each region has an EEO officer assigned to it, and they manage the contracts. And that is something that they do all the time.
I think the key to contract management is having a very good statement of work, which lays out the expectations of who is doing what, what you expect, and what the implications are if those expectations aren't met. So we've had very good experience across the board generally with contracting.
COMMISSIONER SILVERMAN: Well, I see I'm out of time, and that .. I didn't get to Mr. Hadden, but I figure I can always talk to you on a daily basis.
CHAIR EARP: Thanks, Commissioner Silverman.
A quick question. Mr. Trujillo, are you suggesting that DOT is doing some form of triage prior to assigning the counseling report to an investigator?
MR. TRUJILLO: Our structure allows us, because we have regional offices out there, allows the headquarters office to interface with the regionals and assign cases based on .. historically based on geographic location, and then aligning the individual with the strongest skill and experience to handle that particular investigation. I'm not sure that's triage, but it's trying to use our most effective resources properly.
CHAIR EARP: Based on the complexity of the case?
MR. TRUJILLO: Yes.
CHAIR EARP: And, Ms. Caliendo, do you have a similar flexibility with the contractors? Do you get to assess the firm, your prior experience with them, and align it with the complexity of the complaint?
MS. CALIENDO: Yes. And at the regional level, the EEO officer who handles the contracting out for the investigation, how the contracting process works with the multiple awards schedule, which is Schedule 738X, is if it's a procurement that's $2,500 or above, then it needs to be competed out. And if it's below, it doesn't. But investigations invariably are over $2,500.
And so what the EEO officer will do will pick three vendors from the schedule and then put out the bid, and they will give that bid to companies that they've had good experience with.
I mentioned before that we do a lot of contract management. One of the things that we do periodically with the vendors that we use is we will sit down with them and give feedback on our experience and look for ways to improve for the future. So that's how we handle quality issues as well as timeliness issues.
CHAIR EARP: Thank you.
COMMISSIONER ISHIMARU: Could I follow up, just before I have my statement, just on the question of how you do the contract? For each complaint that comes in where you require an investigation, do you procure services for that investigation on a single basis, or do you have the schedule there and you can go to anyone on the schedule and use it that way?
MS. CALIENDO: Well, you have to do the procurement process for each case.
COMMISSIONER ISHIMARU: For each case.
MS. CALIENDO: Using the multiple awards schedule, if the procurement is $2,500 or above, then you need to do the competition process.
COMMISSIONER ISHIMARU: And is that .. and you're required to do that because under GSA contracting regulations for each incident I guess you have to take it separately, versus just having a contract with a vendor to do your cases for X amount of dollars?
MS. CALIENDO: Yes, an agency can choose to do that.
COMMISSIONER ISHIMARU: I see, okay.
MS. CALIENDO: You can go any .. there are various contracting options that you can go, and maybe Christy can talk about it. You can have like a blanket contract with one vendor or several vendors and go that way, or you can use the schedule.
COMMISSIONER ISHIMARU: This is an agency choice, then?
MS. CALIENDO: Right.
COMMISSIONER ISHIMARU: You can go this way or the other way. It's really a management ..
MS. CALIENDO: Right.
COMMISSIONER ISHIMARU: .. call as to how you do it?
MS. CALIENDO: Right.
COMMISSIONER ISHIMARU: I see. Okay, thank you.
COMMISSIONER SILVERMAN: Can I just jump in here? I don't understand. You know as an agency you're going to get complex cases like a certain number, maybe not the exact number. And so why can't agencies have the flexibility to do that in advance? Say, to those three firms that you might choose from, you know, "Here's it for X number of complex cases; bid now." And then, when the case comes in and you decide you're going to .. you know, then you assign it to that .. the contract winner. I mean, wouldn't that just save time? or ..
MS. CALIENDO: Well, I think an agency could do that. There's no prohibition against any agency doing that. We at GSA haven't found it necessary to do that.
COMMISSIONER SILVERMAN: But how many days does it take to go through that exercise that we just talked about?
MS. CALIENDO: The contracting process?
COMMISSIONER SILVERMAN: Yes.
MS. CALIENDO: A week. Very efficient. We're GSA.
It's the other agencies we ..
COMMISSIONER SILVERMAN: Wouldn't that be a week saved if you had already picked one of those three firms in advance, or I .. and I am not a contracting expert.
MS. CALIENDO: I mean, it's something we'll take into consideration, but ..
COMMISSIONER SILVERMAN: Yes.
MS. CALIENDO: .. I guess my view is it seems to be working, and so, you know..,
COMMISSIONER SILVERMAN: why fix something that's not broken?
MS. CALIENDO: why fix something that's not broken?
COMMISSIONER SILVERMAN: But for other agencies, you think that might work?
MS. CALIENDO: You know, I think ..
COMMISSIONER SILVERMAN: That don't have your contracting out expertise.
MS. CALIENDO: And my staff, quite frankly, are not contracting experts.
COMMISSIONER SILVERMAN: Yes.
MS. CALIENDO: We're EEO .. the EEO people.
COMMISSIONER SILVERMAN: Yes.
MS. CALIENDO: And so we just sort of figured it out like other agencies would figure it out, except we have, you know, colleagues like Christy in the same building, and so we could ask questions, but agencies could do that as well.
COMMISSIONER SILVERMAN: Sorry, I didn't mean to jump in.
COMMISSIONER ISHIMARU: Thank you.
Thank you, Madam Chair, and welcome to you. I, like Commissioner Silverman, have enjoyed immensely working with you over the years and look forward to having you in this new position leading us forward as we grapple with these many tough issues.
I think the President is well served, I think, and I think it goes with his personnel choices, and knowing someone like you with your experience on so many .. in so many different fields of endeavor, including the federal sector process, the President is well served as he is with his choice of Ron Cooper.
It amazes me that we can get someone of Ron Cooper's stature to come to this agency to be our General Counsel, and I'm delighted that he's here and look forward to working with him.
And I want to thank Commissioner Griffin. It says in my script here that she is our newest Commissioner and some might say our bravest for taking on some of the toughest issues we face. I've been nominally leading a workgroup. It has really been at a staff level dealing with the whole question of federal sector reform. And one area that we hadn't grappled with is the investigations stage, and this clearly is a very difficult issue. And I think that this hearing today, this meeting, pulls together a wide range of views and perspectives, and I think getting .. pulling this together is very, very important. And I hope our future endeavors will continue to pull in the wide range of issues, whether we agree with them or not.
I think hearing them and airing them publicly is very important, so congratulations. Really, an excellent job, and I'm glad we're leading off with this, because it's an issue that I found with our workgroup that we all basically agree on is, how do you make it better? And we've been working over the many, many months now trying to come to consensus to give recommendations to the Chair of how we can do it better. And we hope to have something in the near future.
Obviously, EEOC has .. plays an important role in the federal sector process. It acts as a crucial alternative to federal court for federal employees and applicants who believe they've been discriminated against. The process for both sides .. employees and agencies .. can be a very difficult one as well. No part of the process engenders more debate than agency investigations, as we've seen by this first panel and by the panels coming. So I welcome all of our people who are testifying today. These are very difficult issues.
I do have a few questions. In looking at the testimony from all of our witnesses today, one thing that struck me is, besides the inherent conflicts that we'll be talking about on a later panel, of how the timeframes are laid out and how, if you are a complainant, you're held to a strict timetable. And if you don't meet that timetable, you basically are .. have to forfeit your rights to go forward.
On the flip side, if an agency does not follow its timetable, it doesn't follow the .. or doesn't have the same consequences attached to it. Mr. Hadden, from your perspective, is there something more that this agency can do to hold agencies more accountable? Obviously, the colleagues on your panel run good programs, and, you know, their timetables work and they're able to provide their clients at their agencies a timely investigation and a timely decision.
But what do you do about the other agencies that have not 180 days, but it may be double or triple or quadruple that for something to happen. How do you hold them accountable? What can we do here at the EEOC?
MR. HADDEN: I think that's an excellent question, but I guess I would begin, Mr. Commissioner, by saying I think first we have to hold ourselves accountable at the Commission in terms of our responsibility to provide technical assistance and help the agencies move through this process.
I think if you'll look at what the agencies are doing, I think that you see that there is tremendous progress. But to cut to the chase, to answer the question as to what can we do, I mean, I think there are things that we can do. I mean, sanctions comes to mind. And look at how sanctions can be employed at the Commission. Certainly, as we share information with the President and Congress through our annual report, that certainly can be one .. another way to hold agencies accountable.
I think beyond that, as I said in my statement, Management Directive 715 to me is the key, because we expect agencies to have model programs under both Title VII and the Rehabilitation Act. You can't have a model program if you're not accountable. One of the key elements under the programs is accountability.
So I think this Commission has really started down the path, if you look holistically. And I know we're focusing on the complaint process, but I would broaden it to look at the big picture. And I'd end by beginning where I started, and I think the Commission has to look at what can we do, have we done enough to give the assistance to the agencies. And I think meetings like this, it's really good, the attention that we've given this topic. And I think now it's just, you know, how do we move forward?
COMMISSIONER ISHIMARU: And when you look at the overall picture, I guess this is a timeliness panel, but I was curious of how you and the agencies deal with the question .. at the same time you're dealing with timeliness .. of quality and how .. what sort of metrics you use to measure quality, whether it's in-house or whether it's contracted out.
How is that measured when you're looking at your contractors, Ms. Caliendo, of, you know, whether the quality of the investigation is .. is there, whether .. and trying to avoid the cookie cutter approach that can so often happen when a contractor gets it, they've seen it before, just do it again. They pull out the old file. It's like pulling up the old Word file and filling in different names for people.
MS. CALIENDO: Right. Good question. We try to deal with quality at the very front end and throughout the process. When we do the .. you know, the contracting process, I mentioned that I thought the statement of work was key to setting out what the expectations are, and so we very clearly articulate, you know, in each case what our expectations are for the processing of the complaint from a timeliness and quality standard.
In addition, we require investigative plans of the investigator, and they'll give the investigative plan. And if we don't think they're on the mark in terms of analyzing it correctly, that's, of course, correction we take at the very front end. And we require the investigative plan .. I think it's within either five or ten days of when the contract is set .. and then in our own internal process we turn that around very quickly.
In addition, our EEO officers are in communication at all times with the contractor making sure that the case is moving along well, and seeing if there are any roadblocks, and if there are, trying to problem-solve how to .. to solve whatever issue might be there.
At the end of the investigation, before the report of investigation is issued, we're issued a draft report of investigation, and that's our opportunity to review the investigation to see whether or not we believe that it is complete. If we believe it's complete, we sign off on it, and it becomes the report of investigation, and then the contract is completed. So that's how we deal with quality management.
COMMISSIONER ISHIMARU: Mr. Trujillo, do you have a similar sort of setup in your office of the sort of constant communication back and forth?
