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Commission Meeting on Federal Sector Reform - November 12, 2002 - Transcript

The U.S. Equal Employment Opportunity Commission

The Commission met in the Clarence M. Mitchell, Jr. Conference Room (9th Floor), 1801 L Street, N.W. at 10:00 a.m, Cari M. Dominguez, Chair, presiding.

COMMISSIONERS PRESENT:: CARI M. DOMINGUEZ, Chair
PAUL STEVEN MILLER, Commissioner
LESLIE E. SILVERMAN Commissioner

INDEX

Agenda

Welcome - Chair Dominguez

Opening Statements

Chair Dominguez

Commissioner Miller

Commissioner Silverman

Question and Answer Session

Question and Answer Session

Question and Answer Session

Question and Answer Session

PROCEEDINGS

9:57 a.m.

CHAIR DOMINGUEZ:

The meeting will now come to order. Good morning. On behalf of my fellow Commissioners, let me welcome all of you to the Equal Employment Opportunity Commission. We appreciate your presence here this morning and your interest in the topic we're about to discuss.

We have a number of guests and senior representatives from OMB, the Senate and House staffs and from other federal agencies. Thank you very much for joining us today. It's a soggy day out there. Some of us had to paddle our way in, it's been so wet, but your presence here today reflects the interest and the commitment you have in improving the Federal Sector EEO complaint processing system. So thank you for that.

And let me also extend my deepest and our deepest appreciation to our panel members. Thank you for your willingness to come and share your experience and expertise with us.

Let us now proceed. Ms. Wilson?

MS. WILSON: Good morning, Madam Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat. During the period December 8, 2001 through November 8, 2002, the Commission acted on 85 items by notation vote.

COMMISSIONER MILLER: Madam Chair, I move that the list of items approved by the notation vote since the last meeting be entered into the record as if read in its entirety.

CHAIR DOMINGUEZ: Is there a second?

COMMISSIONER SILVERMAN: Second.

CHAIR DOMINGUEZ: Any discussion? Hearing none, all in favor please say aye.

(Chorus of ayes.)

CHAIR DOMINGUEZ: Opposed? The ayes have it, and the motion is carried.

MS. WILSON: Madam Chair, it would be appropriate at this time to have a motion to close a portion of the next Commission meeting.

CHAIR DOMINGUEZ: Do I have a motion?

COMMISSIONER MILLER: Yes. I make a motion to close a portion of the next Commission meeting.

CHAIR DOMINGUEZ: Is there a second?

COMMISSIONER SILVERMAN: Second.

CHAIR DOMINGUEZ: All in favor.

(Chorus of ayes.)

CHAIR DOMINGUEZ: Opposed? The ayes have it.

The purpose of this meeting is to examine the equal employment opportunity complaint processing system that is currently available to 2.7 million federal employees. Stakeholders representing both complainants and federal agencies have continued to voice concerns that the federal sector process is much too slow, far too expensive, unnecessarily cumbersome and given to potential conflicts of interest, even as some improvements have been made to it in the past.

During the past several months, I have met with representatives of advocacy groups who have graciously and generously shared their experiences and ideas for reform. Additionally, numerous individuals and groups have written us with their suggestions for improvement. Today's meeting represents a continuation of this ongoing dialogue. Please be assured that your input will be central to the Commission's deliberations regarding reform.

Our next step will to be discuss options for a complaint processing system that will be more efficient, responsive and fair. When the Commission is ready to propose a plan, we will do so through the formal rulemaking process.

The principle behind the phrase, "equal employment opportunity," or EEO, is that everyone has the right to compete for a job, to go about his or her work and pursue advancement free of discriminatory barriers. Race, gender, national origin, religion, disability and age have no place in these matters. Likewise, all employees should be able to seek and obtain prompt corrective action when they believe that violations of law have occurred.

Discrimination can have devastating consequences to people's lives. The system meant to protect civil rights should not compound their problems. More than 23,000 complaints of discrimination are filed annually by federal workers nationwide. The system is so overburdened that many of these complaints stagnate for years before they're resolved.

FY 2001 statistics, which are the most recent -- we still don't have the FY 2000 data available from the agencies, but the FY 2001 statistics show that federal agencies closed 25,283 complaints. However, only 3,830, or 15.1 percent, resulted from decisions of EEOC administrative judges. They took, on average, 800 days to process from filing to issuance of the agency decision compared to 402 days for complaints in which decisions were issued without a hearing. Hearings are a carryover from the old Civil Service Commission complaint process, but for many the hearing represents the only independent, neutral, objective review of the complaint in a process that some view as controlled by the agency allegedly to have discriminated.

If that is the purpose of the hearing, it clearly benefits very few complainants at a significant cost in time and dollars spent by complainants who frequently are represented by counsel. It's also expensive for agencies who normally are represented by counsel and who must fund witness travel to hearings and pay for other administrative expenses, and for the Commission who provides the administrative judges and the support personnel to process the hearing request, conduct a hearing and issue a decision.

While the majority of decisions finding discrimination flow from AJ decisions, not all do. One hundred and ninety-four of the decisions finding discrimination issued by agencies in FY 2001 followed an AJ's decision, compared to only 67, or 25.7 percent issued by agencies without a hearing. Agencies disagreed with 73 AJ decision findings of discrimination. Even including those decisions with which agencies did not agree and did not implement, only 344 of the 25,000 plus closures were, in someone's opinion, findings of discrimination. That represents a paultry 1.54 percent.

Five thousand two hundred and sixty-one of the agency closures were through settlements. Adding those to the 261 findings yields 5,522, or 21.2 percent of complaints, in which we can assume that complainants left the process somewhat satisfied. Those settlements took, on average, 523 days from filing to closure.

The use of alternative dispute resolution processes by agencies is not uniform or consistent. In FY 2001, only 2,526 formal complaints went through ADR. There were 1,336 settlements or resolutions. Fifty-two point nine percent of the complaints going into ADR were resolved, but they represent only 5.3 percent of the closures for the fiscal year. Meanwhile, aggrieved individuals, often without resources to retain legal assistance, become trapped in a complicated and labor-intensive process. They must deal with EEOC counselors at the informal complaint stage, with agency EEO complaint processors at the formal stage, investigators, contract or agency, at the investigative stage, EEOC administrative judges at the hearing stage, agency staff again at the decision staff, EEOC processors and attorneys at the appellate stage. And on top of all that, you add mediators and ADR specialists if there is a viable ADR program at the agency or if EEOC offers hearings -- ADR at the hearing stage or the appellate stages.

The taxpayers' bill for processing a single complaint can range from about $5,000 to more than $28,000, and the greatest cost, however, is to the livelihoods and hearts of the aggrieved individuals, and that price cannot be measured.

We have made some progress in processing federal sector EEO complaints. The changes to the regulations back in 1999 have yielded some positive benefits. Agencies are working diligently to reduce their processing time. EEOC's Office of Federal Operations has reduced its appellate processing time and its inventory significantly. Our AJs have increased productivity as well. But as the statistics show, our stakeholders' concerns and criticisms are still well founded. These issues demand and deserve the EEOC's attention. Even more compelling than the statistics, though, are the real people behind them. Commissioner Miller?

COMMISSIONER MILLER: Thank you.

I want to thank Chair Dominguez for convening this Commission meeting on the EEO process. The federal government has long aspired to be a model workplace and a model employer. In order to be a model workplace, the process by which federal employees address discrimination complaints must be efficient and expeditious and fair at the same time. It must be a process that results in justice for those who have been victims of discrimination and one that ultimately succeeds in eliminating discrimination and its effects in the federal workplace.

Moreover, because federal workers do not have the advantage of filing complaints with our FEPA partners in the states, nor have the EEOC file litigation on their behalf, and they have less remedies available than private sector employees, we must recognize that the processes which take into account -- we must recognize that processes which take into account these unique factors must be developed.

Over the past year, the EEOC has taken a number of steps towards the improvement of federal sector EEO process, most notably in 1999 when we amended our federal sector regulations, and the initial response results following those changes in regulations have been very positive initially. Hearing requests are decreasing, our hearing inventory is decreasing, the EEOC appeals inventory is decreasing significantly, and the time for agency complaint investigations is also decreasing. Despite our continued efforts and the hard work of many dedicated professionals, there is widespread agreement that the federal sector EEO process can be improved further.

I view this Commission meeting as an opportunity to engage in an open dialogue about the way that the federal sector EEO process works and the many potential suggestions for its improvement. I'm grateful to all of you who have agreed to serve as panelists today and all of those who have submitted additional comments to me and who I have met with personally. And to those who I will meet with in the future as we progress and as we move forward on this important issue, for your experiences and your ideas are important as we embark upon the analysis of the federal sector EEO process.

Input from outside stakeholders across the spectrum, whether they be agency EEO directors, employee attorneys, organized labor and management, or civil rights organizations, provide critical information for us to gain valuable insight into the problems we face, understand the impact of our decisions and develop creative solutions. I view you, as outside stakeholders, as our partners in this endeavor, and I look forward to working with you as we turn our attention to these critical issues. Thank you.

CHAIR DOMINGUEZ: Thank you, Commissioner Miller. Commissioner Silverman?

COMMISSIONER SILVERMAN:

This is an extraordinary meeting of the Commission, and I too would like to thank the Chair for convening it. I would also like to commend Chair Dominguez for having the courage and tenacity to take on this issue; it is not an easy one. The Chair is committed to improving the federal sector process, and I share that commitment. I agree with my fellow commissioners that our federal workplaces should be model workplaces, free from prejudice, harassment and retaliation. And our federal employees are entitled to timely recourse when discrimination has occurred. Yet the current system for processing federal employees' discrimination complaints does not always permit such fair and timely recourse.

The complaint processing is too often measured in years rather than days, and too many agencies have EEO departments that are overburdened and overwhelmed. All too often the complaint process is perceived by federal employees to be stacked against them and lacking in impartiality. We need a system that everyone can believe in. At the same time, we must remember that a number of important changes have been made in the federal sector process over recent years. Most recently, the Commission made some inroads towards improving the process with the revisions to the Part 1614 regulations, including the establishment of ADR programs in all agencies. But I don't think that there's a soul in this room who thinks that all of the problems are fixed and that our job here at the Commission is done.

So the Commission has begun this endeavor searching for ways to increase the efficiency, effectiveness and credibility of the federal EEO process. But for our reform effort to be successful, we need your help, for it is crucial that we have stakeholder input to identify and explore these difficult issues and their potential solutions. Today's panelists have different experiences with, and thus different perspectives on, the federal sector process, and I am anxious to hear from all of you, and I look forward to picking your brains today and as we move forward in this endeavor.

The responsibility for making the federal sector EEO process what it should be is one in which we all play a part. With the Chair's strong leadership and vision and your input, I believe that we can take significant steps towards making the federal sector EEO process one that befits the model workplace. I welcome your participation and I thank you all for joining us here today.

Panel I:

CHAIR DOMINGUEZ: Thank you very much, Commissioner Silverman. It is now my privilege to introduce our first panel members. We will now hear from three individuals who have actually utilized the existing complaint process. Let us welcome Carol Bernstein, an employee of the Department of Housing and Urban Development, Valerie Lloyd, an employee of the Department of Labor, and John E. Jones who is here representing his son, John R. Jones, an employee of the Department of the Air Force. Oh, he's not here yet. There may be some traffic delays. But let's go ahead and proceed and hopefully Mr. Jones will join us shortly. Ms. Bernstein.

