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Meeting of October 23, 2008 – Issues Facing Hispanics in the Federal Workplace

Statement of Beatrice Pacheco, Associate Director, Equal Employment Opportunity Programs, Departmental Office of Civil Rights, Office of the Secretary, U.S. Department of Transportation

Good Morning, Madame Chair, Commissioner Ishimaru, Commissioner Griffin, and Commissioner Barker. I am honored to have been invited to speak before you today concerning the realities and barriers faced by Hispanics in the Federal sector. I will be specifically addressing the barriers I have encountered as a GS-15 attempting to break into the Senior Executive Service in the Federal Government. Hispanic women have the lowest percentage of all minority groups in the SES. With over twenty years in the Federal Government, and being active in the Federal Hispanic community, I believe my experience s have also been shared by many other Hispanics. I will also state at this time that the following is my view only and does not represent the views of the Department of Transportation, which is my current employer.

I received my juris doctorate from the University of Colorado and began my federal employment as a GS-9 staff attorney with the Department of Veterans Affairs. During my 15 year tenure there, I achieved expertise in Freedom of Information, Privacy Act, appropriations, patent and EEO law. Although the VA has a couple of hundred attorneys nationwide, I was one of two Hispanic attorneys, and the only one at headquarters, when I began my employment. That number only went up by one during my tenure there, which spanned over 15 years. It soon became evident that I would not be promoted past the GS -14 level there. Individuals were promoted to GS-15 supervisory attorney positions, or Deputy Assistant General Counsel positions, not based on merit or leadership potential, but on senority. And those who had been there the longest were, for the most part, White males.

I received an opportunity to obtain supervisory experience by lateraling over as a GS-14 senior attorney advisor in an EEO Office at a smaller agency. After a few years there, I applied and was promoted to my current position as Associate Director of EEO Programs for the US Department of Transportation.

Since then, I have applied for various SES positions, at my former agencies as well as in other agencies. The vacancies I have applied for are in the EEO and legal fields. I have received very few interviews. In some instances I was not given an interview even though I made the best qualified list. In one case I found out I had made the best qualified list only because a personnel specialist called to ask if I had a more recent appraisal than the one submitted. At that time, I took the liberty of asking if I had been referred to the selecting official, and was told I had been as I was among the top three candidates. I was not interviewed, and found out “through the grapevine” that a selection had been made. I knew the individual who was selected, and what her qualifications were, and did not believe they equaled mine. Even though I had not received formal notice from the agency (in some cases, you simply do not hear back), I initiated EEO counseling, hoping that the EEO counselor would at least have a dialog with the selecting official to find out why I was not selected or even interviewed. Instead the selecting official refused to meet with the EEO counselor or provide any information to her. I was issued a notice of final interview. I had no choice but to file a formal complaint. The formal complaint process, because it was under the control of the agency, left much to be desired. Witnesses I had asked be interviewed were not, and the information I asked be obtained, such as the number of Hispanics in the agency and in that unit, and the number in upper level positions, was not obtained. Instead witnesses that did not have to be interviewed were interviewed. For example, the members of the executive resources panel. These good people, who, it turned out, rated me number one, were informed I had filed an EEO complaint against them, and were asked to describe their rating process. Of course the complaint was not about the ratings of the executive review panel. How do you think those individuals are going to feel about my application next time around? I know agency personnel are not supposed to retaliate, but in reality, there is no way for anyone to prevent them from doing so. I won’t go into further detail concerning this particular EEO complaint, other than to say it was simply a disaster. I think it is a shame that this is the only recourse available. What I heard through the grapevine, again, was that the individual was preselected, and that I should never have left the agency. Of course, the reason I left was because I did not see promotion potential there. I guess I won’t see it there in the future either. To close out this story, let me just say that the individual hired had a hard time getting approved by OPM for the SES position. I understand “through the grapevine” that the ECQs were rejected twice, and that the agency had to work hard to get them approved.

Clearly, preselection is a barrier to equal opportunity. Some will argue that preselection is not necessarily discrimination. However, in many cases, it can be, such as in the case I just discussed. The person selected was not Hispanic. Let me give you another example. I applied and was found best qualified for a senior level position, the equivalent of an SES at an agency that does not use the same rating system. I interviewed with a panel of three, two of them high ranking individuals in the agency, and the third the former Director whose vacancy was now being filled. One of the three panelists was the ultimate selecting official, that is, the person who would be making the hiring decision. That individual was clearly going through the motions during the interview; he could not have been less interested in what I had to say. The person who was selected was of the same background (race) as the hiring official. The hiring official retired three months later.

