The U.S. Equal Employment Opportunity Commission

Meeting of July 8, 2005, Washington D.C. on Field Repositioning

Statement of Stuart J. Ishimaru Opposing, Commissioner
U.S. Equal Employment Opportunity Commission

I am glad to be here today to discuss this plan. I am especially glad to be here today, rather than on May 16th as was originally planned. The outcry that the original one week turn-around created should not have been surprising. The original schedule was unfair to the public, stakeholders, and employees.

The criticisms and questions concerning this reorganization plan raised by stakeholders and employees are well taken. Although there have been some small changes, the proposed field repositioning plan remains seriously flawed and should not be approved. The business case justifying the details of the repositioning has not been made. From a cost-savings perspective, an efficiency perspective, an enforcement perspective, and even a process perspective, this proposal cannot be credibly justified. Change for the sake of change does not improve our ability to enforce anti-discrimination laws. It does not move us closer to our goals of improved efficiency and better customer service. It does not make us a model employer.

I. The Process We Use to Change this Agency Must Be Transparent.

Our political representatives, stakeholders, and employees should, rightfully, be proud that they forced this process to become more inclusive. The message should be clear and remembered. When it comes to major changes in the preeminent civil rights enforcement agency in the nation, those changes cannot and should not be done behind closed doors and announced as a fait accompli. The civil rights community will not stand for it.

I hope that my fellow Commissioners have learned from this process that public review of our decisions and plans is not something to hide from—indeed it is simply part and parcel of our jobs and allows us to come up with a better work product. The administration of this Commission should not be by decree, but rather with the support, ideas, and input of those with whom we work and serve.

For every major change, for every plan, we should expect to include stakeholders and a wide range of employees in the creation, implementation, and decisions. We should, as a matter of course, make the data that supports any changes publicly available – it should not take a plea from me. For this plan, we should have made available all of the information, as limited as it is, that was provided to Commissioners, including the changes to the plan that were made after the comments. We should not have played “hide the ball.”

Public input will only make our plans better. And this plan is better as a result of opening the process. The comments we received have forced boundary changes. The descriptions of the functions of various offices have changed so that there is much more flexibility and an understanding that the work should drive staffing, not the label of the office. The affected employees have had more of an opportunity to learn about their options. Some of our FEPA partners’ concerns regarding contract administration have been addressed.

Because the public part of this process only came about through the insistence of our stakeholders, representatives, and employees, rather than as part of the original plan, the public process was very limited and inadequate. If the civil rights community and our employees had been involved from the start and given the information and data they needed, we might have seen a very different plan, one that would have truly improved the agency. The current plan does not address basic issues within the agency and will not bring about improvements in our enforcement of these fundamental laws.

II. The Business Case for the Plan Has Not Been Made.

In 2004, Vice Chair Earp and Commissioner Miller chaired a taskforce on repositioning. That taskforce was ordered to select 10 or 11 offices to become “mega” offices from the current 23 district offices we have. The Chair has cited the criteria used in the report as a reason for the decisions in the current plan. However, this plan actually rejects the findings of that Repositioning Workgroup.

Page one of the Repositioning Workgroup Report states:

The representatives from the field on the Repositioning Work Group (Workgroup) do not believe that a business case has been made for reducing the current number of district offices, and, therefore, do not recommend that the current number of district offices be reduced.

We listened to presentations by the Chair, the Vice Chair, Commissioners, and Chief Financial Officer and received input from our peers. We have not, however, been provided with an explanation of the current “problem” and how reducing the current number of district offices resolves the “problem.” Any discussion on restructuring or repositioning must be premised upon ensuring that the Commission can be more effective in carrying out its mission of enforcing Title VII, ADEA, ADA, and EPA. Our collective experience demonstrates that presence in a community makes a difference in the Commission’s ability to effectively enforce these laws. Commitment to that presence as evidenced by staff resources and senior management is essential to effectively carry out the work of the Commission. The current field structure has worked well. The Commission’s success since the implementation of PCHP and the increased emphasis on enforcement and legal staff working together demonstrates that the current field structure has been and continues to be effective.

Budgetary Considerations

We will not dispute that the Commission faces tough times financially or that the expectation is that the budget for the Commission will remain flat as costs increase. However, the information has not been provided to establish that such drastic measures as reducing the number of current district offices is necessary. Nor was the budget information presented to show how much money, if any, could be saved from repositioning into 10 or 11 “mega” offices. If budgetary considerations drive the need for repositioning in the field, the Commission should know the amount of savings. If money is saved from this process, the Commission should know how it will be spent. Furthermore, other cost savings measures should be considered, such as cost reductions at Headquarters, before reducing the current number of district offices. As the NAPA study recognized, the mission-critical work is being done in the field. If reducing the current number of district offices is essential for budgetary reasons it should involve the fewest offices and the least disruption of the current structure possible. Without more information and further discussion, the budgetary considerations cannot make the business case for reducing the current number of district offices.