Carol Bernstein:

MS BERNSTEIN: Good morning.

CHAIR DOMINGUEZ: Good morning.

MS BERNSTEIN: My name is Carol Bernstein, as you know. I am a trail attorney --

COMMISSIONER MILLER: The microphone.

MS BERNSTEIN: I am a trial attorney in the Office of General Counsel at HUD, Housing and Urban Development. I have been there for more 15 years in the Office of General Counsel. Twelve of them I spent in the Office of Human Resources Law, handling labor, personnel and EEO matters, none of which has anything to do with HUD's mission of providing equal housing for all people.

I spent a year and a half -- after those 12 years, I spent a year and a half in the EEO Office trying to help them to reduce their backlog of cases in a sort of ADR process of reviewing cases and identifying those that had issues that really were not EEO issues at all and others that seemed very ripe for settlement, and then I would propose what I thought was a workable settlement. And it worked in a few cases, not in all.

While I was there, I also participated in fashioning HUD's ADR program, which they had done nothing about prior to that point. I participated in first drafts of that program, which wasn't really -- doesn't resemble anything like what HUD finally did adopt. Anyway, two years ago, I went back to the Office of General Counsel in the Office of Fair Housing where I confront discrimination on a daily basis but from the other side -- I'm working on behalf of the victims of discrimination rather than on behalf of the perpetrator of discrimination or the alleged perpetrator of discrimination.

I want to preface my remarks by emphasizing that I am not here as the representative of my Agency. I am here in my individual capacity. I was invited to speak about my own personal views and my own personal experience, both as an Agency representative as a complainant in the process.

When I was an Agency representative in the EEO process, I viewed my position as an advisor to my clients, my client being the Secretary and the Assistant Secretary for HUD, a legal advisor about EEO matters. And when a case came to me to prepare for a hearing at the EEOC, I would review the Report of Investigation and then I would interview the management officials and witnesses and then conduct some discovery. If I found that the complainant's case had very good merit, I felt compelled to suggest that maybe the Agency should settle this case.

I worked in a division, however, that was very reluctant to settle anything. Their view of settlement was that that was an admission of wrongdoing and liability, and they were very unwilling -- that's not to say we never did settle a case but it was with reluctance that that occurred. I also found sometimes when we went to hearing and we had an adverse decision against us, whether that was in the administrative hearing or in court, the Agency was also -- my Office was also sometimes very reluctant to implement the remedy, the view kind of being that we can afford to outlive the complainant's ability to -- and the ability to pay and financial ability to continue to carry the case on. I found that very frustrating, and at times I found that it presented ethical issues for me.

For about eight years of my 12 years in the Human Resources Office, I was working for a man who, in my view, he was threatened by intelligent and educated women, and he was very abusive of the women in his office, and I felt often in that period of time that I should file an EEO complaint. But when I would speak to him about my concerns, he would say, "Yes, I hear you, and, yes, I will change, and I read your lips," and I wanted to believe that, because I wanted to avoid what I had seen happen to many complainants as an Agency representative. I wanted to avoid, you know, the labeling you get as a troublemaker, the emotional distress that it causes people, and I wanted to avoid that if I could, so I wanted to believe him. But, finally, in 1998, another instance happened, and I decided that I would file a complaint. And it took a lot of courage, I think, to have done that.

Prior to my filing a complaint, I and many, many others had been to the General Counsel to complain about this particular person, and she would agree that she knew about the problems and she would take care of them, but she never did. And so although others had make informal complaints, I was the only one that I know of, at least, who had filed a formal complaint.

The process after I filed the complaint, I can't say it worked terribly well for me. I can confirm all the things that Chair Dominguez has said about the time, the length of time it takes to go through the process. I filed my complaint, and by the time -- let's see, I filed the complaint in the fall of 1998, and it was over a year later before the Agency had finally determined which issues it would accept and investigate. And that was because they did so earlier, and then I asked for a reconsideration of those that they rejected, because it was clear to me that the EOS who had done it had not quite understood my allegations. And then that request, apparently, got mislaid somewhere or the response got mislaid, and it took many, many months, and it was only after I inquired about it that they found it. Finally, it was over a year before my issues were accepted.

Then it went to investigation, and the investigator took almost a year to submit his report, in part, or mainly, I suppose, because he could get no cooperation from Management whatsoever. The alleged discriminating official would not speak to him. He would schedule meetings with him but then he never made those meetings. So he finally submitted his report without any affidavits from Management. The EEO Office decided that they needed a supplemental, but that investigator wouldn't have anything more to do with HUD, so he wouldn't do a supplemental. So it had to go to another contract investigator, and starting all over that person didn't have any luck getting an affidavit from Management either but wasted an awful lot of time requesting documents that were totally irrelevant having to do with a period of time long after I had left that Division and had sent interrogatories to people asking the same questions regardless of what their affiliation with the Office had been. So that was a rather incompetent investigation.

Finally, I requested ADR. I filed a second complaint in the winter of 2000. And when I did that, the new regulations, EEOC regulations, were in effect, and I asked for ADR. And the counseling period was -- and I asked for a consolidation of my complaints and for ADR. And the EEO Office determined that my complaints could be consolidated and that they were appropriate for ADR, and they set up a mediation -- contact with a mediator. And the alleged discriminating official in this case apparently had the authority to say whether they, the Agency, would or would not, and he refused to participate in ADR, told the mediator that as well.

So after the investigations were all complete, which was another year later, we're now at two and a half years into my complaint, we had a new administration, a new General Counsel, and I asked for an EEOC hearing, and so they had to start preparing for that. And the front office became aware of my complaints, and they approached me and asked me if I was still interested in ADR, which I was. But it kind of bothered me that I had asked for it over a year prior to that and had been refused, but this was a new administration, a new General Counsel, and I think they were interested in a more employee-friendly atmosphere, and so I agreed to ADR.

We went to ADR, we went to mediation in January of 2002. We're now at four years into my complaints, and we resolved the issue. Hostilities were there. I mean they were entrenched by this time, but with the help of two very, very skillful mediators, we resolved -- we came to an acceptable resolution. It took another five months to implement that agreement, but ADR worked, and I've always been an advocate of ADR and I still am. Of course, it should be utilized at the beginning of a dispute so that you can save the time, the acrimony, the emotional distress and resolve the issue in the very beginning. In my case, it didn't happen that way, but I am an advocate of ADR.

However, HUD's ADR program -- now, this came from our front office and so we went to it successfully -- the ADR program at HUD allows Management to decide whether they will participate. I mean he decided that we would not participate and that has not changed except that the front office decided that they would overrule him and go to ADR. But my suggestion would be that if it can be mandated that the agencies require management to at least sit at the table if ADR is requested by the complainant, and that's not mandate to settle, but I would suggest that if they sat at that table and if they had as skilled mediators as I encountered in mine, that they might even be able to bring two warring, hostile parties to an agreement, to recognize that everybody wins when you can avoid what I had gone through prior to.

Also, I understand from what you say that very few people -- I do view the EEOC hearing as the only unbiased forum, but I understand that very few people utilize that, and I find that a fact that's hard to accept. I mean I don't dispute the fact, but I wonder why because I too feel that the agency -- asking for a decision of the agency is just a prescription for defeat, because the agency almost always will support the agency. And because although we say the EEO director is independent, in fact he or she is not independent of the agency.

So I am certainly in favor of continuing hearings despite apparently the great cost. I would suggest that an administrative judge be authorized to sanction an agency that does not cooperate with the investigation rather than just sanction them for not abiding by the AJ's orders. But the ROI is part of the file, and if it's clear from the ROI that the agency has not cooperated, I see no reason why the AJ shouldn't be able to sanction -- preclude that person, the person who wouldn't cooperate, preclude his or her testimony from a hearing.

Of course, another alternative, another thought I've had, is to lobby Congress for legislation that would make an EEO director independent, just like the IG is, and not answer to the Secretary and not answer to the management of the agency. And then decisions from the agency, I think, would be less biased and would carry more weight.

The last thing I want to say is that, clearly, without accountability, without management accountability, there will be no reforms that will work. I mean I find that to be so in my own case. We settled my case, it went to ADR, and it was successful. The offending official, and at least 30 people had been to the General Counsel about this person before, is still in his position of authority and still doing -- still people are leaving his office for the same reasons, and Management is very much aware of it but they haven't done anything about it. And at HUD, and probably elsewhere, all managers have an EEO component to their performance appraisals but they never seem -- in reality, they are not measured against their success at resolving disputes nor are they negatively measured by the number of complaints that are issued against them or made against them or filed against them.

So I think, and I don't have a suggestion on how to do it, but I think very strongly that if management -- I mean I know the EEO laws are designed to remedy the victim, but if you remedy one victim and leave a whole slew of other victims there under the same management, under the same person, and take no action toward that person, then I think it's a lesson in futility. Thank you.

CHAIR DOMINGUEZ: Thank you very, very much, Ms. Bernstein; appreciate your sharing your experiences with us. We are going to hold off on the questions until we hear from your fellow panel members. So, Ms. Lloyd, welcome.

Valerie Lloyd :

MS. LLOYD: Thank you for inviting me today, and I also thank the Department of Labor for allowing me to speak to you, although I do speak on my own behalf. I'm a member of Groveton Baptist Church, the Society of Federal Labor and Employee Relations Specialists, the American Federation of Government Employees, Blacks in Government and the NAACP Federal Sector Task Force. I support the No Fear Coalition, the Federal Employees Legal Defense Fund and the Republican Party of Virginia. I am the daughter of a West Point career officer, and Senator Warner appointed my older son to the West Point class of 2004.

CHAIR DOMINGUEZ: Congratulations.

MS. LLOYD: Thank you. He's doing well. For the first 25 years of my career I had a high- performing career in the Department of Labor and I earned outstanding ratings and performance bonuses and awards. I had no need for EEO. When I became team leader in the Performance Management Unit, I had to deal with a poor-performing male co-worker who harassed me and made threatening remarks. He even made a reference to a gun, and when that happened I felt I had to report it to my managers.

My boss' retaliation began within a month, the silent treatment, refusing to review my work products, saying one thing and doing the opposite. Soon the rest of the team started following her example. Within four months of making my reports, I was told I would be removed from my team leader position, demoted and take a cut in pay. It took four more months to effect it. In the meantime, I was advised to keep doing the job or I might be guilty of insubordination. I suffered daily in that hostile work environment and was not able to leave for almost three years. The damage to my career and professional reputation is ongoing. I have had to file seven EEO complaints, all claiming retaliation.

Administrative procedures are supposed to be more streamlined and more timely than legal procedures. Why is the federal EEO, quote, "administrative procedure," so legalistic? It never ceases to amaze me that I am still in the EEO process four years later. I didn't want to be forced into endless legal proceedings; I wanted help resolving the problems. So far every step of the way has involved legalistic technicalities that I can barely comprehend, and I'm not stupid. At each phase I've had a different attorney -- four different attorneys so far. The price tag is well beyond $15,000 at this point.