MR. TRUJILLO: The key for us, and I hope I can speak for our chief, is that the timeliness of .. well, first of all, setting standards, both for internal and external resources, ensuring that we are timely in our follow-up. And I mentioned earlier in my testimony that it's .. we talked about the blending, but it's .. you know what the case is. You get the complaint. You have to make a judgment on, is this simple? Is it kind of a moderate? Or is it going to be a complex issue? And then you put your best foot forward. The assignment of the person, whether it's an internal or external person, to that .. and I give independence to our chief because of her knowledge and the quality that she brings to this process and leadership.
But one of the things, if I can just share for a second, that I do at my level to ensure that we don't impede the process and that my counterparts at the executive level understand their role and responsibility, last year we implemented a quarterly meeting. Every quarter I meet with every administrator and their senior staff, and each one of my chiefs is present and we talk about where we are, where we're going, and how we get there.
We began that process last year by giving them a proper orientation to MD-715. There's not an administrator that was there then .. and we catch the new ones coming in .. and a deputy administrator or an HR director or a chief legal counsel or anybody on the senior staff, including the budget people .. that don't understand what MD-715 is.
And as Mr. Hadden said, this is a great tool. You know, I heard earlier that, you know, you were saying, "What can we do more effectively?" I think putting this out there for us and providing it as a model or a format for a tool that we can then apply in our agency .. the buck stops with us. It really does. And the answer that I give you, it's the effective use of technically skilled resources, that's the answer.
COMMISSIONER ISHIMARU: Could I ask one more question, Madam Chair? I'd like to get to the contracting .. to the schedule issue for a second. In order to get onto the schedule, what does a vendor have to show? What sort of experience do they need? Could I show up one day and say, you know, "I want to do federal EEO investigations," and, not having any experience, but having .. you know, having done some federal work, say, in the past.
How does one get on the schedule? Is that something that GSA controls? Does it depend on us at EEOC to come up with standards? How does that work?
MS. JACKIEWICZ: It actually is a GSA process. A vendor first has to meet certain certifications like they have to do their ORCA, which is the online representations and certifications. If they want to be recognized as a small business, they have to do their certifications through SBA.
We do review the contracts. We look for them to have experience first. We would like to see them making $25,000 in sales per year before they get on the program, because we also hold them to that requirement once a contract is awarded, that they are .. they need to maintain those sales for every year of the contract. If they don't maintain $25,000 a year in sales, then we can remove them from the program.
We do give them a 24-month period, especially for small business who takes a little bit longer to get started, but GSA goes through an award process with contracting specialists and contracting officers.
First, the vendor would submit an offer, filling out a solicitation, which could be anywhere from 100 pages or more that outlines their company, everything that they provide, what items they want to participate in, what has been their sales for those items, and who are their customers that they are currently serving, and they must disclose all their customers.
We then will go through a review process and negotiate the contract. We try to get what we call the best value or better discounts, but we base it on their most favorite customer, which is the category of customer they are giving their highest discount to. So GSA tries to get equal to or better than that discount on the sales.
COMMISSIONER ISHIMARU: But do you look at it from a substantive point of view as to whether the person trying to get on the schedule is qualified to do the job in that they've actually done this type of work?
MS. JACKIEWICZ: Right.
COMMISSIONER ISHIMARU: I imagine that there are plenty of potential vendors who do investigations writ large, or have done government work, government evaluation work, but haven't done EEO work. Is that something that GSA is concerned about, or is that something that the EEOC should play a larger role in looking at what the sort of base qualifications for someone on the schedule should be?
MS. JACKIEWICZ: Sure. What the GSA does is they have a kind of broad title, and then what the, you know, equal employment opportunity work, and then they have item numbers that break down the different types of work that will fall under that category. And the vendor who provides the offer to GSA has to show that they actually have experience in that complexity of the work for each item number that they're representing. They can't say, "I want to provide work for this particular item number and can't show any experience."
COMMISSIONER ISHIMARU: I see.
MS. JACKIEWICZ: And we normally ask for two or three examples of where they have done the work before, and that those customers are available to us to communicate with or to use for their past performance.
COMMISSIONER ISHIMARU: Okay. Great. Thank you. Thank you very much.
MS. JACKIEWICZ: You're welcome.
COMMISSIONER ISHIMARU: Thank you, Madam Chair.
CHAIR EARP: Thank you.
COMMISSIONER GRIFFIN: Thank you. You know, the thing I heard actually both Mike and Madeline say was that you're both doing two things, and they are components for why you're having timely investigations is you both have very strict internal timelines that you follow, and you're both using systems to track internally. And you can see every day where something is, and I think that's really important for everyone to hear.
Madeline, one question. It sounds like you have direct access to the head of your agency. How important is that to the performance of your program?
MS. CALIENDO: I do have direct access to the head of the agency, and I always have since I've been at GSA. And I find it is important, because .. and I have direct access not only to the head of the agency but to all the executives who head programs at GSA. In fact, we meet on a weekly basis, all the heads of programs, with the head of the agency and it's a very collaborative process. And so I think it is good, because it gets civil rights generally and equal employment opportunity at the table all the time.
COMMISSIONER GRIFFIN: Great. Thank you.
CHAIR EARP: Thank you. Thank you to the panel. We'll ask Panel Two to come forward.
Panel Two is a logistics challenge for us as we have six representatives. But I want you all to know that I am making my first test of GSA by purchasing a new table.
It's true. We'll see if GSA can have that table to us by the time of the next hearing.
COMMISSIONER GRIFFIN: Yes, do help us with that, Christy.
CHAIR EARP: Good morning to you all. Thank you for being here. Promise to invite you back when we get the new table.
We're going to start the second panel with our good friend Ernest Hadley, who is an Attorney at Law from Wellfleet, Massachusetts; followed by Mr. William Bransford, General Counsel for the Senior Executive Association; and then Andrea Brooks representing the Women's and Fair Practices from the AFGE; then Timothy Hannapel, is that right, NTEU; and then my good friend Delia Johnson, Co-President, Council of EEO and Civil Rights Executives.
Thank you for being here. Ernie?
MR. HADLEY: Good morning, Madam Chair and Commissioners, and also let me add my congratulations to the list of Madam Chair. It is I think a major step to have a Chair who is not only interested in the federal sector but understands the significance and the importance of it and the problems that we face. And I am encouraged by your appointment.
I'd like to thank the Commission for the opportunity to testify here today on the current state of the federal sector EEO investigatory process. Although I do believe the current process is flawed, I believe it can be fixed, but I believe it can be fixed only if there's an organized, a comprehensive, and a coordinated problem-solving approach.
The Commission has identified at least three facets of the investigative process that itís examining .. the timeliness of investigations, the quality of investigations, and the potential conflict of interest in having agencies investigate themselves. While I agree that each of these represents a distinct problem, they are interrelated and simply can't be solved in isolation.
As a starting point, I do not believe that the impact of the potential conflict of interest in having an agency investigate itself can be underestimated. Whether they are ultimately right or wrong, it is extraordinarily personal and painful when someone believes that he or she did not get a job because of their disability, did not get a promotion because of his .. the color of his or her skin, was denied favorable job assignments because of his or her religion or because of their age, and the current process asked those individuals to take an enormous leap of faith in trusting that the very agency that they believe engaged in that conduct can now fairly investigate it.
The perception of a conflict of interest that is inherent in the process is only exacerbated when an agency greatly exceeds the 180-day regulatory period for conducting an investigation, and it ultimately produces an inadequate result. The fact that the investigation takes longer than it should fuels the perception that the agency is not truly interested in fairly investigating the complaint.
The fact that the investigation is inadequate fuels the perception that investigators are biased towards agencies. When this happens often enough .. and I believe that it has .. those perceptions become widespread and affect the attitudes of complainants and their willingness to fully cooperate during the investigative process and to participate in that process.
This doesn't mean that agencies can't investigate themselves, but what it does mean is that we have to have measures to ensure that the process is both fair and perceived as fair. And those measures have to start at the top.
Since October of '99, EEO regulations have required that EEO directors report directly to an agency head. Yet by the Commission's own latest work .. federal workforce report, only 70 percent of agencies are in compliance. EEOC Management Directive 715 requires that each agency head annually issue and distribute to employees a written statement affirming their commitment to EEO and a discrimination-free workplace, yet four years after the implementation of that directive only 54 percent of agencies are in compliance, according to that same report. Quite simply, that's unacceptable.
Without a demonstrated commitment from the top, the perception that agencies cannot investigate themselves is likely to persist. That lack or perceived lack of commitment is further complicated by the fact that there are virtually no standards for EEO investigators, whether they be agency employees or contract investigators.
In my opinion, the single largest factor in substandard investigations is not investigative bias, as I'm sure many complainants believe, but a lack of understanding of EEO law and to a lesser degree, knowledge of investigative techniques. It's time for positions in the EEO field, including investigator positions, to be recognized as a distinct career path that requires the development of a distinct combination of education, skills, and experience.
Without a good working command of the theories of discrimination on which a complainant can proceed, and the agency defenses that go with that theory, an investigator, regardless of his or her level of dedication, cannot be expected to produce a quality result.
The result of that lack of a working command is that what we end up with is investigative reports that include evidence that relates to disparate treatment when the claim is failure to provide reasonable accommodation, but don't develop evidence on whether the complainant has an impairment that substantially limits a major life activity.
I'm not trying to blame the investigators here. I know that many of them work very, very, very hard. But the lack of standards is really a significant problem in my opinion.
MD-110 established standards for the first time, and it was a start, but those standards are presented only in summary fashion and are too vague to be meaningful. The standards need to be more fully developed to establish the specific knowledge and skills for investigators, and in addition those standards need to be enforced by developing a method which investigators can demonstrate competence before being released into the field.
And whatever standards are developed for agency employed investigators, need to be applied equally to contract investigators. Those agencies that use contract investigators need to establish rigorous quality control programs to monitor the adequacy of contract investigators.
Finally, Part 1614 changed the standard for agency EEO investigations from complete and thorough to adequate and appropriate. Specifically, that change was made to avoid the cookie cutter approach to investigations and to permit agencies to allocate resources to specific complaints. MD-110 suggested a number of alternative methods for investigation.
Agencies, in other words, were given a very powerful management tool to commit the necessary resources to those complaints that warranted them and fewer resources to those cases that did not. My experience is that agencies fail to take any advantage of that tool whatsoever.
I think it's a tool that can be invaluable to agencies in meeting the regulatory guidelines, but it's one that needs to be applied cautiously and it can't be fully utilized until there are adequate measures in place to ensure that EEO investigations meet minimal quality standards.
I'm encouraged by Mr. Hadden's comments on the inclusion, because I think while the problems can be fixed, they're not going to be fixed if the Commission simply takes comments, retreats into its shell, and comes back to us all several months later with great proclamations of change.