Management Considerations

It has also been suggested that there are management considerations for reducing the current number of district offices. It is our collective belief that management problems or issues should be dealt with as management problems. We should not re-invent a structure because Headquarters has issues with management in the field. The Commission should hold the senior managers in the field accountable and responsible for the work of the Commission. If there is a particular management problem, it should be addressed on an individual level. We have not heard of any management considerations that provide a business case for reducing the current number of district offices.

What was true in 2004 is true today. The business case for this plan has simply not been made.

We received numerous letters and e-mails from Senators, Congress members, employees, and other stakeholders telling us that they had serious concerns about the content of the proposal and could not understand the rationale for the decisions that had been made. The proposal was of so much concern that 201 Members of Congress voted to include language on our appropriations bill that would have restricted us from “reduc[ing] the number of full-time officers or employees serving as supervisors, management officials, mediators, examiners, investigators, or attorneys” as part of repositioning. In fact, we just received a letter dated July 6, 2005 signed by 30 Senators opposing the proposal because they believe it will undermine the agency’s ability to serve the public.

A. The Financial Case Has Not Been Made.

First, the plan provides what can only be described as de minimus savings. According to the documents we received, it is anticipated that the plan will save $4.8 million over 8 years. There were reports that the savings were closer to $8 million—but that takes into account a reduction in rent costs that would occur regardless of restructuring. $4.8 million is .2% of our budget for 8 years (assuming $330 million/year for eight years). $4.8 million dollars is less than the estimated cost of the two-year National Contact Center Pilot Program. $600,000 –which is $4.8 million broken down over 8 years -- is less than the amount the Chair wanted to carve out of the FEPA contracts for her own discretionary fund. When I questioned that fund, the money was returned to the FEPA contract. This shows that $600,000 is the amount of money that can appear and disappear in a budget around here without an explanation.

But, in reality, the plan will save us far less than even $600,000 a year. The accounting we received did not include the costs of salary increases for 2 SES level managers who, it is expected, will be in charge of outreach and ADR, or increased travel for Regional Attorneys, District Directors, Administrative Judges, ADR Coordinators, Program Analysts, and State and Local Coordinators. A conservative estimate of these costs would be at least $200,000 a year. It also did not include training for employees who will be placed in new positions or the cost of creating and carrying out the repositioning plan.

Obviously, given the structure of this agency, the place to look for financial and managerial savings would be Headquarters. Although we have been promised a Headquarters’ restructuring plan, any such proposal has yet to be shared with the Commissioners, the public, or employees. Field repositioning would make more sense and probably receive a better reception had it been accompanied by plan that looked to Headquarters for financial and personnel savings first.

B. The Case for Repositioning Based on Charge Intake Numbers Has Not Been Made.

I have been informed that the primary considerations for determining the designation of office levels was based on charge intake and geographic proximity. Reliance on charge intake data is the wrong measure on which to base a restructuring proposal.

Litigation, mediation, outreach, federal sector work, the resolutions of the charges, the office’s ability to manage all of the charges it receives, the quality of the work once the charge is accepted, common industries, existing relationships with FEPAs or community groups, individual performance of current staff—none of these criteria mattered. So, under this plan, we have offices with excellent litigation programs, such as Milwaukee, Baltimore, and Detroit being downgraded (in Milwaukee’s case to an area office, which traditionally does not have a substantive legal presence). Meanwhile, we have offices that have not brought more than a handful of cases maintaining the status of a District Office.

The agency’s reliance solely on the number of charges filed flies in the face of both the NAPA report and common sense. The NAPA report stressed that the agency must look at its human capital and reward its high performing employees. Instead, we are downgrading high performing employees and offices based primarily on one number. In fact, an e-mail I received from a Regional Attorney stated that Regional Attorneys have been assured that the downgrade was “...based solely on geographic location...” and not on “...managerial performance or the effectiveness of any particular litigation program.” In other words, perform well at this agency, and you may lose your job. Perform poorly, and you may not.

The fact that the only number that matters is how many charges walk in the door also sets up a perverse system of incentives for our employees. We are sending the message that from now on, any office that does not want to be downsized or wants to become bigger should take charges from anyone, even if they do not fit the requirements of the statutes we enforce, and dismiss them the next day to increase their apparent workload. We are not sending a message that offices and employees will be rewarded for promptly and courteously responding to a potential charge, effectively counseling charging parties, or conducting thorough investigations. What we care about is the number of charges. These are the wrong messages to be sending to our employees and our stakeholders.