The more I learn of the EEOC's regulations and directives, the more I am disgusted with my own Agency's failure to follow them. The more I review EEOC's data in the Annual Report on the Federal Workforce, the more I am disgusted at the poor performance statistics of nearly all federal agencies. In the four years I've been a complainant, my first two complaints were combined and dismissed, the third investigated with a final decision of no discrimination, and the rest are combined into an ongoing investigation. Oh, I've also been involved in three rounds of settlement negotiations, all of which Management withdrew from.

I believe the problems with the federal EEO system are management problems, part of the government's human capital crisis. Managers perpetrate most of the discrimination and retaliation. According to surveys in the July 2002 Government Executive Magazine, federal employees report most managers can't, quote, "manage their way out of a brown paper bag." EEO reform should be addressed in the Agency's response to the President's management agenda, but I don't see it happening.

In the Human Capital Edge, authors Bruce Fallon and Ira Kay prove that superior HR practices are associated with the nearly 50 percent jump in shareholder value. They've measured the effects by 43 indicators in various categories. They also document diversity, fairness and equity are all contributors to employee satisfaction, which is correlated with improved business results and can easily translate to the federal government arena.

No doubt adopting their recommendations would improve management practices in the federal government and greatly reduce the discrimination and retaliation that underlie EEO complaints. I'm trying to get my Agency's HR folks to read the book. Knowing what I know about how agencies abuse and ignore EEOC's requirements, I believe that until the EEOC gets effective accountability and enforcement mechanisms in place, any other reforms will have little effect on the EEOC's mission accomplishment.

My take on the problems in the federal EEO system can be summed as follows: The system is too complex, there are too many steps and pitfalls for the unwary, there is a perceived conflict of interest in having the accused agency control the development of the record, there are long delays to get to a final decision, there's a lack of sanctions against agencies for inadequate investigations and inexcusable delays. "These problems disadvantage most particularly the federal worker," and I'm quoting former Chairman Evan Kemp from March of 1990.

Today, I can only briefly share some of my suggestions. To have the most effect on reducing the caseload and costs of EEO, I believe EEOC should focus on eliminating and preventing retaliation. It is the most frequently cited basis for complaints, probably also the root cause of most multiple complaints. Most federal managers have no idea what constitutes retaliation, and they need training on how to identify, stop and prevent their own and other's retaliation. A major public information and training campaign is needed, similar to what we received on sexual harassment several years ago. Eliminate retaliation and you will save a lot of taxpayers money and have a beneficial effect on the well being of many competent federal employees.

I suggest you have only one office in each agency that's allowed to call itself anything with EEO in the name, and only its employees may have EEO in their job titles. At DOL, only the Directorate of Civil Rights can take employees' EEO complaints, yet there are ten other agencies in DOL that have so- called EEO offices with EEO managers. Furthermore, I think there should be separate offices for external civil rights enforcement and for internal federal employees' EEO. It's clear that in my agency the emphasis is on the external enforcement. Federal employees get the short end of the stick.

Federal EEO system is incredibly confusing to employees, made even more so by the agencies' failure to follow EEOC guidelines. The fiscal 2001 report on federal workforce cited, quote, "Labor's EEO Director reports to the Assistant Secretary for Administration and Management three levels below the Agency head." All of DOL's EEO forms say, "Office of the Assistant Secretary for Administration and Management" in bigger print above the small print, "Directorate for Civil Rights." That's a violation of EEOC's regulations, as EEOC correctly wrote in its guidance on retaliation, "Having the EEO Director in the same organization as Human Resources and Personnel has a chilling effect on the willingness of individuals to speak out against employment discrimination or participate in the process."

You should limit the agencies' use of collateral duty counselors and investigators who cannot perform at the same level of competence as full-timers. Do not confuse employees by calling staffers in the EEO Office counselors. These people do not function the same way most people understand counselors to function, which is assisting clients achieve the clients' goals. These folks should be called fact finders.

You should provide more balance between the parties by limiting the potentially catastrophic legal costs to complainants and by limiting the agencies' access to unlimited taxpayer-funded staff specialists and lawyers. I've read in the private sector the focus on the bottom line provides incentive for speedy dispute resolution to save time and money. Some employers offer a menu of alternative dispute resolution options, and the employers pay all the costs except for what's essentially a co-pay. Balance could also be ensured by adopting employee participation or three-party models of ADR. I believe the best ADR programs will be designed and operated using employee participation, followed recommendations of the good old Dunlop Commission.

I believe you should modify the election of forum provisions so that they're not irrevocable. As Steve Burke points out, most complainants do not know enough to make informed irrevocable election of forum, and this has greatly complicated my own case. I knew nothing when I had to make an EEO complaint, and I made the wrong decisions early on, and it has cost me dearly.

I think you should clarify the issues between the collective bargaining and EEO. There are a lot of them. I think you should restore funding levels to their highest levels. That's probably not within your control, but it should happen, according to the suggestions of the U.S. Commission on Civil Rights report, the ten-year check-up, have federal agencies responded to civil rights recommendations? I think you should raise the administrative judges' top grade levels and pay higher salaries commensurate with the MSPB. I think you should support all the recommendations of the Council of Federal EEO and Civil Rights Executives. I think you should develop guidelines for an expedited EEO procedure to be provided in experimental or demonstration personnel projects. This will help reassure employees who worry that these new provisions will be used as more tools of discrimination and retaliation with fewer or no protections.

And I think you should add another protective class to Title VII -- well, you shouldn't, Congress should. The protected class should include employees who are subjected to workplace violence or threats of violence. This is one of the worthy objectives of the Bullybuster's Organization with which I do agree.

I like your web site, but it could be improved by keeping it up to date and putting all your data books on there. Practice what you preach, walk the walk, treat your employees the way you're telling the other agencies to treat theirs. People are suffering profoundly during the interminable EEO process. They're losing their jobs, their life savings, their homes, families, their health.

I'd like to quote one of the thousands of messages that I have shared on the Moving Forward chat community. This is from an anonymous member of the community. Quote, "What hurts so much about the EEO process is that many of us have assumed that it would help us heal. Many of us have found out instead that it makes thing worse. We then not only need to heal because of the original situation but also because of the EEO process. This is because the EEO process is not an antidote for discrimination, it is part of the discrimination. Thank you."

CHAIR DOMINGUEZ: Thank you very, very much, Ms. Lloyd. Mr. Jones.

John E. Jones :

MR. JONES: Good morning.

CHAIR DOMINGUEZ: Good morning.

MR. JONES: My name is John E. Jones. First, I'd like to thank the Chair and Commissioner Miller and Commissioner Silverman for this privilege to share with you the trials and tribulations we encountered in taking our EEO case through the EEOC federal sector process. I am a layperson with no prior knowledge of the EEO process. I represented my son at his request in his EEO complaint. His complaint involved non-selection for permanent employment. At the time of his non-selection, Ricky was an existing term employee at Robbins Air Force Base, Georgia, doing the very same aircraft sheet metal mechanic work for which he applied for permanent employment.

Ricky filed his initial EEO complaint on March 10, 1998. EEOC issued its final decision on November 14, 2001. This represents three years and eight months in the EEOC process attempting to obtain justice. EEOC, in its final decision, found the Air Force guilty of two violations of employment discrimination. However, EEOC failed to provide any relief or damages to the victim of employment discrimination -- no job, no back pay, no interest on back pay, no compensatory damages, no reimbursement of expenses of going through the process for three years and eight months. No make whole remedy was provided by EEOC like it should have been. The law presumes the victim of discrimination should be placed in the position he would have been in had the discrimination not occurred. EEOC failed to do this.

After Ricky filed his EEO complaint, the following happened: His 971 personnel file is missing, his annual performance review was shredded, he is placed on enforced leave, and the Agency attempts to separate him from employment. At an interview with Agency personnel officials, he is told by the senior official that the only person who could hire John R. Jones for permanent employment at Robbins Air Force Base is the President of the United States by executive order. During Agency processing, Agency violated federal law in not timely producing the Report of Investigation. A third party contract EEO investigator who did not have a contract with the Agency conducted the EEO Agency investigation. Agency improperly prevented Complainant from recording the testimony of government witnesses. The Agency Personnel Manager submitted false information under penalty of perjury to EEO investigator. Agency attorney submitted false information to EEO investigator. Two of the six hiring panel members submitted false information under oath to the EEO investigator. The EEO investigator failed to obtain an affidavit from one of the six hiring panel members. The Agency refused to provide a copy of the EEO investigative report to Complainant as required by law. EEO investigator failed to obtain an affidavit from people we requested be questioned.

In October 1998, the Deputy General Counsel of the Department of Defense initiated a call to me from the Pentagon in Washington stating he had reviewed documentation I had submitted to Agency during the EEO investigation, and it appeared to him the EEO process was apparently not being followed properly and he was concerned about it. He asked that I keep him informed.

In EEO processing through the Atlanta EEO Office, Agency was uncooperative in Complainant's request for production of documents. Agency attorney Brenda S. Mack failed to process our interrogatories. When pressed to produce the interrogatories, the Agency attorney personally answered the interrogatories. We consider this to be legal malpractice. The EEOC judge was requested to sanction Agency for this action. He failed to do so stating, "What good would it do?"

Agency delayed the EEOC hearing on the first day for over an hour trying to locate a missing witness. Upon the witness being located, the witness stated under oath she had not been informed to be in court that day to testify. On July 28, 1999, Major General Richard M. Goddard, Robbins Air Force Commander, at the conclusion of his deposition personally agreed to a settlement agreement, which he later that same day failed to honor.

The morning of the second day of the EEOC hearing, the EEOC judge told myself and my son words to this effect, "I read your MSPB brief last evening and have heard the testimony of the first day of witnesses. It looks like you are going to lose your case, so I suggest you revisit settlement." This biased conduct by an EEOC judge is reprehensible. The judge's biased conduct so upset my son that at that very point I had to send him home immediately and conduct the rest of the EEOC hearing without his presence.

Agency failed to comply with OPM rules and regulations. Agency attorney when scheduling a Base employee who was our exclusive witness inquired of our exclusive witness what his testimony would be the next day at the EEOC hearing. We consider this witness tampering. Agency officials provided conflicting testimony under oath about an Agency decision not to hire any term employees on limited duty.

Witness testimony under oath shows an Agency operation supervisor was invited to a hiring selection panel meeting on January 7, 1998 to share input about prospective term employees being considered for permanent employment and shared with this panel prohibitive confidential medical information about my son. At a meeting of Agency officials and the Agency occupational physician on January 20, 1998, prohibitive medical questions were asked and prohibitive medical questions given that EEOC has ruled violated federal law.

Testimony under oath has revealed that Executive Director Stephen L. Davis ordered two Division directors to review non-selected applicants' medical records, including my son. EEOC has ruled it was not necessary for these Division directors to have access to this information nor to convey it to the Executive Director as the applicants had already been non-selected. This disclosure, therefore, was a violation of the Rehabilitation Act. At the EEOC damages hearing, Agency attempted to call an unscheduled witness.

EEOC in Washington took almost six months to decide initially it had no jurisdiction in the matter because of our MSPB case. After we dismissed our MSPB case from federal district court and refiled our EEO case, EEOC misdockets the case and we lose another five months in administrative mistakes. In June 2001, EEOC makes an initial relief of one count of employment discrimination and no relief for damages at all for my son. We then file with EEOC a request for reconsideration citing errors of fact in EEOC's decision and pointing out there were other violations EEOC failed to cite. EEOC in November 2001 issued its final decision agreeing with us of several errors of fact and agreeing there was a second Agency employment discrimination violation and again steadfastly refusing any relief or damages for my son.