The stakeholders that you have included in this process have to be included throughout the process. I'm sure you're going to hear a number of views today, some of them diametrically opposed from some of my esteemed colleagues, and this discussion has to continue in order to come up with a comprehensive solution.
I've run out of time, so thank you.
CHAIR EARP: Thank you. Ms. Brooks?
MS. BROOKS: Good morning. I want to add my congratulations to Madam Chair Earp for your appointment.
I want to thank you for the opportunity to discuss what I and many others feel is a truly important area of concern for federal employees.
For those of you .. and I'm sure there's nobody in this room .. who believes that workplace discrimination no longer exists, I'm here to tell you that it is still a problem that many federal employees struggle with daily. These employees struggle to find a way to cope with what they believe is a wrong, a violation of their rights, the feeling that they have of being a victim of discrimination. But moreover, they do not see a clear way of addressing the problems.
The number of cases that are filed with the EEOC does not reflect the number of employees who believe themselves to be victims of discriminatory practices. It takes great courage for an employee to step out and enter into the EEOC process. They view that process a one of last resort, and it may not be in fact for those of us who represent those employees the very best case of their discrimination that have occurred over the past 20 years. And we find ourselves saying, "Well, why didn't you come to us before?"
And then, for us to review those statistics of frivolous cases, we have absolutely no .. no credibility in the view that frivolous cases are being filed. We find that more often those are very vivid, descriptive of an inadequate ROI.
Unfortunately, those same federal workers are intimidated by the EEO process. The intimidation occurs when the agency accused of discrimination conducts its own investigation into the allegations of discrimination. It continues when retaliation is witnessed by others because an employee filed a complaint, served as a witness in the EEO process or spoke out against a perceived discriminatory practice.
This retaliation is sometimes and often committed by the same managers who are perceived to be responsible for workplace environment where they are tasked with creating a workplace free of discrimination .. the same agency managers who now hire investigators to review and investigate those cases.
I was struck by the idea that the Postal Service had the best timeliness and efficiency. And I've also noted by some of the EEOC employees who tell us that they also have the most cases that are remanded back for another investigation, because they did not allow some relevant information into the ROI.
The very most efficient ROI that can be developed is one that does not .. is not encumbered by views of either witnesses or relevant documents. You just sit in your room and write a very good ROI. You can do it in 25 days.
The agency investigator or the contractor compiles documents that they deem relevant. They are also charged with conducting interviews of those who have knowledge about the alleged discrimination. The complainant cannot be certain that the documents submitted are included, or that the people they've been asked to talk to are actually interviewed.
It should be obvious that this is the opportunity for extreme abuse of power by the agency, the contractor, or the agency investigator, both of whom want to keep their jobs. I'm not just saying that they're not doing a good job, there needs to be protection for the investigator, whether they're employed by the agency or not. There needs to be a firewall that protect those individuals who are responsible for getting a credible ROI.
This ROI is deemed factual by the adjudicator of the complainant, and the way that we view those ROIs is that that process benefits the agencies and no way helps to deter workplace discrimination or is a boon to the complainant. The workplace is adversely impacted in several ways, because of this process.
There are .. I'm going to ask here that I be allowed an opportunity to revise and extend my remarks to the record, that it not be closed and give us a couple of days, a week, to review this.
We're proposing three things .. that the task of investigating EEO complaints in the federal sector be reassigned from the employing agency to EEOC. This will avoid inherent conflicts of interest. That a separate unit within EEOC be established to hear federal EEO complaints. And, finally, we're working very hard to get sufficient funding be allocated to hire adequate staff to perform investigations and process cases in a timely manner in both the public and private sectors.
We find that EEOC does a terrific job in the private sector, and the criticisms that you receive can all be related to funding and staffing. We . these recommendations obviously has widespread - it will take more than revising the current EEOC, but AFGE is committed to working on that, and we've been committed to working on making these changes so that our members and potential members can be having a fair and impartial hearing to what is a very, very personal charge of being discriminated against, of actually having suffered through that.
In my career .. and I've never filed an EEO complaint .. but I've trained many men who became my supervisors. I can tell you from a personal experience that this is not something that should be handled from a script. It's not something that should be handled in terms of how many cases. These are real people, really hurting, and we should not lose sight of that.
CHAIR EARP: Thank you, Ms. Brooks.
MS. BROOKS: Thank you.
CHAIR EARP: Unless there is objection from my fellow Commissioners, we will hold the record open for three days, so that you can supplement your testimony.
MS. BROOKS: Thank you.
CHAIR EARP: Okay. Mr. Hannapel?
MR. HANNAPEL: Thank you, Chair Earp, and also Commissioner Griffin, for putting together this meeting and for inviting the National Treasury Employees Union to participate. And I also appreciate the opportunity to present a statement on behalf of NTEU President Colleen Kelly. And I will try to summarize my statement and not .. you folks have it for the record, and so I won't .. I won't read from it.
I'm really struck by the remarks of both Mr. Hadley and Ms. Brooks about how personal this is, and the problems that are inherent in asking the agency to investigate itself.
In NTEU's experience, we .. the approximately 160,000 employees that we represent are covered by our collective bargaining agreements which always contain a negotiated grievance procedure, and those employees are able to either go through the statutory appeals procedure which include filing the complaint with the agency itself and the agency investigation that we've been hearing about this morning, or, filing a grievance through the negotiated grievance procedure. We generally recommend to our folks that are in our bargaining units that they go through the grievance procedure to avoid many of the problems that we've been hearing about this morning. For several reasons, we provide that advice.
The first is, just as a practical matter, the grievance procedure allows many different allegations to be heard in one forum. So it could be violations of the collective bargaining agreement, violations of other civil service statutes, in addition to Title VII and the Rehab Act. It could be heard in one forum. That person gets advice from a union steward who is not a member of management's team, and that person then has access to independent adjudication from an arbitrator, a third party arbitrator, and that's a real advantage.
As a practical matter, when an employee .. in the instances where we do find ourselves working with an employee who has filed an EEO complaint through the agency's process, we find that the employee really has put himself or herself at the mercy of the agency process with no true opportunity for independent investigation or adjudication until far later in the process than should be occurring.
As the Commission acknowledges, the agency investigation is subject to, at a minimum, a perception of conflict of interest. And in NTEU's experience, that conflict of interest is more often real than just perception, due to the simple fact that the agency has complete control over the investigation, whether it's contracted out or whether it's done in-house.
When it's done in-house, most frequently the investigation is conducted by a non-bargaining unit employee of the agency, and ultimately those investigators have to answer to the supervisory chain of command that also controls their own tenure of employment. In other words, the agency investigator ultimately is investigating the very management that also controls his or her own hiring and firing, and that's a real conflict of interest, not just a perceived one.
That conflict of interest, whether it's real or perceived, undermines the credibility of the investigation. And where a report of investigation becomes a factual basis for the agency decision, if that credibility is undermined, it can't provide a proper basis for fact-finding.
So NTEU recommends that for any real improvement to the initial EEO investigation to occur, you have to focus on the independence of the investigator. Only an independent investigation would have credibility in the eyes of employees and management alike, as well as Congress for that matter.
Without an improvement in the credibility of the process, the Commission can't expect any real increase in the likelihood of resolving cases short of an independent adjudication, whether by the Commission or a federal court with an attendant cost or savings improvement.
NTEU best recommends that the Commission take steps to enhance the independence of the initial investigation. And one such step, as Ms. Brooks and AFGE would recommend that we would also agree with, would be for the EEOC itself to conduct such an investigation. Of course, there are obvious significant budgetary limitations to such a change, especially if it were implicated across the government.
And it would be unlikely, frankly, for Congress to support such a change unless the Commission could first demonstrate with empirical evidence the benefits that would result. And such .. the benefits that could result are that if there's true independence of an investigation, employees are going to be able to say, "Okay. This is what an .. this is what a truly independent investigator has found. Maybe I shouldn't go forward."
At the same time, a truly independent investigator is going to be able to find that it .. that agency managers have engaged in discrimination, and the agency is going to be able to accept that short of an adjudication. You know the percentages of final agency determinations against employees. It's in the high 90s. It's time for the independence of the investigator to be enhanced.
So, therefore, one way that you could do that, short of all the budgetary implications, is to try a pilot program on a small scale basis by entering into a memorandum of understanding with a federal agency partner.
Try to find a federal agency that would be willing to work on such an arrangement with you, and see if there are some benefits that could be gained right away. It would have to be an agency that's large enough to have a volume of cases, so that you could get some demonstration early on, but that's what we would recommend.
Thank you very much. I'm happy to take any questions.
CHAIR EARP: Thank you. Large enough to have a volume of cases and to pay us for doing the additional ..
MR. HANNAPEL: Well, you know what? You know what? We would .. we would join .. be careful about the payment part, because that goes to independence. I have to say, just as an example, since you raised this, when I was at the Office of Special Counsel we fought very hard for Congress to allow Transportation Security Administration screeners to have whistleblower rights. And although they didn't agree with us, there was some report language that was included, and so we went straight to Norman Mineta and we said, "Secretary Mineta, let us at the Office of Special Counsel at least provide an independent investigation to your security screeners. Let us investigate those charges and report to the agency. We are an independent federal agency." And when we looked at whether we should be funded for those or not, no, if TSA funded us, there would be a question of independence. So ..
CHAIR EARP: I'll use funding as a misnomer. So noted, the potential conflict, but, you know, heads up for everyone whose recommendation includes the Commission taking on additional work. We will certainly look at it, but understand that our plate is pretty full.
MR. HANNAPEL: We agree, and that's why the idea of a pilot program is one that might be an opportunity to take a first step.
CHAIR EARP: For the suggestion, thank you. Thank you.
MR. BRANSFORD: Madam Chair, members of the Commission, I am William Bransford. I am General Counsel of the Senior Executives Association. SEA is a professional association that represents the interests of the career federal executive, particularly members of the Senior Executive Service.
I also come to you as an attorney with 23 years of experience representing federal employees in the federal sector EEO complaint process, including a great deal of experience in agency complaints, the investigations, and work at the EEOC.
In that regard, let me echo as a practitioner everything that Mr. Hadley has said. I agree with him wholeheartedly.
I would like to add a management perspective. And while I agree with much of what Ms. Brooks and Mr. Hannapel said, in fact I think I agree with most of what they said, I don't agree with everything. I would like to offer that management perspective, particularly to address the issue of frivolous complaints, because I think .. I think there are a great many frivolous complaints that do clog up the system, and do affect the federal manager and the federal executives' ability to manage the federal workplace.
SEA believes that a very significant hindrance to the efficiency and fairness of our federal workforce is the current state of the overall employee appeal, grievance and EEO complaint process. And in the case of EEO investigations and adjudication, we view the problem as particularly severe.
The central concern with the federal sector EEO system is that EEO investigations and the entire initial processing of a complaint are carried out by the very agency accused of discrimination. Many frivolous complaints clog the system, because they are meticulously investigated, often unnecessarily.