The EEO investigator compared my qualifications vis a vis the selectee’s, and found mine were superior. The comparison was astounding. I could not believe an agency would hire someone like that into a high level position. Of course, the EEO Investigator found discrimination had occurred. Because this agency is not one that is subject to EEO regulations, I was told by its Office of General Counsel that I could not have a copy of the investigation, and that they did not wish to engage in mediation. Because it is not an agency covered by EEO regulations, I had no right to a hearing or appeal to the EEOC. I was told I could file in court if I was dissatisfied. I looked into hiring an attorney. A very prominent attorney specializing in discrimination law wanted to take the case, but he did not take contingency cases and billed at $425 per hour. After the consultation, I was broke. So I had my finding of discrimination, and was told what I could do with it.

Discrimination is occurring, but for me, and for many others that I have talked to, proving it is simply too expensive and too stressful. I am a single mother with a child in college, and could not take the risk. Not only does challenging discrimination bring a huge financial price tag, it can be emotionally devastating as well. Who of us in full time positions, with family obligations, can handle the added stress? I opted to keep my sanity, and bowed out.

A huge barrier to equal opportunity in achieving the SES ranks is that agencies run unchecked. There is preselection going on, and there is discrimination occurring.

Review panels, in applying the criteria to qualifications, can also be highly subjective. They need not justify their ratings to anyone. In one instance, a panelist rated me the highest in all areas, while another panelist rated me the lowest in all areas. I have no idea why the disparity occurred. When these disparities occur, an agency should take notice.

An agency should also be required to justify its selection. The justification should not be a simple write up by the agency, but should be specific in terms of comparing educational levels (where relevant), supervisory experience, and the ECQs, for the top rated candidate(s) versus the selectee.

In addition to agencies conducting checks and balances, OPM should also do a better job of policing these selections. Reviewing the ECQs and returning them so that agencies may re-do them is simply not the avenue to ensuring that the best qualified people are being selected. I recommend that OPM be provided and independently review the applications of the top three candidates for a SES position. An independent review would begin to lend the necessary checks and balances to selections.

Stricter review standards must be implemented for SES level positions if we truly want those who have the potential to lead government and implement change to be placed in the positions necessary to do so.

I want to applaud those agencies that make obtaining information regarding the status of an application transparent, particularly at the SES level. I applied for a SES position at USDA, and came very close to making the best qualified list. The reason I know this is because the personnel specialist there sent me the information pertaining to how each of the three panel members rated me in five different areas. This gave me insight into what areas were being rated, and what I needed to focus on in the future, whether in my ECQs or in my resume.

The lack of transparency can be a barrier to equal opportunity. Another agency advised me to file a FOIA request if I wanted rating information in relation to a SES vacancy. I was also told it would be approximately six months before they answered the FOIA request as they were handled on a first come first serve basis and it was currently taking about six months. I want to recommend to all federal agencies that the process be made as transparent as possible. “Just in time” information is invaluable. The policies of an agency can also be an indicator of the work environment there. USDA’s response left me feeling good about the agency, and I would apply for other SES vacancies there.

Agencies also need to do a better job of ensuring equal opportunity for participation in leadership development courses, such as Federal Executive Institite (FEI). In many agencies, only those that have obtained SES status are sent to FEI, thus, they are sent after the fact and not before. Even when Hispanics participate in FEI, or other similar training programs, there is often only one or two Hispanics in the group. I have had this experience. We must ensure that Hispanics are provided the same training opportunities as everyone else.

I have also been fortunate in that I have had challenging assignments that provide me the opportunity to develop my problem solving skills and thereby enhance the experience that bolsters the ECQs. Not all employees are that fortunate. Detail assignments and assignments to special projects can be highly developmental, allow Hispanic employees to show their potential, and be more competitive for upper level positions.

The wave of retirements will bring vacancies in the SES ranks and an opportunity to enhance diversity within those ranks. Hispanics can bring diversity of thought and problem solving techniques that others cannot. It is important that we also relfect the communities that we, the Government, serve.

Thank you for the opportunity to testify and present my experience and thoughts on this important subject.

Bea Pacheco