The federal sector process failed to deliver justice in our case. It fails as both the process and the people who operate the process. There were many more problems with our case that time does not permit to be revealed to you here today. Consider these problems the tip of the iceberg. My son who has suffered so much without cause has been on Workmans' Compensation since September 1998 and under the care of a psychiatrist since May 1998. On August 12, 1999, the Office of Workmans' Compensation accepted Ricky's claim for consequential depression.

Ricky still has no job while all his coworkers receive permanent employment from the government and go on about their lives. Note that none of the people who violated the law in my son's EEO case has ever missed a paycheck or been disciplined in any manner for their unlawful actions. I estimate by the time this matter is fully resolved it will cost over a quarter million dollars.

We respectfully request EEOC to amend its final decision in this matter and provide employment and appropriate relief and damages to John R. Jones, the Complainant. This will allow the pending suit to be dismissed. Due to the Agency's failure to comply with your mandatory orders, it would appear they have no standing as to objections in amending the decision. EEOC in its November 14, 2001 decision, had four mandatory orders for the Robbins Air Force Base. They implemented none of these timely, and they have not implemented one of these four even as we speak here today.

Please do not allow injustice to prevail. For the record, we vigorously object to any potential reform of the federal sector process that would eliminate either the agency investigation or the hearings process. We do have a number of ideas, five pages, of how the federal sector process could and should be reformed, and we leave these with you today in print form. Thank you.

CHAIR DOMINGUEZ: Thank you very, very much, Mr. Jones. We have just a few minutes left of this Panel's hour. Perhaps we can get a few questions into you. Commissioner Miller?

COMMISSIONER MILLER: Thank you, Chair. First, I want to thank each of you very much for taking time out to come and speak with us. Your testimony is important and, as we like to say here, puts a face on the case of the kinds of issues that we grapple with. We understand, and your testimony absolutely indicates, that the kinds of issues that we're talking about today are not just abstract policy issues but affect real people, real workers, real complaints, and that's why I think it's so appropriate that we start out hearing from the three of you.

I'm interested in knowing whether any of you sort of considered filing an action in federal court, sort of leaving the EEO process and going directly to federal court at some point?

MR. JONES: We have filed in federal court on February 11, 2002. We are in that process as we speak.

MS. LLOYD: And on my case, I have a court date next week to begin pre-trial motions.

MS BERNSTEIN: I did briefly consider it but that we before the investigations were completed and when they were I decided to go the administrative process and ask for an EEO hearing. I think had I gone to hearing and been disappointed with the decision, I would then have gone to federal court. But who's to say because it was settled before that.

COMMISSIONER MILLER: Ms. Bernstein, did you feel that the threat of the hearing process had any value in your mediation of the case, of bringing people to the table, trying to resolve the action?

MS BERNSTEIN: Yes, very definitely. I mean, on my own part, of course there's always the risk. I felt I had a very strong case, but there's always the risk that the AJ might not agree. I do definitely feel on the Management side they obtained the ROI, and remember, as I told you, the ROI didn't have any Management -- at least the first one didn't have any Management affidavits in it, but it was replete with affidavits from other people in support of my view. So I think that the threat of that was a concern, but also we had a new administration that I think they inherited this problem, and I think they wanted to clear it if they could. So I think it was not just the threat of the hearing but also a desire on the part of the new administration to rid itself of problems that it had inherited.

COMMISSIONER MILLER: Okay. Thank you.

CHAIR DOMINGUEZ: Commissioner Silverman?

COMMISSIONER SILVERMAN: I guess I just have a comment or two. First of all, I want to thank you for your courage for coming today. I know it's not easy to be a witness, and we really appreciate your talking to us today and for your convictions, which are obviously very strong. In my own experience, I think that there is the act of discrimination but then there is the process, and sometimes that compounds the act of discrimination and it grows into its own separate monster, and it sounds like you've all had to deal with that monster and that you're still dealing with that monster. And the monster is compounded by the time, the amount of time it takes.

So two things are clear to me from what you all have said. Number one, we have to do something to reduce the time. In the private sector, mediation has been really effective and I know that that is not a Band-Aid for this whole thing, but it's something that would start the process. And number two, somehow we have to get the agencies to comply with the rulesthat are on the books currently. So I want to thank you. It was very helpful to hear from you.

CHAIR DOMINGUEZ: Thank you, Commissioner Silverman. And I too want to echo my fellow Commissioners in thanking all three of you. It's fascinating from my perspective to hear that all three of you have gone through this process and yet had to deal with very different issues depending on the agency and the type of management that you had to deal with.

Just one quick question: Of all of the things, of all of the steps in the process that you went through, what would you say was the most helpful? Or was there a helpful step? (Laughter.) But of all the things, is there one thing that you felt that the Federal Complaint Processing System had in its favor?

MR. JONES: Yes. I would like to address that this way: I'm dealing with the Air Force which has an FY 2003 budget of $107 billion and 500,000 to 600,000 employees. The Base that my son is employed at has 20,000 employees. For an outside individual, not a government employee, not familiar with the EEOC process, without the ability to use the Report of Investigation to see the end relationships and who reports to whom and how all this is laid out, and then I personally took 22 depositions. We had 17 affidavits, and I think there were 17 witnesses, okay?

Through that discovery process, we were able to find the truth that discrimination had occurred, who did it and when they did it. But if you were to take away the Report of Investigation, take away the depositions, take away the hearings, there is no way, I believe, that we would ever have been able to have achieved the truth or found the truth, so to speak. And at this point, our position is that there were more two discriminations. Even though EEOC has found two, we contend that there are others.

But the point of it is the Agency has -- they have the documents, they have the records, they know what happened. They also know how to cover it up, and in my opinion they might well be inclined to do so depending upon the circumstances.

CHAIR DOMINGUEZ: Thank you.

MS. BERNSTEIN: The one bright light --

COMMISSIONER SILVERMAN: Yes.

MS. BERNSTEIN: -- in my view, is ADR, and I think it needs to be utilized more, I think it needs to be required -- as I said before, required that the agency at least participate because I think that's the cure for the problem.

MS. LLOYD: And for me I think that the one bright aspect of the Federal EEO Process was the hope it gave me for a legitimate redress of grievances, that I felt I had no other recourse other than to pursue redress. The corollary is the disappointment I encountered in actually engaging in the process and how the Agencies totally abuse, delay, corrupt, stymie the process way beyond its intent.

CHAIR DOMINGUEZ: Thank you. Again, thank you very, very much, Ms. Bernstein, Ms. Lloyd and Mr. Jones, and our best to your son, Mr. Jones.

MR. JONES: Thank you.

CHAIR DOMINGUEZ: We greatly appreciate it and hope to continue our dialogue with you. Thank you.

Panel II:

Our second panel this morning is composed of three individuals who have gained considerable expertise in the complaint process through their functional roles and responsibilities, either currently or in the past. Please join me in welcoming Patricia Marshall, who is the Counsel to the Inspector General for the Railroad Retirement Board; Chris Sale, who is currently the Deputy Advisor for External Relations in the Inter-American Development Bank; and Joel Bennett, who is the plaintiff's attorney representing his own firm.

Do please keep in mind that we have about five to seven minutes allocated for speakers so that we can engage in a good interaction. Thank you. Ms. Marshall, welcome.

Patricia Marshall :

MS. MARSHALL: Thank you for the opportunity to discuss the Federal Sector Equal Employment Opportunity Complaint Process. As for my background, I serve as the Counsel to the Inspector General of the Railroad Retirement Board. The Railroad Retirement Board is an independent agency in the executive branch of the federal government and this agency administers retirement, Medicare, disability, sickness, unemployment and survivor benefits for the nation's railroad workers. The Office of Inspector General conducts audits and investigations of the agency's programs and operation. The OIG also recommends policies designed to promote efficiency in the administration of the RRB and to detect and prevent fraud, waste and abuse in the agency.

My remarks concerning the federal sector EEO process are derived from a paper entitled, "Examining the Inefficiencies of the Federal Workforce," which my agency's Inspector General, Martin J. Dickman, and I initially issued in September of 2001. In this paper, we examine the inherent redundancies, inefficiencies and inequities in various administrative tribunals, and we also suggested recommendations of consolidation and streamlining of the various administrative processes.

This suggestion was not meant to be a panacea for all the current problems but was meant to generate discussion of viable alternatives and resolve problems inherent in the current workplace. While the scope of that paper and solution encompassed claims that are not entirely within the jurisdiction of the EEOC, some of the problems with the current process and the potential solutions are applicable to today's discussion.

I would like to focus on one aspect of the EEO process that is particularly onerous for both the complainant and the Agency. That aspect is the allowance of numerous opportunities to develop the factual record through repeated statements, testimony and discovery requests of both parties. The parties provide statements and materials to an EEO counselor following the filing of an informal complaint and later to an investigator after a formal complaint. Prior to a hearing before an EEOC administrative judge, the parties conduct discovery, which can consist of depositions, interrogatories and document requests. At the hearing, the parties may testify and introduce other documents into evidence. The factual record may be developed yet again de novo, which means everything that just happened to this point is for naught if the complainant files a complaint in the federal district court. The discovery process is allowed to start all over again with depositions, interrogatories, and document requests. There is potential for another trial where the parties may testify and introduce documents into evidence.

By the time the district court issues a decision, the parties may have been required to give at least six separate sworn written or oral statements concerning the same set of facts. Allowing multiple opportunities to develop the factual record is inefficient, burdensome and detracts from the integrity of the administrative process. It's unprecedented in the legal system to routinely allow the parties numerous opportunities to develop the factual record. This is contrary to the typical notions of justice which gives injured parties just one chance to prove their case.

For example, in administrative tribunals at the state level, generally the facts are developed at the administrative level, and then the record is just appealed through the court system based on those facts. In such systems, the courts are limited to either the application of law to the facts or to ensure that the decision under review is not arbitrary or capricious. Even in criminal cases generally the accused receives only one trial and one opportunity to develop the facts.

Duplication inevitably results in undue delay. According to the EEOC Annual Report on the Federal Workforce for Fiscal Year 2001, the average processing time for a case from the formal complaint filing to resolution by the EEOC was 464 days, and that's for fiscal year 2001. This figure excludes time in the informal complaint phase and then the time a case may pend in the federal court system. Therefore, the actual time spent in the EEO process for federal employees is higher. Because of the multiple steps and repetition in the system, employees may be required to wait an unreasonable amount of time for justice, and it is often said justice delayed is justice denied.

My recommendation primarily focuses on eliminating the repeated opportunities to develop a factual record. The facts of any given case should not be changing. Both parties should be given a single opportunity to develop the facts. This will likely reduce the time needed to reach a resolution for the parties and should be less burdensome. There are various ways to accomplish this type of goal. One option is to streamline the process, keep the informal complaint process essentially the same except the source of counselors. I would recommend that the counselors have no employment relationship with the agency in which the dispute arose, and instead would be derived from a government-wide pool of counselors. This may strengthen the administrative informal process and remove any perceptions of bias.