These detailed investigations have significantly .. of a significant number of obviously frivolous complaints occur to avoid allegations of a conflict of interest. Federal employees know that they have a right .. a property right in their employment recognized by the Supreme Court and the United States Congress. And that sense of process comes down into the EEO system, and when a federal agency EEO director or EEO official is concerned about dismissing a complaint that they know is frivolous, they know lacks merit, they are worried about that allegation of conflict of interest, so they investigate it.
They throw it to the investigator, they let the investigator come back with a pile of documents, sometimes several inches thick, and they say, "I've done my job; there is no allegation." And then they throw it to the EEOC Administrative Judge to issue a decision or the agency people who process final agency decisions.
These detailed investigations occur to avoid these allegations, and we think this is reflected in the statistics. 1.5 percent of approximately 23,000 cases result in a finding of discrimination. When you factor in the settlements, that still leaves 17,000 cases last year which were resolved without a settlement, without a finding of discrimination.
And while certainly not all of those cases were frivolous, many of them were, and the manager has to manage that employee, because usually .. federal employees are usually still at work, unlike the private sector where many of the complaints occur and are filed by fired employees, those employees remain at work for the most part, and the manager must still manage the employee. And many of those complaints should be screened out early in the process, but they are not.
The clogging of the system results in delay. You've heard about the 237 days, a substantial improvement. But a case with an Administrative Judge at the EEOC takes almost two years, and, of course, these are only averages. I know from my personal experience as a practitioner many, many cases take a lot longer. And while it's terrible for the employee to have to wait that long for a decision, particularly if there's a finding of discrimination .. and I personally have had that experience as a representative .. it's also really hard for the manager when there are so many cases in which there is not a finding and they are sitting there hanging over the manager's head for so many years.
The litany of problems inherent in the EEO process starts with the investigation. However, the problem is not as some might maintain .. and, again, where I disagree with my union colleagues .. it isn't simply a matter of funding, nor is the problem due to shoddy work on the part of the investigators. There is an inherent problem with the structure of the complaint process.
Currently, once an EEO complaint is filed, even the best manager must think carefully before deciding to take an action or to engage in the frank day-to-day conversation about performance and workplace conduct that must be a part of successful management. For a manager, the most difficult step in dealing with a problem employee is often that first step that invites adversity, often in the form of an EEO complaint that can linger for years.
The result is many managers come to the unfortunate and mistaken conclusion that it is better to ignore a problem employee rather than to invite EEO complaints that may follow from doing the right thing and confronting the employee. As a start, the system should be revised so that the investigative function goes outside the agency. SEA does not recommend that the EEOC do that work.
While we are very comfortable with the current EEOC, because you are looking at this problem, the current Chair has a great career as a federal sector EEO manager, and we know that there is going to be some emphasis on the federal sector, the fact is the EEOC does also look at the private sector. And quite frankly, one of the issues that I've discussed with Mr. Hadden in the past is the fact that when an EEO case is processed by the Commission with an Administrative Judge it's done so in the various districts and regions in a very different way. And so I think there needs to be more uniformity in the way that's handled.
We would recommend an independent agency. We've testified that way in Congress, creating a federal employee appeals court. We don't think that's the only solution, but we think that is one way to get the investigative process out of the agency. And we think it's an important first step in clearing up this inherent problem of agencies thinking that there's a conflict of interest. There is a conflict of interest, and we would ask that serious consideration be given to that.
I conclude by thanking you for the opportunity to testify on behalf of SEA. I applaud you for working to examine and hopefully resolve this important issue, and we look forward to working with the EEOC and to its staff to find a common sense solution to these complex problems.
Thank you very much.
CHAIR EARP: Thank you.
COMMISSIONER ISHIMARU: Madam Chair, could Mr. Bransford maybe tell us a bit more about this court, just for our record? I know there have been hearings on the Hill, but would that also address the investigatory side or just the appeals side?
MR. BRANSFORD: Commissioner Ishimaru, that would .. I mean, it would take a lot of time to discuss that, and I was asked to testify in Congress about the Senior Executives Association's proposal to create an independent court, but it would consolidate the EEOC's federal function, the Merit Systems Protection Board, the Office of Special Counsel, labor arbitration, some of the FLRA functions, and it would include .. our proposal would include a branch of court, an independent court that would investigate EEO complaints. So that, that's what we have set forth, and primarily what I've indicated here today is one of the major reasons why we've made that proposal.
COMMISSIONER ISHIMARU: Thank you.
Thank you, Madam Chair.
COMMISSIONER GRIFFIN: And actually, Stuart, just to let you know, we have a copy of that .. of your testimony before that first hearing about the appeals court. So we can get you a copy of that.
COMMISSIONER ISHIMARU: Thank you.
CHAIR EARP: Ms. Johnson?
MS. JOHNSON: Good morning to all of you. And as the co-chair of the Council, I really first of all want to thank Commissioner Griffin for taking on this task, and also for inviting the Council, because as now Chair Naomi Earp knows, we have had a long-standing in our efforts also with regard to improving the federal sector complaint system.
Before I start, I just wanted to mention my co-chair, Jorge Ponce, is on travel this week, and I know in the audience we have many of .. or members of our Executive Committee who play a great part in helping us, like Mariam Harvey, Benita White, Aaron Marshall, Charles Miller, and Robert Jew. So we do want to .. you know, I always want to acknowledge that it .. the Council is a body, and it is not just Jorge Ponce and Delia Johnson.
So, again, having this privilege I believe it is very important, because it is our belief as EEO practitioners that in many of these discussions we are forgotten and excluded from many of these types of discussions. And the improvement of this process and the focus as we are today focusing on this crucial, I would call, area that will lead to the success of our federal sector EEO programs. I know that we are dilute .. we are really overwhelmed as a matter of fact with the criticisms that we have received over a number of years. And when I say "a number," probably a decade, the length of time it takes to move these complaints through the system. However, I do want to mention that for the past year, and maybe a bit longer, a group of EEO officials and stakeholders have been meeting with the former .. as former Commissioner Earp on this issue of improving the federal sector EEO investigations, and I believe it is through those efforts that you have also seen a number of improvements within the various agencies. And we want to commend agencies, because I know this is a looming topic of the improvement of investigations, but as we heard here today there have been a great deal of improvements.
As we discuss .. as this panel is set forth to really address the issue of perceived conflicts, I feel that it raises sort of a plethora, as I say, of concerns. This investigation area raises a number of concerns with complainants within agencies, with supervisors, managers, and the entire agency. I mean, when an investigation is ongoing, you have a number of parties involved.
And even though, as you know, we .. and we've said here today investigators must be impartial, they are not to be advocates. However, in many instances you find that investigators at times may present themselves as being partial in some way. And we truly encourage, and in my agency I know specifically encourage all parties, be they the managers, employees, to let us know, because at any time that we feel that investigators are not performing the function as we have stipulated it, they are replaced immediately.
And we also know that there has been, you know, a number of recommendations because there is the belief that agencies truly control these federal .. the federal investigative process, and, therefore, it fuels, as I hear some of my panel members indicate, that it has fueled a number of criticisms. I believe that much of it comes from the untimely issue and the quality. I believe the perceived conflicts are really fueled by the issue of timeliness and quality, and I believe once that is addressed then we will be moving towards a better product.
Now, I heard, as Ms. Brooks indicated, that EEO is still .. I mean, not EEO, but discrimination is still a very live part, we know, of the federal workplace. And we acknowledge that as EEO practitioners. We are on the front line, so we are there daily meeting and immediately being the first contact in issues of this nature. So, therefore, we .. we do our best in terms of presenting what we would call the impartiality that's needed, because as EEO counselors, you know, we have heard, "Well, let's move this whole area of investigations out of the agencies." Well, what about EEO counseling? You know, there has been that discussion, "Let's leave EEO counseling there." We're still there. We're still on the front lines. We're still trying to make a difference and to reduce the number of cases that are moving into the formal process.
So, therefore, I think that when you look at this you have to look at the entire process. And I also heard my panel member indicate the use of negotiated grievance procedures. Well, that's .. I believe moves from agency to agency.
What happens in some agencies, the unions are overwhelmed. They do not have resources to handle the cases, so they in many instances have sent their clients or individuals coming to them to the office of EEO or civil rights. And, therefore, I think another very important thrust in all of this is the relationship between the unions and the EEO offices, because in most .. in many instances, and we .. it has been reported to us that the unions cannot handle it, and I think we still need to go back to looking at the fact that a union steward is still being paid by the agency. You know, we are all being paid by the agency. So no matter what we say, we are all part of the .. you know, I usually have this issue, I tell people just make sure everyone is being paid on time.
But the bottom line is that as we go through this, even though we are viewed as directors and EEO practitioners, as part of management, I believe that anyone who takes on this responsibility and is committed to the area of providing the model program, as Carlton mentioned before, you will know immediately that that .. there is a neutrality that's there. And any EEO director must .. must have that courage to go forward, as Madeline Caliendo said, sitting in those meetings you are there to let the head of the agency know exactly what needs to happen.
Now, in my piece .. and I see I'm running out of time .. I also mentioned the issue of moving this process or this phase of the process to the EEOC. I believe that the EEOC has done a tremendous job in addressing its backlog with regard to hearings and appeals, but I do believe that moving this area to the EEOC would be a tremendous disaster because of not only funding resources .. and as I heard mentioned today, I mean, they really do not have the capability of handling it.
But again, I'm willing to take questions. You have my statement there with you, and I believe that if there are .. you know, if you have any questions, please don't hesitate to let me know. And I thank you again for the opportunity to address you on behalf of EEO practitioners.
CHAIR EARP: Tremendous disaster if we take it on?
I think I would have to disagree with that.
MS. JOHNSON: Not quite.
CHAIR EARP: But thank you to the panelists. It has been a spirited discussion, and I don't want to lose the momentum that we have, but I want to exercise a point of personal privilege and call for a potty break.
CHAIR EARP: To make sure we keep the momentum, though, I want to ask you to be back in seven minutes.
(Whereupon, the proceedings in the foregoing matter went off the record briefly.)
CHAIR EARP: Can we get started? We want to ask the second panel to please be seated again. We're going to reconvene.
A couple of things .. that was the longest seven minutes in history.
I'm sorry, but everyone seems grateful. Also, in the ladies restroom a ring, very beautiful ring, was left on the ninth floor in the ladies restroom. Bernadette has that piece of jewelry. If you believe it's yours, you will have to describe it to her before she relinquishes it to you. And you can take care of that after the meeting.
COMMISSIONER ISHIMARU: I am not aware of jewelry being left in the men's bathroom.
CHAIR EARP: Okay. Thanks again to the panel. It was a spirited discussion, a lot of food for thought. I want to start first with questions, comments, concerns, with Commissioner Silverman.
COMMISSIONER SILVERMAN: Hi, Mr. Hadley. How are you today?