C. The Case for Changing Geographic Jurisdictions Has Not Been Made.

Third, the business case for this plan has not been made because the new geographic jurisdictions do not save money, increase workloads without increasing staff, damage strong pre-existing relationships with the communities we are charged to serve, and may cause the decline of currently well functioning offices. Some examples of this are Maryland, Ohio, New Mexico, and Oklahoma.

i. Maryland

As a District Office, Baltimore handled approximately 1,330 charges per year and had one of the highest investigator/charge ratios. It also handled one of the higher rates of federal sector cases. It filed 32 cases in Federal court last year, 7 of which alleged discrimination based on race. By the numbers and by the quality of the work, it is a successful office.

Under the repositioning plan, Baltimore will become a field office so it will not have a Regional Attorney, and it will not have independent litigation authority.

Under the new plan, Baltimore will lose responsibility for Virginia and for five counties in Maryland. Virginia will be transferred to Charlotte and its two area offices will be downgraded to local offices. The five counties in Maryland will be assigned to the Washington D.C. Field Office. Originally, Baltimore was slated to receive no new geographic area—which would have lead to a steep decline in its charge intake and ability to find good charges for litigation. After this proposal was met with resistance, a strange compromise was struck--the Baltimore office was given two counties in Delaware and five counties in Pennsylvania.

While this compromise may help Baltimore’s charge number, which, of course, is all that this plan considers, it does nothing to help the people who live in the 5 counties of Maryland now covered by the Washington D.C. Field Office. Millions of people in the five Maryland counties affected will be moved to the jurisdiction of the Washington, D.C. Field Office—an office with one attorney. In fact, in 2004, the Washington D.C. Field Office transferred over five hundred private charges out of its office.

For the federal sector, the proposed changes to Baltimore also make no sense. Currently, Baltimore has one of the higher federal sector workloads and an experienced group of Administrative Judges. Despite having a high workload, the office takes cases from other offices that are falling behind. All of the federal sector work from those five counties, where many federal employees live, will be moved to the D.C. Field Office. Last year, according to the Office of Field Programs, the Washington Field Office sent over one hundred federal sector cases to San Antonio to be resolved; according to the Baltimore District Office, the Washington Field Office has sent Baltimore 100 cases in this fiscal year. Given these facts, one would think that in the repositioning Baltimore would get more work and D.C. less. But, under this plan, the D.C. Field Office is getting more jurisdiction with no more staff, and Baltimore will be downgraded and lose geographic jurisdiction.

The redrawing of Maryland will split the State Fair Employment Practices Agencies—something they have specifically asked us not to do. Many Baltimore District Office employees, including supervisors and administrative judges, as well as Senators and Members of Congress have asked us not to change the jurisdiction of the Baltimore office.

ii. Ohio

Another perplexing example is Ohio. Under the current system, Ohio is covered by the Cleveland District office and the Cincinnati Area office. The Cincinnati Area office covers 11 Ohio counties. Under the new plan, with no new staffing, the Cincinnati Area office will cover 30 counties in Ohio and 35 counties in Kentucky. The Detroit District office, which will also be downgraded and be given no new staff, will be given 15 counties in Ohio, in addition to retaining Michigan. The Cleveland Field office will report to Philadelphia with a fraction of the counties it originally had. The Cincinnati Area Office will report to Indianapolis. Ohio will be split in a north-south line—while the federal courts of the United States split it on an east-west line. So both district offices, Philadelphia and Indianapolis, will be filing cases in both districts in Ohio.

The lines become even less understandable when staffing is considered. The Cincinnati Area office, which under the plan will have almost three times as many counties in Ohio and 35 counties in Kentucky, has, according to data given to me on May 13, 2005, 6 investigators and 3 supervisory investigators. According to employees in Ohio, there are currently 5 investigators and one is scheduled to retire in the near future. The Cleveland Office, whose jurisdiction has shrunk dramatically, has 17 investigators and 5 supervisory investigators.

Again, the Ohio FEPA has asked us to reconsider this plan, as have many employees and Members of Congress.

iii. New Mexico and Oklahoma

Currently, we have an Area Office in Albuquerque that covers the state of New Mexico and reports to the Phoenix District Office and an Area Office in Oklahoma that reports to the Dallas District Office.

Under the new plan, the Oklahoma office will be switched to the jurisdiction of the St. Louis District office, and the Dallas office, through its El Paso Area Office, will have its jurisdiction increased to include part of southern New Mexico. These changes disrupt the excellent working relationship that Oklahoma has with Dallas and that Albuquerque has with the southern part of New Mexico. It results in attorneys from Dallas flying to Albuquerque for litigation because that is where the federal courts are located, even though we have attorneys in Albuquerque who will be litigating cases in the rest of the state. For federal sector charges, it results in Administrative Judges having to fly from St. Louis to Oklahoma for hearings when they used to drive from Dallas to Oklahoma.