I would also recommend combining the investigative and administrative proceedings before the EEOC. The investigation could essentially be conducted during discovery procedures, and the fact- finding process would be streamlined with only one chance for depositions, interrogatories and document requests.

I would also recommend that this process be overseen by an ALJ at a neutral third party adjudicatory body. This would separate litigation and regulatory enforcement functions of the EEOC. I would also recommend that there be a safeguard to the parties' rights throughout this process and that the parties should retain the right to appeal any administrative findings through the court system. But I also would recommend that such appeals be limited to the facts that are already developed in the record. Another alternative to change the process is to have the federal sector complainants in a process that is the same that is now afforded to private sector litigants.

The current process for resolving federal sector complaints is replete with pointless duplication of effort and related delays. As a consequence, both the complaining employee and the agency are needlessly burdened and meritorious claims are not resolved in a timely manner. There is many possible ways to reorganize the current system, but now is a good time to change the problems in the existing system. The solution that I just proposed, along with prior proposals that my Agency may have made, to reform the process is meant to generate a meaningful discussion to resolve the very important employment issues in a more timely manner. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Ms. Marshall, and we greatly appreciate the Office of Inspector Generals at the Railroad Retirement Board taking an interest in this process. We appreciated getting your report. Thank you. Ms. Sale?

Chris Sale

MS. SALE: Good morning, Madam Chairman. Thank you and the Commission for inviting me here. I am a retired federal employee with over 26 years of service. I am not here on behalf of the Inter- American Development Bank.

CHAIR DOMINGUEZ: We didn't think so.

MS. SALE: It is not a federal agency and not in fact a U.S. government entity. I happen to be a woman of Hispanic descent. When I first sought employment in Washington, people kept telling me to look for an EEO job because I speak Spanish, I guess. I also noted at that time I didn't get a job because on my third interview I refused someone's unsolicited advances. Early in career I remember asking one boss not to keep me off the road, stop me from traveling in deference to my gender because I thought it would avoid my getting a qualifying experience for future assignments, and I did have to work with another boss who initially advised me that my promotion would wait because Joe's wife was having a baby and you have a husband.

I was lucky. Those bosses heard my rebuttals and didn't cause me to be in a position to interfere -- to have to exercise EEO requirements. When I retired from the federal government, I had worked in 16 separate federal agencies, and I had spent 17 years as a senior executive in increasingly senior positions managing large, decentralized organizations.

A lot of my remarks are going to be predicated on my experiences as Operations Manager in an agency and not as either an attorney or as an EEO professional. I am a firm believer in the purposes that the EEOC was established for and the laws that it requires. I have in fact seen policies and practices infringe on individuals' freedoms to serve and ability to productively provide the government with the best that they have to offer. And so I really do believe that the basic fundamental goal that you're about is important. On the other hand, I think in fact the system does need significant improvement.

I have seen employees who, having spent many, many years of painful and difficult processes, arrive at some sort of settlement with an agency or in few instances an EEOC determination that then an agency had to implement where I think the pain of the process greatly compounded the pain of their initial complaint. And I have been involved in executing EEOC requirements and/or in settling cases.

On the other hand, I have seen the system tolerate abuse of itself. I have seen employees with upwards of 34 complaints to their name with a clear intent, either out of frustration or out of a sense of aggravation, to infringe on the system and cause some of the case management problems that you alluded to earlier just by virtue of multiple filings. I mean I've seen employees apply for every vacancy in an institution, even knowing that their quals didn't -- would never have qualified them for the job, and then they filed multiple complaints on that bases. I know that in the last few years we're able to bundle those cases and manage them, but that doesn't necessarily make the system work well without casting aspersions on the motivation of the employee.

I have seen agency counselors unwilling or unable to advise employees as to the relative merits of their case, but rather manage the employee's individual instance in a paint by numbers process, because this is what the rules are and so we have to go through every single one of these procedures, when in fact a more honest conversation on the relative merits of what we're about might have resolved the issue.

I don't want this to be only about abuse of the system by employees. I too have seen managers who are unwilling to hear the facts or to understand someone else's perception of a set of facts because of the way the facts were established. Managers stuck on ill-conceived rule to control in fact have lost control because they then become a party to this ill- use of the system and the attenuated lengthening of any individual's case.

I think we need to find mechanisms to hold managers accountable to participating in the process and that it not be simply a function of a senior manager saying, "I care about this and it's going to be made to work," because that senior manager may not be there the next week, and the system has to work independently of the particular ebb and flow of a new administration arriving or not arriving and paying attention to something.

I have seen agencies who are unwilling to address employee issues and consequently lose the productivity sometimes of large classes of employees as the employees become disenfranchised by the inequity of the inability -- inherent in the inability to be able to get their issues addressed. We need to find ways to gather data and to deal with class action cases in a more efficient and economical way.

Agency personnel systems are, I'm sorry to admit as a former managing officer, notoriously inaccurate and unfriendly to data analyses. So in the instance of class action cases where the only way to get to some sort of a resolution or to even address the issues is to really do data runs. The amount of expense that's involved, either from the agency's standpoint or from the employee's standpoint, is un- Godly. It's not something that the Commission can necessarily address, but I think the Commission can raise the attention of OMB and others that as we look at systems that has to be a piece of what needs to be handled from an operating agency standpoint.

I've seen cases lumber along. I have seen cases that not just averaged three years but that five years after the initiation of a case I am being deposed in the last three months on cases from three agencies ago. And those haven't come anywhere near the Commission, they're still being managed within the agency process. That is an issue of the employee that is an immense expense to the agency, and it simply doesn't get to what everybody wants, which is an effective workforce and an agency that's doing the job that Congress and the President want them to perform.

Finally, I will say it: I have seen agency EEO offices populated with less than the best and the brightest. I think a real emphasis on hiring people who are trained and effective in those jobs and agencies is not something that can be left undone.

In my career, I worked on trying to help some offices do a better job at handling very, very long and large backlogs of agency cases, as well as being involved in two large class action cases that came to settlement while I was there. In one agency, we really did seek the best and brightest young attorney that we could to head the office, and then we assigned resources to seek investigative assistance, both on a contractual basis as well as not. I would urge to say that in some instances that worked very, very well, and in other instances, the for hire investigator didn't know what the merit system was, didn't know what a grade was, didn't know the basics in order to understand what it was that the answers were that were being given.

I too am a strong believer in alternative dispute resolution. I think it needs trained and qualified employees, and I think it needs to be used as early as possible. To the extent that real issues can be honestly dealt with as early as possible in the process, with all due respect, Chairman, maybe you wouldn't have as much to worry about.

The time that it takes to get to resolution and to get to EEOC makes the system worse instead of better. There are, I think, historic resource constraints at the Commission to handle the backlog that comes to it, but there are also large, large issues that ought to be dealt with in the agencies and not be something that ends up on your plate if we can help it.

And, finally, I would say that I think, notwithstanding my emphasis on being able to get to data and to get to facts, I think transparency is a huge issue in the federal personnel process, and it's not as much an EEO reg problem as it is a piece of what generates the number of cases that we all have seen, to the extent the personnel decisions are made within black boxes, and employees don't understand how someone got chosen for what appears to be a plumb special assignment or how promotions and hiring processes work. To the extent that we don't have transparent procedures, employees will feel that they can't trust the agencies and managers will not be able to be held accountable. And so to the extent that you can in some way influence that process through OPM and others, then I would also urge you to do that, because I think that trust is a huge piece of what it is, that's at the core of what this is all about. Thank you very much.

CHAIR DOMINGUEZ: Thank you very much, Ms. Sale. I appreciate your candid assessment, and thank you, more importantly, for contributing from so many years of a very illustrious career in the federal sector -- federal service coming here and sharing those experiences. Thanks. Mr. Bennett.

Joel Bennett

MR. BENNETT: Thank you. Thank you for the opportunity to speak today, both to the Commissioners and the staff who invited me. I submitted by fax last week a one-page outline of remarks and my background, so I won't spend my time talking about that.

The bottom line from my perspective as an employees' attorney is I think the system is working, I think it's important to keep the system we have but there are improvements that are needed. With respect to ADR, ADR is grossly underutilized in the federal system, from my experience in representing federal employees since 1973. When the Commission last modified its 1614 regulations and MD 110, it required agencies to have an ADR system but it left to the agencies' discretion what complaints to mediate, understandably.

My experience with virtually every major federal agency in the Washington, D.C. area, not including the Railroad Retirement Board, is that mediation is grossly underutilized. I can't say why. My experience in working with federal agencies since 1973 is that federal agencies rarely utilize cost/benefit analysis. They don't look at a complaint and say, "How much is this going to cost us to process worse case analysis, both in time and money, and how much can we resolve -- what can we resolve it for, what's the benefit of doing it that way?"

I think there are two reasons why federal agencies don't utilize cost/benefit analysis. One is what I call the OPM syndrome, OPM meaning "other people's money." It doesn't come out of any federal employees' pocket when they handle these cases, it comes out of someone else's pocket. Maybe the No Fear Act will change that, we'll see.

The other reason why they don't use cost/benefit analysis very much is the people who are working on this they're on a salary and they don't think of their time as having value. When I'm representing a federal employee, the federal employee knows what the cost is because the federal employee is paying me for my time. When I defend an employer in a private sector case, the employer knows what the cost is because the employer is paying me for my time. Even when a case is in court, no one -- a federal sector case is in court, no one on the federal sector side is paying anyone for the representation or the time spent. So that's part of the problem. If the Department of Justice billed every federal agency for defending them in court based on the salary of the assistant U.S. attorneys and the DOJ attorneys, maybe people would think differently. But that apparently is not something that's imminent. So federal agencies need to use ADR more, they need to use cost/benefit analysis.

The EEOC in its processes needs to use ADR more. I've represented employees before the Washington Field Office, the Baltimore Office, the Philadelphia Office and the New York Office. All of them have ADR programs more or less, but they don't have a mandatory mediation program. Our local courts here in the District of Columbia, the Superior Court of the District of Columbia in its Civil Division, has mandatory ADR. That means every case has to go to either mediation, early neutral evaluation, non- binding arbitration or some other ADR mechanism, and they settle somewhere between 30 to 50 percent of the civil cases doing that. The EEOC AJs have varying policies on doing mediation. Last time I requested it in the Washington Field Office they wouldn't do it unless both sides requested it, regardless of how close the parties were, which I think is a mistake.

Secondly, most AJs and offices have a policy of not requiring the settlement authority to be present personally in the meeting. They allow them to be available by telephone. That is a mistake in my experience. Having the settlement authority in the room, face to face with the AJ and the complainant facilitates settlement. Telephone is not as effective. Maybe you want to do it by telephone the first time. If it doesn't work, then require a face to face. Most settlement authority people are middle managers. Their time is no more valuable than my time or your time or the AJ's time, and in the Washington Field Office, they can't be more than a few minutes away.

Why keep this system that we have? Number one, remember Title VII was amended in 1972 to include the federal government. The original Title VII did not include the federal government in 1964. Then the Civil Service Commission promulgated regulations that provided for the hearings. Why did they do that? From my recollection, because this is about the time I started doing this type of work, it was to make the federal government a model employer, and I think the federal government should be a model employer. It gives the federal employee an opportunity to resolve a case less expensively than the court process. I represent lots of private sector employees. They don't have this opportunity, and it's a lot more expensive for them to go to court than it is for a federal employee to go through the EEOC process. From my experience, the cost going through an EEOC hearing is about one-third of the cost of going to court. That's one reason.