MR. HADLEY: I'm fine. Thank you.
COMMISSIONER SILVERMAN: I wanted to ask you to elaborate on your comments that we need .. that better standards are needed for our counselors and investigators. Given your expertise and experience, do you have any more specific suggestions as to what additional standards should be prescribed? And let me say that I still think that this is not enough to have this meeting and then go into a corner and use what you said. We still definitely need to meet with people, but I just wanted to have a better idea of specifics.
MR. HADLEY: Sure. And one of the reasons I do have specifics is because I train counselors and investigators. Occasionally agencies hire me to do that, and I've worked for a group where we've done some .. some programs which .. and it's very difficult to get agencies to pay to have counselors and investigators come to programs.
But I think ..
CHAIR EARP: Mr. Hadley, may I interrupt you for just a minute?
MR. HADLEY: Sure.
CHAIR EARP: I forgot, I was told to ask each of the speakers to speak more directly into the mike.
MR. HADLEY: Oh, okay.
CHAIR EARP: So if you ..
MR. HADLEY: Sure.
CHAIR EARP: Thank you.
MR. HADLEY: Thank you. But specifically, in terms of the training for counselors and investigators, I think at a minimum each counselor and investigator should know what the various theories of discrimination are, what the elements of every claim are, and, you know, because there are differences in whether you're alleging intentional discrimination, you've got circumstantial evidence, or perhaps you're relying on disparate treatment. That's radically different from a hostile environment claim. It's radically different from a reasonable accommodation claim or a retaliation claim. And there are different defenses that the agency has, and I think a lot of the quality of investigations and the lack of quality is the investigators .. and to some degree also the counselors, but their role is a little different .. not understanding what those distinctions are, and the types of claims, because that shapes your investigation right there.
So I think, you know, that certainly .. procedurally, I think there could be better education. And this is a very truncated process. Nobody .. the counselor never sees what the investigator does. The investigator doesn't see what the counselors .. you know, the judges don't see this. The only one who sees it is the complainant from start to finish.
So I think a better education at what the process is about, and everybody's role in the process, are some of the specifics that need to be developed.
COMMISSIONER SILVERMAN: And on that, I'm also intrigued by the idea of establishing a method by which investigators demonstrate their competence. Can you elaborate a little more on what kind of method you have in mind?
MR. HADLEY: You know, the tried and true method is testing you. You know, whether it's multiple choice, whether it's essay, at some level you have to test people on what they have learned so that they demonstrate competence and an understanding of it.
And, you know, what comes to mind as I sit here is the old tried and true method that most of us went through is you give folks a hypothetical, and you ask them to analyze it and see if they can do it. And if they can't, well, then you know you need some further training. But you're sending these folks out in the field. They're the front lines for everybody. Demonstrating practical competence I don't think is an unreasonable thing to ask.
And, again, I'm not blaming the investigators. I don't think the training has been there or the recognition that this is a valuable and valued career field.
COMMISSIONER SILVERMAN: What do the other panelists think about subjecting investigators to the bar exam?
MR. BRANSFORD: I would not recommend having them take a bar exam, but certainly I think there could be improvement in the area of standardization and some sort of certification.
I have had a number of discussions with EEO professionals over the years, including some people here at the EEOC, about what happens if you don't do your 32 hours of training and your eight hours a year. What kind of enforcement is there? You know, and does the EEOC really hold people accountable to that?
So, I mean, that's certainly a first place to start, some accountability on that. But I am concerned .. I mean, I see a lot of very qualified people out there doing investigations, and some wonderful EEO counselors, and there's also some that just really don't cut the grade.
MS. JOHNSON: I believe that it would be a good idea to have some type of benchmark for investigators. I feel that there are those independent investigators that I know we've used for years like James Gee and Plotnick .. Stuart Plotnick, excellent independent investigators.
Then you have those companies that are doing a great job like Delaney, Siegel & Zorn and JDG. Most agencies are right out there saying, "Whatever we give them, we're getting it back in a timely .. and the product is also of quality." So I believe it also falls at the .. I would say the responsibility of the EEO directors and their EEO managers to make sure that those that they are contracting with have the experience, knowledge, and all of the requirements necessary.
COMMISSIONER SILVERMAN: Okay. Thank you.
MR. HANNAPEL: I would just say that in so many agencies this is a collateral duty, and one that's not subject to performance appraisal and evaluation, along with the .. all of the .. you know, the performance management reforms that we've been subjected to, this is .. has been set aside.
And if people aren't going to be evaluated on this performance, then it's going to be difficult to enforce standards. So that's a place to start. But it would be difficult to start it with an EEO director for whom it's also a collateral duty, and with an EEO director who actually doesn't report directly to the head of the agency.
So I really .. I guess I have to echo what Bill Bransford just said about the 32 hours of training to begin with and the eight hours of supplemental training a year. If there isn't an enforcement mechanism to begin with, that's a problem.
COMMISSIONER SILVERMAN: Thank you.
CHAIR EARP: Commissioner Ishimaru?
COMMISSIONER ISHIMARU: Thank you, Madam Chair.
I want to welcome the panelists. I thought it was an excellent presentation. I especially want to welcome Andrea Brooks. I know that AFGE represents many of our employees here at the EEOC and does a fabulous job of doing it, and, frankly, to meet Mr. Hadley, who I always thought never actually existed, was sort of like ..
MR. HADLEY: I did once start a phone call with somebody by saying they thought I was dead.
COMMISSIONER ISHIMARU: It was sort of like Prosser on torts.
Hadley is coming. And I thought, well, that's .. that's really going to be quite a trick, but thank you.
Thank you very much. I ..
COMMISSIONER SILVERMAN: He does it from Wellfleet.
COMMISSIONER GRIFFIN: In beautiful Massachusetts.
COMMISSIONER ISHIMARU: I am interested in the whole notion of the inherent conflict of interest and the .. what appears to be a real problem within the agency that if you have an EEO office within the agency, you also have the defense of the agency within the agency by the General Counsel or whoever provides legal advice to the head of the agency, a natural type of tension that's there.
How can we, from the EEOC's perspective, better address this sort of intrusion within the agency? Is there something we can do institutionally throughout the government to try to deal with inherent conflicts that will come within the agency itself? Because the head of the agency is being counseled by their lawyers to deal with this issue, to get involved in the EEO process, I assume at times, how can we at the agency here do a better job of addressing this issue?
MR. HADLEY: Well, if I may, again, I think you need to set some standards for what consists of a conflict of interest. And in MD-110 you set a lot of standards about disqualification or suspension of counsel for misconduct, but addressing the conflict of interest .. because I've tried to address this with Administrative Judges, and they're not clear.
I mean, what happens when the General Counsel's office is defending a claim of reasonable accommodation by a complainant, and at the same time advising the reasonable accommodation coordinator on the agency on a brand-new pending request?
Well, this to me is .. I mean, if you're saying in the litigation that the claim is invalid, you can't advise that. But there are no standards, and so even just to convince your judges that this is wrong, I think you've got to set what the standards are and say what the demarcation is, other than just saying that you can't have the defense function and the EEO function together.
MR. BRANSFORD: I'm not sure I agree. I've actually .. I mean, I think the EEOC has taken the position, or certainly many agencies feel it has taken the position that the General Counsel's office should divide itself up .. one part should give advice to the EEO Director, the other part should do the adjudication. And I know there are some agencies that do that scrupulously. And I actually find it sometimes to be an impediment to have to deal with different lawyers. And I sometimes think that there really is no conflict or, again, there's a perceived conflict. Therefore, you're going to be so careful that you don't touch it, because you don't want to have to address that question. And I think we should all remember that lawyers are just advisers. They give legal advice, that is the manager, all the way up to the Secretary, the head of the department, the head of the agency that really is ultimately responsible and makes the decision.
So I .. I'm not so sure that I necessarily agree that disqualifying certain parts of the General Counsel's office is something that's helpful.
MS. BROOKS: There's a whole cottage industry of attorneys who are building excellent careers and income from no conflict. They've proven that there is conflict, and they won cases that have been decided that were frivolous. So I think the EEOC should expand its work with the agencies in getting the agencies to spend 50 percent of the money that they spend on defense on changing the culture and eliminating discrimination.
If we can train managers as to what constitutes hostile work environments, and eliminate the harassment, hostile places, eliminate the fact that just because a person is disabled does not mean that they are unable, and if we could spend that kind of money on educating and say that employees do not get in the way of mission, they are there to fulfill the mission and they should be the number one product or statistic in filling the agency's mission.
Now, that's a very human thing, and it's so simple that most people would not give it any value. But until we change the climate and the culture, we'll be spending more and more money on defense.
MR. HANNAPEL: I really .. I'm not sure there's anything the Commission can do about the basic problem. It's really a structural problem of asking the agency .. certainly you want the agency to eliminate the root cause by training people, and you also .. but you're also asking the agency to conduct and prepare a report against itself that becomes a part of the case against itself. And this is a very difficult thing.
You don't have that in the private sector, and I think you need to look at the difference between .. as I always understood it, the reason for asking the agency to look at itself was well intentioned. The federal government is a model employer. It should have the opportunity to correct itself before the problem gets .. you know, to clean its own house, if you will.
But now we've gotten to this institutionalized place where we .. where we ask the agency to conduct a report against itself .. I'm sorry, an investigation of itself, that becomes an element of fact-finding in the case that goes forward. And I think that's a structurally inconsistent problem.
So I'm not sure that that's helpful, but it really .. it almost gets back to basics.
MS. JOHNSON: I think one of the main thrusts of all that the agencies do, specifically in the EEO office, is to attempt to resolve matters at the earliest stage of processing, and that, as you know, is shown through the effective .. through effective counseling.
But also, when you receive the report of investigation, that is the first tool that you have with .. before you with affidavits, sworn testimonies, and you are now armed with a product that you can go forward to be at the head of your agency, or to the head of a component, and actually argue for an immediate resolution of that particular case.
So that's why it is our belief that that phase of the process needs to remain with us. Now, it is not to say that there are not these perceived conflicts, which I believe we are continuing to address. However, I believe that having the agencies review these .. or having these reports conducted there, we are able to immediately address those problems.
COMMISSIONER ISHIMARU: Madam Chair, could I ask one more question, just to throw it out there and see what sort of response I get and I'll stop?
CHAIR EARP: As long as you are efficient.
COMMISSIONER ISHIMARU: Thank you.
You know, we've been grappling here at the EEOC with the whole question of contracting out, and I know for when we dealt with our call center and whether to contract that out, there was a long debate on the whole question of whether this was an inherently governmental function or whether it could be better done in the private sector. And we're still in that process of trying to figure it out, whether it works well or not.
Here in this case of contracting out to what Ms. Johnson said are some very good contractors who are out there, people who understand how to do it, and given the possible or the .. or the built-in appearance of conflict, does it make sense here to expand the contracting out beyond what's being done now?