The District Directors and Regional Attorneys of both the Phoenix and Dallas offices and the Area Director of the Oklahoma City Area office asked us to reconsider this plan. I was told that the suggestions of all of these employees and managers were ignored because removing Oklahoma from the St. Louis District Office would leave St. Louis with too few charges to remain a District Office. Again, the decisions for this plan are being driven solely by that one number.

iv. Effects of the New Boundary Lines

The most significant effect of the changes to the geographic jurisdictions will be shortfalls in staffing. For example, the Washington Field Office, the Cincinnati Area Office, and the El Paso Area Office will all require more staff to handle the influx of charges and federal sector complaints they will receive. This assumes, of course, that hiring is in our future, but there is no promise that it will be. There is nothing in this plan that commits the agency to making sure that the offices that are receiving more territory will be adequately staffed to cover that territory.

Over time, if further hiring is done, it will have to go to the offices that gained territory in this plan, which will limit the agency’s ability to hire employees in geographic areas that are experiencing population and employment growth. In the interim, charges will probably be transferred to offices that have capacity but are underutilized under the new boundaries, begging the question of the purpose of this repositioning at all.

It is of course, possible that this is just the first step in this process and that the offices whose geographic jurisdiction is being reduced will eventually be slated to become even smaller. In fact, if repositioning decisions continue to be made only on charge intake, removing large parts of an office’s territory practically guarantees that in the next round, the office will be further downgraded. This pattern fits with what the agency has done thus far. As District Directors retired, certain positions were not filled. Those same Districts without Directors are now, by and large, those that will lose the Director position.

D. The Business Case Has Not Been Made That Repositioning Will Improve Enforcement.

Finally, the business case for this proposal has not been made because the proposal does not improve enforcement of anti-discrimination laws and will further hamper our efforts in the South.

This agency exists because of race. Discrimination against African Americans was the main impetus for Title VII—and we are a product of that statute. The states that have the highest percentages of African Americans are Mississippi, Louisiana, South Carolina, Georgia, and Maryland. The proposed reorganization does not improve the offices in these states. The New Orleans and Baltimore offices are being downgraded from District Offices, and the Atlanta and Birmingham offices are having their jurisdictions extended without seeing an increase in personnel.

Our work in some of these states needs substantial improvement. In the last few years, race discrimination cases from Mississippi, Georgia, and Alabama have been close to non-existent or have been cases with minimal impact beyond the individual victim and employer. Louisiana has been slightly better, and Maryland has been much better—both are rewarded in this restructuring proposal by being downgraded.

This restructuring proposal provided an excellent opportunity to address this problem, but all it offers with respect to our lack of enforcement in the South is an office in Mobile, without attorneys and without the hiring of any new employees. Meanwhile, the Birmingham and Atlanta offices will also be given additional territory to cover, and Atlanta is left to languish with only two trial attorneys. This proposal in no way addresses the problem pertaining to our work in the South.

The agency’s most important asset is our best employees. Often our best employees are our most experienced. A stated goal of this proposal is to eliminate some of those employees -- the minimal cost savings are to result from eliminating some SES and higher-graded positions. Eliminating these positions leads to the EEOC losing experienced people through attrition or retirement and replacing them with less experienced individuals. Also, the plan decreases our ability to retain our best employees who want a realistic possibility of obtaining a higher-graded position. Our ability to hire and retain our best employees is particularly important in the South where widespread employment discrimination on the basis of race continues to exist, yet the Federal courts are hostile to employment discrimination lawsuits, and the discrimination in many instances is much more subtle.

Beyond its effect in the South, this plan may affect our litigation program nationwide. By design, the plan downgrades eight of our Regional Attorneys, our most senior litigators. As of now, it is unclear what positions they will have if this plan is approved. It is important to remember that the incumbents in these positions are not merely managers—they actually litigate cases as well as supervise other employees. The change in staffing for Regional Attorneys will have two effects; first, we will be losing our experienced core of litigators as the eight affected individuals leave and are not replaced. Second, the remaining Regional Attorneys will have significantly more supervisory duties, and, thus, less time to actually do the litigation. It is hard to see how these changes will help our enforcement efforts.

III. Conclusion

We should not be marking the 40th year of the establishment of the EEOC with a field repositioning plan that will not bring us any closer to our goal of eliminating employment discrimination. The business case justifying this proposal on a cost-savings, efficiency, or enforcement basis simply has not been made. Egregious employment discrimination continues to exist. As leaders and stewards of this agency, we have a responsibility to protect and strengthen the agency and not accept a proposal that is really just fool’s gold. I urge my colleagues not to vote on this proposal today. If a vote must be taken, I urge them to vote against it.


This page was last modified on November 14, 2005.

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