Number two, model employer, cheaper than court. Number three, cases settle at the EEOC level. Your own statistics show that a lot of cases settle at the EEOC AJ level. And if you had a mediation program at the OFO level, maybe cases would settle there.

Another reason to have this process is it weeds out the weaker cases that shouldn't go to court. You're doing a service for the federal judiciary; they should thank you. They don't like these cases. Now, since the Civil Rights Act of '91, we have jury trials. That changes the dynamic completely. In the last decade, I've had two cases against the FAA where I lost at the AJ level, I lost at the OFO level, and I won significant jury verdicts in court. So it gives me a chance to try out a case to see what the weaknesses are and see whether it makes sense to take the case to court. But the process isn't perfect. Because the AJ rules against the employee and OFO rules against the employee doesn't mean that a jury will rule against the employee.

Now, what can we do to improve the system? I know your resources are tight. I know Congress doesn't write you a blank check, but you need more resources in this process if it's going to be more timely. More AJs are needed. They don't get their cases decided as quickly as they should. I assume all of them are competent, conscientious people, I have no reason to believe to the contrary, but if they're taking six months to decide motions for summary judgment, three months to decide discovery motions, a year to decide a case after a hearing, which occurs sometimes from my personal experience, they need more AJs so they have a lower caseload.

D.C. and Baltimore have a problem docketing cases. Your MD 110 says an agency is supposed to supply all its files within 15 days of notice of a hearing request. They can't tie me up anymore making the hearing request because I can make it directly now, that's a plus. But they don't get their records in in 15 days, and the AJs don't get after them because the cases aren't even docketed in 15 days. And the reason I get when I inquire about it is that they don't have the support staff to docket cases. I've had cases take 60 to 90 days just to get docketed before they even get assigned to an AJ. That is unreasonable. When you file a case in court, it's docketed and assigned to a judge the day you docket it. The judge doesn't get to it immediately, but it's docketed. You have a case number, you have a judge. You need to have better resources, more cross-training and get these cases processed more quickly at the AJ level.

One other point: You have no requirement in your 1614 regulations or MD 110, to my knowledge, that the agencies maintain any database of known discriminators. The findings of discrimination are rare, less than ten percent at the AJ level, less than five percent at the agency level. Yet in a case I tried in court last week, the selectee is someone one of your AJs has found to have discriminated against an agency employee. The agency adopted that decision. This person was selected for a Grade 15 job at the FAA. He did not disclose the prior finding of discrimination. No one knew about it when he was selected for this Grade 15 job, and they had no mechanism for finding out about it, no requirement that he disclose it and he got the Grade 15 job, has been working merrily along as a known discriminator.

You need to revise your system to require agencies to maintain a database of people who have been found to have discriminated against and require them to disclose that in their application papers where KSA number one is ability to supervise and promote EEO is part of KSA number one. How can someone file an application under declaration of penalty of perjury and not disclose that he or she has been found to have discriminated against someone? And the agency has no database before they select someone to check to see if the person has. It's an outrage.

Now, I'd like to spend the rest of -- just a few seconds rebutting what Ms. Marshall had to say about repetition and de novo. No employee who's represented by a competent, experienced attorney is going to repeat anything that's in the ROI. I have cases, these last two jury trials against the FAA, I didn't take any depositions, either at the EEOC level or at the court level, because I had those affidavits from the ROI. When I send out written discovery, if the agency has already answered it, they say, "We've already answered it. It's in the ROI." At the district court level, the AUSA says, "We've already answered that. It's in the agency --." So I'm not in the business of wasting my time and my client's money. If that happens, it happens in cases where there are incompetent or inexperienced attorneys or a complainant's going pro se. No competent, experienced attorney would waste his time or his client's money doing that.

So I think the system works well, it's a plus for federal employees, but you should improve it by allocating more resources, having mandatory ADR and mandatory disclosure of database of persons who have been found to have discriminated against. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Mr. Bennett. We have a few minutes for follow-up questions. Commissioner Miller?

COMMISSIONER MILLER: Thank you. And thank you, each of you, for your perspectives and comments. They're really very, very helpful. And as we begin to unpack these different issues that are before us, I think that varying different issues sort of arise and bubble up, areas of agreement, areas of different perspectives, and that diversity of opinion is quite helpful.

As some folks know, I'm a big proponent of alternative dispute resolution. I was involved in the development of the ADR program here at the EEOC on the private sector side. One of the challenges, I think, of ADR, and this is something that I hear on the private sector side, and why some private sector employers, many private sector employers do not choose to engage in mediation, is the fact that they feel they don't have enough information available yet to go into a mediation in order to sort of appropriately value the case.

So the balance that is always trying to be sought is sort of a balance between getting the parties, both the employer and the employee, enough information so that they can appropriately value the case that they have in mediation so that they can work through the issues knowingly and competently and have a good sense of what the issues are and what the facts are there. And that sort of is relevant at what point, what stage along the way that we do ADR, and I was wondering if any of you had comments about the use and value of ADR and having enough information on the use of the investigation process, internal investigation process, the hearings process to get that information on the table?

MR. BENNETT: Well, I find it invaluable in evaluating cases to have that ROI. I never take a case to court without an ROI unless there's a statute of limitations problem or some other reason to do so. And I've handled many private sector cases, and that is a significant impediment to settlement. In fact, most private sector cases don't settle until after dispositive motions have been ruled upon and the employer is facing a jury trial in court. That's when your case has the maximum settlement value, after you've finished discovery.

COMMISSIONER MILLER: Would the same be true for settling a case, in your experience, prior to a hearing where you've got a body of evidence in front of you, sort of gearing up towards a hearing as opposed to settling prior to hearing?

MR. BENNETT: Yes. I find that many agencies don't get serious about settling a case until after their motion for decision without a hearing is denied by the AJ and they know they're facing a hearing, then they get serious about settlement.

MS. SALE: I'm going to speak without the level of expertise that Mr. Bennett or possibly Ms. Marshall have. There are absolutely cases where an agency and/or an employee have very, very different views on what's going on and where I think you need elaborate processes to get at least some degree of fact finding on the table. Those cases, in my personal experience, are the ones where an employee ultimately hires an attorney and really kind of forces the system to deliver some sort of judgment or finding.

There are hundreds, if not thousands, of cases where either in the informal part of the process or in the early parts of the process, what's really at issue is a perception, a miscommunication, a lack of understanding among two individuals, a problem that's not necessarily an EEO problem but that is a Personnel, Management or Human Resources problem where I think early intervention would really enable us systemically to not weed out cases but resolve instances saving then the more rigorous EEO reg process for those cases where there really is an honest to God grievance and dispute that meets the tests that are involved.

And I find that early dispute resolution really, I think, has helped the agencies that I've been involved in reduce their sort of numbers of cases that are going through the whole process, because you get early attention to stuff, whether or not it happens to be really at its core an EEO issue or whether EEO is the vehicle for an employee to say, "Something bad's happening to me and I need it fixed or I perceive something unfair has happened to me and I need to understand it."

I think in other cases you need some sort of investigative report in order to get to some sort of closure because you have to have a sense that everybody's got a set of facts that they can then look at and consider in their review.

COMMISSIONER MILLER: The challenge, of course, is how do you separate the weak from the chafe.

MS. SALE: Absolutely.

MS. MARSHALL: I believe ADR is a very important part of the process and should be emphasized. I also do believe that having the facts evolved in a piecemeal fashion, as they can be during the current process, will not lend itself towards an effective use of ADR. I believe you can probably strengthen the informal complaint process a little bit more and have the facts developed a little more strongly in that phase as I was suggesting a counselor that's not from the agency in which the complaint arose. That way you'll have more of an impartial person there developing the facts early on. Perhaps that will lend itself to a resolution.

But in another part of the cases that I've seen that have not been developed early on in the informal complaint process or in investigations is damages, and damages are very important from both perspectives to lead towards any type of settlement. And those are normally more fully developed right before the hearing at the AJ level before the EEOC or in the federal court process.

COMMISSIONER MILLER: If I could just ask one other quick question, broad question. One of the issues that's been laid on the table as one of the challenges of the existing process is the problem of the fox guarding the hen house problem of the agencies who have an inherent interest in the cases, doing the investigations, making the decisions, holding onto all of the information, and No Fear Act may or may not cut one way or the other depending on how you rejigger the system. I was wondering if any of you have comments on that proverbial problem?

MR. BENNETT: Well, it would be better to have an independent authority doing the investigations, but it's better than the -- the existing system is better than nothing. The employee has control over his or her statement and that's it. The employee has no control over who else the investigator speaks with, what documents the investigator collects. That's totally between the investigator and the agency whether the investigator is an agency employee or an independent contractor. But by and large, I still find the Reports of Investigation helpful. They're not always as thorough as I would like, but they still help me a great deal and lessen the cost of discovery, both at the EEOC level and at the court level. If we could wave a magic wand tomorrow and have it all done by an independent agency, fine, but I just don't see that as very practical politically to do that.

MS. SALE: I don't disagree with what Mr. Bennett has said. As a manager in an agency, I grew up with an expectation that I needed to, notwithstanding the perception, that I needed to respect and abide by a degree of independence in that investigative report for two reasons. One, I work for the accused and I wanted the system to work for the agency at large. I wanted the system to tell me where I had a problem, and I wanted to be able to know the facts as best as I could.

I was frequently -- not frequently, but several times very distressed when we were using third parties on contract to do investigations for us, because the relative quality and training of the persons who were employed by those entities was not uniformly of the same standard. Some were excellent, others -- you know, I mean remember calling and saying, "I've just been deposed by so-and-so, and we're going to get this job done, but I want you to sit down and understand who it is who's working for this company, because this person doesn't understand what I'm saying, and that shouldn't cloud their results, but it should cloud their ability to understand the case." And I don't know that there are any standards or processes really in place other than management oversight to regulate those kinds of companies.

MS. MARSHALL: The experience at my Agency is that our investigations -- we're a very small agency and we do not have any full-time agency staff that are devoted to this at all. Every one of our investigations is conducted by an outside firm. Part of the reality is the outside firm's bid on the process and try to probably win the job by having the most reasonable bid possible, and that may affect the scope of the investigation. So having an outside investigator on that basis may not be the panacea that other people may think, because the investigation may not be as thorough.

Perhaps having, similar to the counseling phase that I recommended in the formal process, if there was a pool of trained investigators that were located outside of the agencies from which the complaint arose, perhaps that could be helpful. Also, these people would be much more familiar with the federal process than the contractors that are available today, because they oftentimes I think investigate for both federal and private sector.

MS. SALE: If I can add something, Madam Chairman, just in response to that suggestion, it would be more difficult in small agency but when I worked at a large Cabinet level, and in particular when we were dealing with cases that were filed by individuals who were in management positions or mid- level supervisory positions, we would seek an investigator from a sister agency, and we had an informal exchange where we would not in fact use our own staff or our own investigators if we were doing the work inside but would go to a sister agency to have the investigation done by one of their staff and provide reciprocal support to another to in fact give all of us some assurance that there wouldn't be any undo intervention in the investigative process. So it's just an example of something that does happen.