Is this a way to avoid the inherent conflict if somebody else is doing it? And if you could decouple the funding .. you know, there's all of these tricks to it, but does this make sense? Is this a solution? Or is this part of a solution? But I'd be interested in getting reaction.
And I'll stop asking questions. Thank you, Madam Chair.
MR. HADLEY: I'm going to say it's not a solution. First of all, I think it is inherently a government function, but it's a function that has been given to this Commission. Second of all, I'm sort of reminded of Senator Glenn sitting in the rocket waiting to be the first man in orbit and thinking, yes, thing was built by the low bidder.
There is .. I think you trade one conflict for another, and that's the potential conflict of interest of the agency investigating itself with the conflict of the investigation firms who have legitimate business interest in doing an investigation as quickly as possible with as little work as possible and as efficiently as possible. And that's not always consistent with quality.
MR. BRANSFORD: I think when the investigation is done, a government employee has to look at it and make a decision, is there discrimination or is there not discrimination? And that part is inherently governmental, and it can't be contracted out. So I don't .. I don't see how the enhanced contracting out can make a dent on the conflict of interest problem.
MS. BROOKS: And from the employee's point of view is that the decision has already been made, and that the role of the agency is to find no discrimination. And the report of investigation supports that .. no discrimination.
Now, that's the perceived from the complainant's point of view, and it .. the idea is whether it takes 25 days to do it or 360 days to do it. They figure that this is a loop that I have to go through, but they're not going to find evidence of --that I have been discriminated against.
So expanding the contracting out does not help that at all.
MR. HANNAPEL: And I'll just reflect what Andrea just said. It has become a tool of oppression .. the entire process. That's the way people perceive it, and it's something they have to suffer through.
And the only other point I'll make is .. and maybe Commissioner Griffin will .. I understand that the contract oversight on the big dig was contracted out. And so that just .. to also echo what Ernest said, you don't want to have that motivated by who is the lowest bidder.
COMMISSIONER GRIFFIN: I'll refrain from commenting on ..
CHAIR EARP: With that as the final word, and the potential conflict from our Commissioner from Boston, shall we give you, Mr. Hannapel, the last word for this panel and ask the other panel .. the final panel to come forward? Oh, I'm sorry.
COMMISSIONER GRIFFIN: All I wanted to say .. I did .. the only thing I wanted to ask, and I .. this is probably just to throw out there for you to think about it, maybe not even comment now, is there something in the middle? Is there something, aside from giving it all to the EEOC or to a federal appeals court, which is also going to be I think very difficult to fund frankly, you know, to start up a whole new entity like that, another independent agency, is there something in the middle that we can do to actually alleviate the employee's concern as well as the practitioner's concern about the conflict of interest?
Is there a way that enhanced contracting .. you know, maybe the decision when they get the investigation back doesn't go to that agency, you know? Maybe it doesn't. Maybe an independent person makes the decision and then talks to you as .. as the EEO Director, and you go to the head of the agency.
I also think until these jobs are considered, this is a profession, these are professionals, and they report to the head of the agency. Until all of that is really, really done and people really embrace that, we're still going to have this sort of half-assed approach to discrimination in the workplace. I shouldn't have sworn, but ..
CHAIR EARP: It's on the record.
COMMISSIONER GRIFFIN: That just dawned on me as it came out of my mouth.
CHAIR EARP: Yes.
COMMISSIONER GRIFFIN: There's 30 percent of the agencies right now don't report to the head of the agency, and that's .. that's just wrong, and we have a regulation that says they should and yet they still don't. And, again, what can we do about that is another question. So ..
CHAIR EARP: Well, Commissioner Griffin raises a good point about middle ground. So I would ask our panelists as well as the audience, people who have a vested interest in federal sector investigations, to consider other organizations that look at themselves and whether or not they provide a model.
Law enforcement has internal affairs. Agencies look at itself for auditing purposes, for health and safety purposes. Agencies have IGs that are paid by the agency. I'm not saying that there is no conflict. I think it is.
The question, though, legitimately is: is it a flawed model to have the agency take the first shot at trying to correct its own problem?
And with that, I'm going to exercise the final word and ask the last panel ..
.. to come forward. Thank you.
The final panel represents pretty much the tail end of the process. We have two private sector contractors represented and an AJ. We'd like to hear what they have to say about the process, and we'll start with Elizabeth Lytle, who is the Director of EEO Counseling & Special Reports with Delaney, Siegel & Zorn; followed by Donna Gonzalez, Senior Vice President, JDG Associates, from San Antonio, Texas .. thank you so much for traveling out .. and then finally, Andrew Culbertson, Supervisory AJ, Washington Field Office.
MS. LYTLE: Thank you, and good afternoon. My name is Elizabeth Lytle. I am a senior staff member of DSZ, a 100 percent women-owned small business that has been conducting EEO investigations in the federal sector for more than 25 years.
On behalf of DSZ, I thank you for the opportunity to present our ideas on how to strengthen the quality of federal sector EEO investigations. We at DSZ believe that the following improvements would result in a demonstrable increase in the quality and timeliness of investigations. First, a reduction in delays between agency receipt of the complaint and the issuance of the letter of accept/dismiss.
Agencies generally take between two weeks and six months to issue a notice of accept/dismiss. As the EEOC's Office of Federal Operations pointed out over two years ago, high levels of inefficiency and delays in issuing letters of acceptance can result in serious time and cost ramifications.
Delays in issuance of the letter of acceptance severely reduce the time for the investigation and time for the agency's review of the quality of the report of investigation, and may actually cause the investigation to exceed the regulatory timeframes. We applaud GSA's internal requirement that letters of acceptance/dismiss be issued within 25 days.
Second, we support enforcement by agencies and the EEOC in the legal requirement that employees cooperate in the investigation and provide requested testimony and documentation in a timely fashion. This means that the EEO directors must have the authority to compel agency employees to cooperate in the process.
Agencies should include cooperation in any official investigation as a requirement in the standards of employee conduct and discipline employees who refuse to cooperate. While the EEOC's regulations specifically require that the EEO directors shall be under the immediate supervision of the agency, only 70 percent of federal agencies with 100 employees or more actually are.
And our experience is that a fair number of EEO offices do not have the authority, or perhaps the support, to compel the testimony of reluctant or uncooperative witnesses or ensure that the investigator receives the necessary documentation in a timely manner. This has huge implications for both the quality of the investigative record and the ability of the investigator to complete the investigation in a timely manner.
Third, we'd like to see the Commission provide specific guidance and training to the EEO community on the use of the variety of fact-finding models and devices that are available for investigation, to include identification of the types of claims that lend itself best to each model.
Too often federal agencies adopt a cookie cutter approach to investigations when a thorough review of the circumstances under which an allegation of discrimination occurred and a comparison of the complainant's treatment with that of similarly-situated employees might be accomplished through a variety of fact-finding models, such as straightforward requests for and exchanges of information.
The use of mini-investigations and other alternatives to the standard investigative process where appropriate can save valuable time and resources for our agencies. Again, the Excel conference would be a good forum for such training.
Fourth, we believe the quality of investigative work would be improved by the development and publication of uniform standards for each relevant required product that affects the investigative record. All those who work within the federal sector EEO investigation system understand the snowball effect of each step of the process.
Improved counseling reports should lead to improved letters of acceptance and dismissal, which in turn should help focus investigations and result in better reports of investigation. Expanded MD-110 standards, examples, and training in writing counseling reports and letters of acceptance, clear guidelines from the Commission with regard to supporting properly-utilized, expedited dismissals, should help improve the ultimate investigative product.
Administrative Judges see thousands of EEO investigative products, and are in an excellent position to identify the impediments to providing complete records. Perhaps an AJ's committee could gather and publish feedback on common and repetitive problems with investigative reports, as well as on investigative best practices. Their insight would be respected and appreciated in the EEO community.
Additionally, perhaps committing a special track day in the EEOC's annual Excel conference that addresses investigative best practices would be a way to stimulate an ongoing discussion among EEO professionals on how to continue to improve the quality of investigative files. We would support the EEO leadership summits that were recommended by Mr. Hadden as well as the focus groups he mentioned.
Additional guidance from the EEOC also would be helpful in the area of definitions and standards of proof for harassment and hostile work environment claims. We find continued confusion in this area, which can lead agencies to accept poorly articulated claims. This in turn has an impact on the quality of the ensuing investigation.
Additionally, harassment complaints are very time-consuming to investigate, and frequently involve multiple amendments as new incidents arise. In our view, the high volume of poorly articulated, non-sexual harassment complaints impacts directly on an agency's ability to control the timeliness, quality, and cost of investigations.
Good training and precise knowledge is required to properly frame such complaints. Time spent on training staff and writing precise letters of acceptance is competing with both other workload issues and the ticking of the 180-day clock. We believe that with the application of a uniform standard on what complaints state a claim, diminishing investigative resources can be spent on complaints which do in fact state a claim of illegal discrimination.
We also believe that improved understanding of claims would result in an increase in equitable and expeditious dismissal of claims. The Commission has properly required .. has properly provided the means for such dismissals in the 1614 regulations. However, agencies must truly understand how to use these tools and must know they can depend upon the Commission to train them in such usage and to support them when they properly perform these functions. It is in the interest of complainants as well as the Commission and the agencies that scarce resources be directed to viable claims.
The Commission's guidance to federal sector EEO professionals, including contractors, is welcome and respected. Setting and clarifying standards, sponsoring best practice forums, and publishing Commission positions on key substantive issues, such as non-sexual hostile environment claims, helps increase the quality and consistency of investigations.
We appreciate the opportunity to share some of our ideas and concerns, and thank you for inviting us.
CHAIR EARP: Thank you.
MS. GONZALEZ: Good afternoon. My name is Donna Gonzalez, and I'm the Senior Vice President and co-owner of JDG Associates. As a consulting firm specializing in civil rights and equal employment opportunity, we have conducted thousands of investigations on behalf of more than 40 federal agencies over the last 10 years.
We are committed to providing quality EEO services and recognize that many factors affect the quality of an investigation. Our goal today is to identify some of the barriers that we have encountered and to provide recommendations or suggestions to resolve some of these issues.
A quality investigation begins with a quality counselor's report. And since investigators rely on this report, delays are created whenever a report is not prepared or it lacks critical information. We recommend that at a minimum a partial counselor's report be .. always be provided, even if ADR is elected.
This report should include the complainant and management contact information, a synopsis of the allegation, and any other collected information which might be useful to the investigator.
Improper framing of the issues impacts the acceptance letter, which dictates the scope of the investigation. We recommend the initial and refresher counselor's courses focus more closely on framing the issues through additional practice exercises.
We also recommend that those individuals within the agencies responsible for writing the acceptance letters take a refresher course on the subject at least every other year to stay current with the current events.