CHAIR DOMINGUEZ: Nice help.

COMMISSIONER MILLER: Thank you.

CHAIR DOMINGUEZ: Thank you, Commissioner Miller. Commissioner Silverman?

COMMISSIONER SILVERMAN: I wasn't here when we did the 1999 revisions, and I wanted to know from those of you who have worked with them, how have those 1999 revisions to the 1614 regulations affected the process?

MR. BENNETT: Well, I work with them every day and while they've been helpful, there are several things in them that are troubling to me. And I believe it came in with -- I've been through so many EEOC regulations in the last 30 years that I can't always remember which came -- what came when and in which version of the MD 110. But as I mentioned in my written outline, I believe the sua sponte summary judgment came in at that time. It may have happened before, and that's a pet peeve of mine, and I'm not going to give up. There's no other adjudicatory system, to my knowledge, court, administrative agency, wherever, where administrative judges, on their own, say, "This is a case that should be decided by summary judgment. File motions for summary judgment." That is a very negative and destructive thing to the process, in my opinion, and I also think it's inappropriate for an impartial adjudicator to do that.

In cases that I'm involved in, there's always an attorney on the other side. The standard orders say you can file a motion for summary judgment, a decision without a hearing, by X date. So the judge doesn't need to tell the agency again, "File a motion." If the agency feels a motion is appropriate, the agency has an attorney to make that judgment. So I think that part of the latest version of the 1614 is inappropriate and, as I mentioned in my written remarks, no judge -- assuming the judges are going to continue using that, they at least should exhaust settlement efforts before they do that.

Because once they issue that, settlement is impossible, because, to my knowledge, they always issue them in cases where they think the complainant has no case which is based on the ROI, which the complainant has no control over. And when the agency sees one of these sua sponte summary judgment notices, any settlement discussions you have that have gone on thus far are out the window. And I had one case in Baltimore exactly on point where we were negotiating, we were talking settlement, the judge issued sua sponte summary judgment, the agency said, "Forget it. We're not going to negotiate with you." That was the end, and now that case is on appeal to OFO. So that part of it is inappropriate, in my opinion.

Now, something in there also deals with getting the decisions by 180 days. I can't remember whether it's in 1614 or 110 because they tend to run together in my mind, but, again, when the latest version of 1614 first came out, for a brief period of time, the AJs were getting the decisions out within 180 days of when the hearing request was received. Now it takes 60 to 90 days just to get a case docketed, and you're lucky if you even get to a hearing in 180 days, and you certainly don't get a decision within 180 days. So that part of it is unrealistic. And when an employee sees that, sees that the EEOC doesn't comply with its own regulations, it puts the system in a bad light.

COMMISSIONER SILVERMAN: Any other thoughts?

MS. SALE: I actually remember when the 180 day thing first was issued, and I remember, as a Senior Manager in an agency thinking it lit a fire to make sure that we were in fact putting some muscle behind that machine to try to enable our piece of that process to be within compliance. It was a losing proposition as I recall from the beginning, and I can imagine that over time there's the newness and the sort of -- there are no penalties for not complying, but it's probably eroded whatever impact it may have had in terms of bringing management's attention to those issues in ways that might not otherwise have existed on a regular basis.

MS. MARSHALL: I believe the effort at trying to eliminate the fragmentation of complaints and allowing the amendment of complaints has been beneficial in streamlining the process. As far as allowing agencies to dismiss cases early on, I haven't seen that as being real helpful, and it's primarily because of the delay. And I've seen agencies position to investigate the case as soon as possible, no matter what the facts are, to get them on the record while they're still fresh rather than dismissing the case, risking the EEOC administrative judge throwing out the dismissal and then being in the position of having to investigate a case maybe six months, a year or even longer down the road when witness availability may be a problem. Witnesses may have moved on, they may have retired, it may be real hard looking at the case.

COMMISSIONER SILVERMAN: I have one more question. You know, I think what we're trying to do here, obviously, is make the EEO federal sector process more employee-friendly so that employees can get their legitimate claims processed in a fair and timely way. But at the same time, we don't want to exacerbate employee abuse of the EEO system. What could we do -- obviously, our primary objective is to help employees, but we don't want to open windows. Do you have any thoughts on that?

MR. BENNETT: I don't think there's anything in the system that opens windows. You can't -- it's difficult to stop a pro se complainant from abusing the system. Someone comes into me with 34 complaints, first of all, that person doesn't even make it through the telephone screening system. Thirty-four complaints is automatic disqualification. But there are people with multiple complaints who have legitimate complaints, so you have to choose every case differently.

The agencies, in my opinion, they make it worse in some cases. For example, sometimes they let the alleged discriminating official be the settlement authority in a case. And how does the employee feel when he or she walks into a mediation and the very person the employee's accusing of discrimination is there deciding whether to settle the case? Unless you have a one-owner business or a very small company in the private sector, people would never do that; it doesn't make sense.

So I don't see the system as being one that promotes abuses or promotes frivolous complaints. At the court level, the case law is very strong against that. The recent case law on what is an adverse action has knocked out a lot of cases that used to be able to go to trial on things like lateral reassignments, other things that used to be considered adverse actions that are no longer considered adverse actions. In the D.C. circuit's decision in Brown v. Brody, a lot of cases are getting knocked out on summary judgment now because of that in this circuit and I'm sure in other circuits too. So I don't see it as being a problem from my perspective, but the other panelists may have a different perspective.

MS. SALE: I don't know the answer to your question. It was something that I worried about in more than one agency, so it wasn't just sort of case- specific to a particular environment. I always felt that if we had a stronger mediation and intervention mechanism very early on in the process, most of the agencies I worked for, the so-called counselors who were employees who were doing these other duties as assigned, whose training may or may not have been particularly well administered, I mean it's just the reality, it wasn't their principal job, that if you could sort of nip some things in the bud, maybe you would prevent this from occurring.

I don't know that you could prohibit someone from filing multiple complaints, because there are legitimate cases where people have to have a repeated opportunity to have themselves heard. But there are also, I think, cases where there is abuse and there doesn't seem to be, in my mind, either a perceived sort of authority or backbone or the capacity to deal with them early on, which is why I keep looking to, whether it's ADR or some other form of that, as an early intervention mechanism to try to get those cases before you end up with this aggravating multiplier effect that doesn't necessarily make anything better but does burden everybody's capacity to deal with substantive issues because you've got so much paperwork in the midst that that becomes all you're paying attention to, and that doesn't solve the problem.

MS. MARSHALL: The EEO system, like any other, can't be totally safeguarded from abusive individuals, but the current system really doesn't pose any cost to an individual who would continually file frivolous complaints. Perhaps costs of prior cases in the event of an individual that repeatedly files frivolous cases could be set off against any future recovery. I don't know if that would have any impact or that's something to consider. I'm sure that would not be well taken by my colleague on the private side, but there are no costs, there's nothing in the system to prevent someone filing a case every single day and requiring the agency to expend funds through the whole administrative phase, from the informal phase to, in my agency's case, hiring investigators. That is one of the most difficult issues in the process today, and I know that the prior -- the more recent regulation amendments, I believe, tried to deal with that by allowing agencies to dismiss cases early on. But as I mentioned, I don't know if that's effective at this point, and it's mostly because of perhaps there would be delays that would impede the process if the agency's decision was not correct in dismissing the case.

COMMISSIONER SILVERMAN: Thank you.

CHAIR DOMINGUEZ: Thank you, Ms. Silverman. Some of you did comment in your remarks, and I guess that's one of the harder challenges for us, how to differentiate between a true EEO complaint and, for example, a grievance. So early intake scrutiny of the allegations along with early intervention in some of these other things sound to me, and I'd like to get your reaction, that should be integral components of any revisions that we may undertake. Is that an accurate reflection, representation of your thoughts?

MS. SALE: It is. I think there are also some sort of federal system-wide problems. There is an issue of multiple bites at the apple where it's not just a question of multiple EEO complaints but that if someone works the system properly, they can go to the EEOC, they can go to the Office of the Special Counsel, they can go to collective bargaining through the grievance processes, and it's sort of a never- ending ability to re-raise issues because I think there isn't always a nice bright line between how you present something that would preclude you from going to several different courts as it were to try to get something dealt with. And I don't know how you solve that problem, but I think there is an issue out there that's probably bigger than just the EEOC.

MR. BENNETT: I would have to respectfully disagree with Ms. Sale on that. The Civil Service Reform Act of 1978 made an employee elect remedies between EEO and collective bargaining, and I believe the Postal Service is the only exception to that. So a non-Postal Service employee cannot go both EEO and collective bargaining.

With respect to the Office of Special Counsel, my understanding is they have always had a policy that if an employee had an EEO complaint pending, they would not take the case and only until after everything would be exhausted or an EEO might even look at it, and the percentage of cases where they do anything for the employee is minuscule. So I really don't think there's that problem of multiple bites at the apple, except for Postal Service employees, and apparently their lobby is so strong that no one has enacted legislation to avoid that duplication.

CHAIR DOMINGUEZ: Okay. Well, our experiences have shown, however, that there are some allegations that may go either way. It could be a grievable issue versus an EEO issue.

MR. BENNETT: The employee has to elect, and when someone comes to see me I go over with them what the pros and cons are of the EEO process versus the grievance process, especially when they have union representation where they may be able to get representation for free. So if they get the right kind of advice, they shouldn't be submitting a grievance in the EEO process.

CHAIR DOMINGUEZ: Well, I do agree. I think this is one of the bigger issues for us to figure out with your help what suggestions do you have for differentiating between cases and on what bases and how to make sure that the communications and the message really is, because not everyone has the benefit of your advice, Mr. Bennett, unfortunately.

MR. BENNETT: There are lots of other lawyers out there --

CHAIR DOMINGUEZ: Not many.

MR. BENNETT: -- who do this type of work, at least in the Washington area. But the other thing that I would have to remind you about is that cases evolve. I've had cases that I thought were very difficult cases where the chances of winning were very slim, but even back in the pre-Civil Rights Act of '91 day when all the cases were bench trials, I've had cases that I won that I didn't think I was going to win. So I view myself kind of like an investment counselor. I say to people, "This case is a high-risk investment. Do you want to go with T bills or do you want to try to find the next Microsoft," and they have to decide whether they want to make a risky investment. As long as I'm not violating Rule 11 by filing that case or pursuing that case, I'm happy to represent people on long shots as long as I've given them the opportunity to make informed consent about pursuing that. And there are cases that I win that I didn't expect to win. There are cases that I win big that I didn't expect to win big.

So it's dangerous for me as an employee advocate to screen out cases in too definitive a manner. Now, obviously, when someone's missed a statute of limitations or there's something that's truly dispositive, yes, we screen out those cases, but there are a lot of cases that are in this gray area where we take it through the process, we lose at the AJ level, we lose at the OFO level and then we win in court. So I'm reluctant to tell someone he or she doesn't have a case unless it's really, really clear. And sometimes it's the nature of the person that allows you to do that. A person comes in and you see the person face to face and you know that there's a problem there. Instead of the three-letter word, "ADR," they should be in the three-letter word, "EAP," and you try to direct them in that direction.