Missing or incomplete documentation results in a poor quality report. It often takes from two weeks to several months to receive requested documents. We recommend that the EEO office and the HR offices work more closely together to ensure that document requests are timely processed. This could be .. they could use a variety of innovative ideas, such as notifying the HR office that a complaint has been accepted and that document requests will be forthcoming.
We suggest that an alternate point of contact always be designated in advance in the event that the primary point of contact is not available. We also suggest that all the managers within an agency be trained in the importance of the EEO process, and the importance of responding promptly.
We recommend that agencies implement a standard procedure on how many times an investigator should make a concerted effort to obtain documentations, and how long to wait for those files.
Whether an investigation is conducted by an individual or by a firm, a quality control plan must be in place. We suggest a review of the complete report of investigation prior to its submission to the agency to ensure it's sufficient and that all elements have been addressed. This review should be conducted by an individual separate from the investigator with strong investigative, analytical, and editorial skills, perhaps an experienced FAD writer.
The appearance of the final report of investigation may differ from one agency to the next as well as from one contractor to the next. We recommend a task force develop a standardized report of investigation format for ease of review on the part of the agency, the FAD writers, and the Administrative Judges.
We recommend this task force consider the following. And, again, it's mostly in compliance with the MD-110. To separate exhibits and sub-exhibits by a tab, not a sheet of paper; to stamp and number the entire report with the exhibit number, the page number, and the total number of pages within the exhibit; to develop a uniform requirement on redacting sensitive information; and to require an electronic PDF copy of the ROI on a CD.
Many of the aspects that affect the quality of an investigation can be corrected through training and experience. Investigator experience is critical in developing a thorough report, yet many newer investigators are unable to identify which discrimination theory should be applied or have inadequate interviewing or communication skills.
We recommend the EEOC and the agencies revise new investigator criteria to include more practical hands-on experience. For example, pair a newer investigator with a more experienced investigator during their first year or through a completion of their first 20 cases or so. A database of willing mentors could be maintained by those who administer the 32-hour course.
We suggest the MD-110 be updated to better define the content of the eight-hour refresher course. For example, require interviewing and communication skills, report writing, and special topics as well as the case law update. It should also be a forum for sharing ideas on how to be more efficient or to strategize about issues that arise during an investigation.
We found that the content of some of the EEOC's TAPS courses, while useful, is not always relevant to include federal EEO investigator skills. We recommend the EEOC revise its agenda for those courses which provide credit to the refresher or hold a separate course specifically for the federal EEO investigator.
In our experience, agencies that promote open communication with the investigators and their contractors are more successful in receiving a consistent quality investigation, because they are more willing to share their expectations in the agency culture. We strongly encourage agencies to form a more collaborative relationship with their contractors.
JDG looks forward to working with the EEOC and the agencies in improving the quality of federal EEO investigators and appreciates the opportunity to share our recommendations.
CHAIR EARP: Thank you.
MR. CULBERTSON: Okay. Thank you, Madam Chair. Good afternoon. I was going to say good morning, but I think it is now afternoon.
Good afternoon. My name is Andrew Culbertson, and I'm a Supervisory AJ in the Washington Field Office. I'd like to thank the Commission for inviting me to speak today. The Commission has my statement, and I just thought I would touch on some of the certain points that I made in the statement.
I've been with the Commission for about 14 years, the first eight as an attorney with the Office of Federal Operations, and the past six as an Administrative Judge. During that period Iíve reviewed upwards of .. and I was trying to come up with a number, but something like 1,500 reports of investigation during that period, and I've probably seen just about every method that can be employed when investing .. excuse me, investigating an EEO complaint.
Let me say that as an AJ the only evidence we have when we're assigned a case .. well, the only evidence that exists at that point is that which is contained in the report of investigation. The better the investigation, the better the AJ's understanding of the case. And an effective investigation is invaluable as it provides the AJ with the information necessary to determine best how the case should be processed.
My criticisms of the investigative process generally tend to be directed towards a small handful of agencies that I believe have perpetually demonstrated a lack of interest in conducting thorough investigations. But that said, I think there are at least three areas where across-the-board improvement is warranted. Although I don't .. I certainly don't speak for all Administrative Judges, I believe a number of my concerns are shared by many of my colleagues.
The first area I'd like to address is the manner in which testimony is obtained from witnesses. The MD-110 allows for a variety of approaches, and we certainly see a variety. It can be as formal as a fact-finding conference with live testimony or as informal as interrogatories that are mailed to a witness.
My view is that taking a statement from a witness when possible should be an interactive process. Meeting with a witness in person allows the investigator to not only ask contemporaneous follow-up questions but to observe the witness' demeanor, which may also result in certain follow-up questions.
Although the MD-110 does allow for approaches that are not interactive, I would .. at the very least I would encourage investigators who are going to use these sort of inner or .. I'm sorry, not interactive approaches such as mailing interrogatories, to at least issue follow-up questions when there is ambiguity in the initial responses.
My second concern, and perhaps my biggest, is with respect to investigations where too much is expected of the complainant. The complainant is there certainly to explain why he believes he has been discriminated against. He should not be expected, however, to prove his case without any assistance.
One area where this is problematic is with respect to comparative employees in disparate treatment cases. Too often we see situations where if the individual is unable to identify such an individual as a comparator that's the end of the inquiry and the investigator never conducts any further inquiry. My view, and I believe the MD-110 in fact, says that the investigator should be developing a record on that issue.
Another example involves disability claims, and too often the burden to produce relevant information is placed squarely on the complainant in these cases. Pro se complainants typically do not know what medical information is relevant, and may not appreciate that whether they are disabled under the law is contingent on the extent to which their limitations .. I'm sorry, their impairment limits them. But it's really not their obligation to understand that. It's the investigator's obligation to make them aware of that. A good investigator will not merely ask the complainant for relevant medical documentation and how his impairment limits him, she will explain to the complainant what the term "major life activity" means and attempt to ascertain what activity is limited and the extent of that limitation.
The final area I wanted to touch on concerns the documentation investigators opt to place in reports of investigation. My view is that the investigator should err on the side of inclusion, because unless a document is in the record, the AJ, or OFO for that matter, isn't going to be able to consider it. The cases where this is the most problematic I think are non-selections.
There's a vast amount of documentation that can be generated with respect to a federal non .. or a federal selection process. At the very least, I think the documentation in the file should include the applications of the complainant and the individual selected, ideally applications of other applicants as well, as well as things such as interview notes and rating and ranking sheets.
Too often I've seen occasions where things such as interview notes, rating and ranking sheets, did not get placed into the report of investigation, and as a result are ultimately destroyed. Sometimes they are destroyed prior to the investigation even occurring, but I .. that's a somewhat separate issue, I'm afraid.
I think Mr. Hadley has left, but it seems to me that perhaps we were channeling each other before this .. before this meeting.
Like Mr. Hadley, I note that MD-110 provides fairly general guidelines with respect to investigations. What I would propose in the short term .. and I'm aware that this is a somewhat modest proposal, but would be an appendix to MD-110 similar to the two appendices pertaining to EEO counselors.
The appendix would set forth guidelines addressing the documentation that should typically be sought, along with questions that should be asked when investigating some of the more common types of complaints. For example, with respect to a reasonable accommodation claim, the guidance could set forth the types of questions the complainant should be asked to ascertain whether he is disabled and what the investigator should do to determine what steps, if any, were taken to accommodate the individual.
With respect to cases involving non-selections, the guidance might contain a list of the documentation the investigator should seek as well as the types of questions the official responsible for the non-selection should be asked. Many investigators do not require guidance of this nature, and I'm also reluctant, given the variety of approaches that exist, to investigating a complaint to endorse mandatory guidelines.
What I believe is important is to provide standards that will give investigators more specific guidance concerning what adjudicators at the Commission are seeking when they review an investigative file.
This issue is very important to AJs, and I'm glad to have been afforded the opportunity to share my thoughts with you. Thank you for inviting me, and I hope that AJs will have a continued involvement in this discussion of how to improve the federal sector EEO process.
CHAIR EARP: Thank you, Mr. Culbertson. I think you have certainly touched on something that has become clear over the years to those of us who have practiced federal employment law, and that is the analysis of allegations of discrimination have become increasingly complex. With disability law and the framework for analyzing disability claims being right up there at the top, the most complicated with legal terms and terms of art, that whether or not you're an attorney, if you are in this process you need to understand it to serve employees who come forward.
So with that, I am going to turn it to Commissioner Silverman for questions, comments.
COMMISSIONER SILVERMAN: I just found out I have to step out, but I wanted to stay to hear this panel. And I'm so glad that I did, because I think you all came with obviously a lot of thought put into this. And I notice that you all, I mean, had all these really constructive ideas, and many of them you have obviously given this all a lot of thought.
So I'm going to run out and do what I have to do and try to make it back to ask questions. I just wanted to thank you.
CHAIR EARP: Commissioner Ishimaru?
COMMISSIONER ISHIMARU: Thank you, Madam Chair. I'd like to sort of, for the contractors people .. for both of you who have been vouched for by other panel members .. does the 32-hour requirement that we place on investigator .. on new investigator training, does that reflect the reality that you face when you hire new investigators? Are you able to train your people within a four-day period in everything that they need to know? How much more extensive do you find your training to be?
MS. LYTLE: Do you want to start?
MS. GONZALEZ: Okay. As I said, we feel that the 32-hour course is totally insufficient. Personally, in my company, if we have someone who has completed that, we always pair them with a very experienced investigator during their first year, sometimes longer. And we recognize that there's an individual .. some individuals come into this with prior experience, such as law enforcement, or attorneys quite often come in with better skills and better knowledge, and so they may be able to move through the process a little quicker.
But as .. as we've generally found out, the 32-hour course is totally insufficient and, frankly, we no longer take new investigators with only 32 hours at our agency or at my company. We strongly encourage them to go elsewhere for more additional experience.
MS. LYTLE: We also look for much more than the 32-hour experience. We look for federal EEO experience, investigative experience, knowledge of the federal personnel system, when adding to our contractor list. We also have a variety of resources available to our contractors.
It was mentioned, you know, that perhaps an appendix to MD-110 be created that sets forth the typical fears of discrimination and elements of the standards of proof, as well as suggested questions and documents. We have that all online in an investigator manual, which is password protected for our contractors to use. Of course they need to tailor their investigation plans to a specific .. to the complaint they're investigating. But it's a very valuable resource for them.
We also, with every contractor .. every contractor is paired with a DSZ case manager who reviews the investigation plan prior to commencement of the investigation, troubleshoots during the investigation, and reviews the report of investigation prior to submission of the agency. So these are how we internally control the quality of investigation and try to ensure a consistent quality product before it's submitted to the agency.
COMMISSIONER ISHIMARU: And I would assume for the eight-hour refresher course or the refresher training that's required every year that .. that both of your companies could go far beyond that in providing ongoing training to your people.
MS. LYTLE: Yes. But we also each provide the eight-hour refresher course to our investigators and counselors, and we do tailor the course to the issues or the problems, you know, that we believe are most key to improving the quality of the investigation. For instance, last year one of the workshops focused in on disability and the elements of proof.
COMMISSIONER ISHIMARU: Do you use the same investigators for the same agency, or do you .. I'm curious how this works in practice, or does it really depend on what ..
MS. LYTLE: It depends.
COMMISSIONER ISHIMARU: .. what the needs of the case ..
MS. LYTLE: It depends on the availability of the contractor and the particular type of expertise that might be needed on that complaint.
COMMISSIONER ISHIMARU: Good. Anything else to add, Ms. Gonzalez?
MS. GONZALEZ: No, we pretty much run the companies very similar .. we've encountered each other many times over the previous years. The only thing I said, when we deal with investigators, we probably share several of the same contractor investigators among our companies. When a case comes in, our case manager looks at the case, determines the complexity of the case; we match that up with the availability with those .. and our senior reviewer also identifies the skill level of our investigators, and we rank them.
So when a case comes in, if it's deemed more complex, we only deal with those experienced investigators who have proven they know how to handle that particular case.
We also take into consideration whether there may be a perceived conflict of interest, whether that investigator has worked for a particular agency in the past, and we may not want to use that one because they may know some of the individuals in that company.
COMMISSIONER ISHIMARU: I see. And it sounds like both of your business models are such that you hire contract investigators to work for you. You don't have them as employees, but that you .. you find contractors who can work for you to do these specific jobs that you have.
MS. LYTLE: Correct. And they are contracted with on a case-by-case basis, even though some maybe have worked for us and with us for 25 years.
MS. GONZALEZ: And we have a blend. We have some investigators who are actually employees, and then we use contract investigators as well.
COMMISSIONER ISHIMARU: Could I ask Mr. Culbertson one question, Madam Chair?
CHAIR EARP: One question.
COMMISSIONER ISHIMARU: Thank you very much.
Do you know, Mr. Culbertson, whether the Administrative Judges have ever analyzed the quality of agency investigations or done anything formal on this? And if they have not, would that be a useful thing for the Commission to get feedback on or from AJs directly?
MR. CULBERTSON: That's a very good question. I am aware .. very generally aware of a pilot project that occurred I believe it was last year, between 2005 and 2006, where two of the district offices .. and forgive me, they may not be district offices at this point, but where AJs did a review .. a sufficiency of investigation review, I believe it was when they closed out a case they would review or they would rate the ROI that was used or that related to that case.
I don't really know what the specific results were with respect to that. I think the second part of your question was: did I think it would be a good idea, or do I think it would be a good idea? I think it would be a very good idea to the extent that, again, I .. I'm one person. I can certainly share my views. But to get the views of a number of AJs I think would be very beneficial, since we see ROIs every day.
COMMISSIONER ISHIMARU: Thank you very much. I thank the panel. I thank you, Madam Chair.
CHAIR EARP: Commissioner Griffin?
COMMISSIONER GRIFFIN: I just wanted to ask, you know, anyone that wants to answer, when we talk about the training and you certainly had some concrete suggestions. Do you think it would be appropriate if the EEOC established some sort of a program where there was a certificate or, some measurement of success at the end of it, for investigators? Is that something that the community and all the stakeholders would think would be a good thing?
MS. GONZALEZ: It's my understanding they already get a certificate at the completion of the 32-hour course. We don't feel that that one is acceptable. But if you establish new standards ..
COMMISSIONER GRIFFIN: But that is what .. I'm talking about something new, yes.
MS. GONZALEZ: Yes. Establish new standards, and then they get a certificate at the end of that time saying they have successfully completed all that. It would be very helpful.
COMMISSIONER GRIFFIN: I should be clearer, though. I think what I'm saying, because right now what the regulations allow is that, you know, you could get it from the EEOC, the 32 hours, or an agency could decide. They sit around and talk about I guess investigations for 32 hours, if that's what they wanted to do, and that would be considered training.
I'm talking about something, you know, like this would be .. this would be it. You have to go through this in order to actually do it. Are people interested in something like that? Some people in the audience are nodding.
MR. CULBERTSON: This is a little bit outside of my bailiwick, but what .. because obviously I'm not an investigator, I don't ..
COMMISSIONER GRIFFIN: I can see their reports.
MR. CULBERTSON: .. run investigator or an investigation service. But I would say that I think something like that could be very beneficial to the extent that obviously you would be teaching certain techniques and discussing certain theories of discrimination, and to the extent that you could .. like I was saying, and, again, I'm not .. what I suggested .. this isn't a plug for that, but to the extent that you could set forth the different types of cases and say, "Okay. In this sort of case, this is typically what we're looking at, what you should be looking at," I think Mr. Hadley made a good point when he said there are these various theories of discrimination, and too often there's too much intermingling or misunderstanding of exactly what theory is at play.
COMMISSIONER GRIFFIN: Right. Elizabeth, are you still thinking about this?
MS. LYTLE: Yes, I have mixed feelings about it.
COMMISSIONER GRIFFIN: All right.
MS. LYTLE: You know, as the saying goes, there's lawyers without degrees and degrees without lawyers. And I guess I feel the same way about an EEO certification for investigators.
COMMISSIONER GRIFFIN: Okay. Well, I think .. I mean, I'm hearing everyone say we should develop .. "we," the EEOC, should develop a standard, we should do this, we should do that, and I'm sitting here thinking, well, if we're going to do it, why don't we teach it and hold the people accountable and say, we too agree that the investigations aren't that good right now, especially in certain agencies. And, if we could help them be better and be a part of that process, maybe that's something we should do.
MS. LYTLE: I mean, I think the contractors should be held accountable for the quality of the reports that they submit to the agency, and the agency EEO officers, as Delia Johnson mentioned, are accountable .. are responsible for ensuring that happens.
COMMISSIONER GRIFFIN: Thank you.
CHAIR EARP: Commissioner Silverman?
COMMISSIONER SILVERMAN: As Iím sitting here, I was thinking, you know, DSZ and JDG are both, you know, very well respected firms in this area. You know, you represent the best of the outside contractors, and yet I think what I heard from both of you .. that even in trying to do a quality investigation that some .. that you do confront interference, lack of cooperation, failure to hand over documents. And I imagine you have more hand than most contractors of trying to get the agencies to comply. But I was curious, and this may go back to the conflict of interest, but it also goes to quality. What happens when you do try to go to the agency folks and say, "Look, we really need this to get done," and you push them? Is it your experience that in the .. in .. the next time around maybe you're not selected or they don't pick you anymore? I mean, does that result in your not being chosen? How does that play out in the real world?
MS. LYTLE: No, I don't think so. I mean, I think the EEO .. that the EEO officers are as interested in a complete quality investigation as we are. They may not have the authority or support that they need to ensure that that happens.
COMMISSIONER SILVERMAN: Right.
MS. LYTLE: I mean, it's not infrequent that a witness will refuse to cooperate, not respond to phone calls, not respond to letters, and our EEO contact may say, "There's nothing I can do. Document the record."
COMMISSIONER SILVERMAN: Are there actual agencies that you won't work with anymore because they're just not providing enough information or .. not naming them, I'm just asking you.
MS. LYTLE: I don't think that has happened with us.
COMMISSIONER SILVERMAN: But it seems like what we're talking about here is like a lack of hand, that, you know, you don't have the hand to strong-arm the agency or .. and then the EEO counselors can only do so much, and we have that same problem.
And I'm just sitting here and thinking about how we balance that without creating two completely adjudicative forums .. you know, one compelling the investigation, and then the other one after that, and, of course, there could be court after that. And it's so difficult, but it's clearly a problem.
MS. LYTLE: Right, and that's true in the whole question .. the conflict of interest question, too, with General Counsel or legal interference in the investigative process ..
COMMISSIONER SILVERMAN: Right.
MS. LYTLE: .. that often an EEO office does not have the authority to challenge that.
COMMISSIONER SILVERMAN: Right.
MS. LYTLE: So, again, our only recourse is to document the record.
MS. GONZALEZ: And itís been our experience that those agencies where the EEO office does have the authority to either compel cooperation or to some agencies even get up and go get the documents themselves and bring .. deliver them to the investigator. Those agencies where the EEO officer has the authority is much more successful in getting the materials that the investigator needs to conduct a fair, impartial investigation.
COMMISSIONER SILVERMAN: I think that the suggestion or the comment that came out of the question, Mr. Culbertson, about our AJ sort of rating the investigation files that they do see in looking at that is a definitely good place to start here, because it is more impartial. And, if we can see repetition with an agency, and you've said you know who they are, that are not doing the best job and aren't being forthcoming, then at least, you know, we can do something about it, even if it's just publicly naming names, but it's at least a start. I don't know if that's too controversial, but it seems like we need to get these to be better and that's just one way that we might be able to do it.
Thank you. Thank you, all.
CHAIR EARP: Thank you very much to this panel, to the audience for your patience, for your thoughtfulness.
Clearly, today's meeting shows that it's a very complicated process. I think it was Delia Johnson who encouraged us not to look just at investigations without realizing that the investigations are connected to a counseling report that's connected to something else.
So with that, let me share with you, so that it doesn't end up being a meeting that becomes empty of results.
We want to go on record to confirm that OFO is empowered to take new steps and to continue taking the steps it is taking regarding the use of EEOC's enforcement powers, the use of audits and onsite visits, to continue to build on its relationship management project with agencies, and to continue working with GSA to find out what the secrets are to speed up the procurement process where investigations are contracted out.
Additionally, before we adjourn I want to share the next step. I've asked Commissioner Griffin to work with OFO in establishing workgroups to address the matters that were raised in today's meeting. These workgroups are to analyze the strengths and the weaknesses of the current process, and to come up with working solutions to continue to improve the timeliness and the quality of federal sector investigations.
This is going to be a very thoughtful, deliberative, but also time-consuming process. As this meeting has shown us, there are a number of points that are power points that need to be persuaded to move, as well as a number of points where there are barriers that we have to understand exactly what the barrier is and what is the implication for the entire system to tweak just a part of it.
What we want to commit to you today, though, is to keep this on the radar and to keep pushing forward.
Any final comments from my fellow Commissioners?
COMMISSIONER ISHIMARU: I think it's an excellent start, Madam Chair. I think you've done very well at your first meeting chairing.
CHAIR EARP: Thank you.
Thank you. There being no further business, do I hear a motion to adjourn?
COMMISSIONER SILVERMAN: So moved.
CHAIR EARP: Do I hear a second?
COMMISSIONER GRIFFIN: Second.
CHAIR EARP: All in favor say aye.
(Chorus of ayes.)
The ayes have it. The meeting is adjourned. Thank you.
(Whereupon, the above-entitled meeting was adjourned at 12:45 p.m.)
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