COMMISSIONER SILVERMAN: How can that not be more expensive for the employees to take their case with you all the way through there and then go to court than the private sector? I just have trouble --

MR. BENNETT: It's always more expensive if you lose at the EEOC and OFO level --

COMMISSIONER SILVERMAN: And then go to court.

MR. BENNETT: -- and then go to court. But if you win in court, you get back all your money for the administrative level. It's when you lose in court that it's obviously more expensive. I've gone through this -- in my career, I've gone three iterations. At first I used to take cases through the EEOC process, then I started doing them directly to court, then I went back to the EEOC process. And I explained it to a client of mine who's a Customs inspector who walks around with a gun with bullets. I said to him, "If you have a chance to hit a target, would you rather have three bullets or one bullet," and he said, "Three bullets." So he understood why I take it that way. So it's a benefit when you settle the case at the AJ level. You benefit by going that way because it's less expensive than taking it to court. You can never tell in advance where you are going to win and when it's going to settle. It's impossible to predict that.

CHAIR DOMINGUEZ: Well, again, I want to thank Mr. Bennett, Ms. Sale and Mr. Marshall for your very valuable input this morning towards advancing our deliberations in this very important subject.

Before we take a recess for lunch, I just wanted to let you know how pleased we are to announce that we've begun to completely overhaul the Federal Sector portion of www.eeoc.gov, which is the Commission's external web site. And these revisions were started in response to input that we received from many stakeholders while we were going through these dialogues and conversations. We were told that the stakeholders wanted more interactive resources and research materials to help them better understand the procedural and substantive aspects of Federal Sector EEO Law. Therefore, our Office of Federal Operations formed a working group to formulate recommendations on how to best revise the federal sector part of our web site and to swiftly implement the changes that were suggested. So we are hard at work on this endeavor, so if you visit the federal sector page of www.eeoc.gov, as of today you're going to already see some preliminary results from the efforts of this working group.

Let's take a recess for lunch, and we'll reconvene at 2 p.m.

(Whereupon, the foregoing matter went off the record for a lunch break.)

A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N

1:26 p.m.

Panel III:

CHAIR DOMINGUEZ: -- Federal Sector's EEO Complaint Processing System. We had a very full morning with a number of complainants and senior officials who have practiced from different perspectives sharing their input. And this afternoon we have an equally valuable two sets of panels, and we want to commence this afternoon's session with a panel comprised of federal government officials that are representing their respective agencies' civil rights and EEO offices. So I want to welcome all of our panel members this afternoon, and I want to, on behalf of our Commission, my fellow Commissioners, thank you for your willingness to come and share the benefit of your experiences and expertise with us.

We also have a number of invited guests and other senior officials that are participating and being here with us today, and we want to thank them for being here. Karen Lee of the Office of Information and Regulatory Affairs from the Office of Management and Budget is with us. Appreciate OMB's interest in our deliberations as well.

The first panel that we would like to welcome include Barbara Pope, Assistant Secretary for the Office of Civil Rights at the Department of State; Stephanie Webster, Director of EEO Compliance and Appeals at the United States Postal Service; Shirley Martinez, Deputy Assistant Secretary for Equal Opportunity at the Department of the Air Force Manpower and Reserve Affairs; and Dwight Lewis, Supervisory Administrative Judge at the Dallas District Office of the Equal Employment Opportunity Commission. I'd like to welcome the panelists. Please come forward, Ms. Pope and Ms. Boylin. And we have Ms. Martinez and Mr. Lewis, yes. Sorry. I recognized Ms. Webster, is it Ms. Boylin?

MS. BOYLIN: Mrs. Boylin.

CHAIR DOMINGUEZ: I'm sorry, Mrs. Boylin. Okay. Welcome. Let us start with Ms. Pope.

Barbara Pope

MS. POPE: Appreciate the opportunity to be here today. For Secretary Powell, EEO is more than just a regulatory issue; it's a leadership issue. With that in mind, Secretary Powell charged my office to develop a strategy to eliminate our backlog and improve responsiveness to employees. We believe that human capital is an important asset that this country cannot afford to squander.

As a result, we expanded our legal staff to reduce the review time of our ROIs and FADs. We reduced processing time of complaints from a high of 850 days in FY '01 to 143 days to the pre-appellate stage in '02. We reduced the average settlement costs in '01 from a high of $13,000 to approximately $402 per case. We heavily invested in mediation ADR, and we use mediation to resolve both formal and informal cases, and as a result, we have the lowest number of open cases since 1988.

We require Management to participate in mediation if the employee is interested. In addition to Management mandated to be involved, we also require a responding official and a different resolving official. So we have the person who is answering the issues, the allegations, and then we have a senior -- more senior management official who is authorized along with me to actually settle in mediation.

We've contracted out our mediation with the nationally recognized GSA-approved ADR company, Justice Center of Atlanta, and we have done what we refer to as our mediation blitzes where we have done as many as 15 cases in a week where we're doing five cases a day over three or four days. We've also contracted out, I'd say, about 95 percent of our EEO investigations. The average cost of the investigation is $3,500, and that brought down our cost of in-house investigations by 75 percent.

We've tied processing of complaints to the performance standards of our staff. We've also actively used video conferencing to do mediation, to do EEO counseling. As you're well aware, we've got employees around the world, so we don't always have resources that employees need. We have aggressively recruited counselors. We don't want the most expendable people from the staffs, we want the most respected, credible employees, and we want supervisors as well as employees who have worked their way up the process to be EEO counselors.

We established a web site with easy-to- fill online complaint forms, EEO counseling forms. We also initiated a 48-hour response e-mail system for our employees around the world that we can answer questions within 48 hours. We have developed EEO training materials and counseling handbooks that can be downloaded on our web site. We can have EEO complaints that can be electronically sent to us from around the world, and as a result we're at our lowest number.

I left up there some charts of what our numbers look like, where we've come over the last three years. We're at all-time lows for times for investigations. We're at an all-time low for open cases, 143 days for cases closed in the pre-appellate stage. We've got more cases that are open that have been filed but less cases -- or more cases investigated but less open cases, so we're doing them more efficiently, more expeditiously, and at the same time we've brought the overall costs down.

And so as a result, we've saved money, we've increased productivity, and we're well below the 180 days required for investigations. With that, I will stop --

CHAIR DOMINGUEZ: Wonderful.

MS. POPE: -- and be happy to answer any questions.

CHAIR DOMINGUEZ: Thank you. Let's do this: Let's hear from your fellow panelists and then we will have a round of questions. Thank you very much.

Ms. Boylin

MS. BOYLIN: The Postal Service thanks the Commission for the opportunity to address you, especially in this very important issue of changing the EEO complaint process. I don't have to tell you that we're one of your best customers, and it's not something we're particularly proud of. We are committed to the elimination of discrimination in the workforce, and we've found that over the years that discrimination is not the main issue in our complaint activity. Miscommunication, lack of communication, misperceptions, lack of education, these are the things that we think are causing a great many of our complaints, and we would hope that any changes to the complaint system would address these matters.

Our redress program, which is our premier ADR program, has been successful in eliminating our complaints from a high of over 14,500 in 1997 to just over 10,000 for fiscal year 2002, and this is a significant decrease, almost 30 percent. And at the same time, we have been decreasing the workload for the Commission, which I think is a very important issue to the Commission. But we have a long way to go. We have over 750,000 employees, so any program or any changes in the EEO program is certainly going to have a major impact on the Postal Service.

This year we've made additional strides in the ADR region. We have started implementing what we call Redress II, which is offering ADR at the formal stage during the investigative process. We've also entered into a joint effort with the Commission, thank you very much, what we call mandatory mediation, sending people to mediation when they've requested hearings. And we've found that this has been a very successful program even though it's not fully implemented. It will be fully implemented by the end of 2003. What we're seeing is about a 40 percent resolution rate, even with these cases that are very old. So we have a lot of positive results from ADR.

We would ask that any changes in the complaint process continue to include emphasis on ADR in what ever form that we can think of that will work. Once is not always enough for ADR, so we're hoping that you include that in any program changes that you consider.

We have some other processing concerns that we'd like to bring before the Commission, and, again, we thank you for this opportunity. One of the things that our advocates and our law department continue to find frustrating is the lack of time limits for actually getting somebody through a hearing at the administrative level. We get hearings scheduled, we get acknowledgement orders, but there's really no way to tell when that hearing is going to be held, because there are so many delays for so many different reasons. And, yes, and some of them are at the request of the agency, but many more are caused by complainants not wanting to go forward, waiting to the last minute to cancel because they don't understand what they're really getting into when they go through these administrative hearings. So we would like the Commission to think about addressing that issue.

Another thing that we've found with our many, many thousands of complaints, we do have a large number of what can only be called frivolous complaints in the sense that they're really not about Title VII violations. There's nothing in the regulations to act as a disincentive for people to file these complaints on agency time, with agency resources. And the time that's involved with our volume is incredible. So we'd like maybe to think about some way to address that issue. The abuse of the process regulation was a start, but the Commission is defining that very broadly. So maybe some clarification on that particular regulation would be helpful to agencies.

The inability of an agency to appeal a Commission decision to the federal courts, or to even get it reviewed, is another area of frustration. I know I'm almost out of time, so I want to just hit a few more. Class actions are very confusing. Our Law Department finds that judges, the administrative judges, because they're not Title III -- most of them are not Title III attorneys or judges, they are not really able to give us guidance on the certification process and the process thereafter. So we would recommend that perhaps a work group or a task force address looking at the class action regulations and taking a look at how to maybe change those.

And I'm going to skip to maybe the two most important things. We would like, if you do change these regulations, to ensure that these are the sole access to the process for federal employees and that this not open up the door to give them access to state suits or any kind of remedy through the state EEO regulations, and, finally, to protect us from punitive damages as federal agencies. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Ms. Boylin. Ms. Martinez?

Shirley Martinez

MS. MARTINEZ: I too would like to begin by thanking the EEOC for the opportunity to participate this afternoon and for their leadership initiating their review for purposes of improving the complaint process.

One major criticism of the system, I think, that we can all agree on this afternoon is that it takes too long. Any real reform proposal must include shortening the process. However, we also believe that it is important for individuals who believe they've been discriminated against to have access not only to informal resolution options such as ADR but also to an administrative investigative or adjudication process.

This is especially true for federal sector litigants who do not have the opportunity for the EEOC to champion a meritorious complaint for them in the federal courts as private sector complainants do. It is true that only a small percentage of cases result in findings of discrimination. For example, from fiscal year '99 to fiscal year '01, the Air Force closed a total of 2,592 formal EEO complaints. Of those, only 66, or 2.5 percent, resulted in a finding of discrimination. However, we do not believe that discrimination is always in the apparent, even in the investigatory stage.

We also do not believe that advising people they must file in court to adjudicate their claims is the best answer in the federal sector. Even though the process has become more litigious, most complainants do not have attorneys, and we do not believe that they should be required to obtain them in order to be heard.

We also believe that federal agencies have a higher duty to fully adjudicate allegations of discriminations than employers do in the private sector. We do not favor simply saving time over serving justice. Moreover, we caution that any reform process that promotes summary disposition of complaints without the benefit from any investigation or adjudication should encourage agencies to address and attempt to resolve complaints that while failing to state a claim of discrimination, technically, may, nevertheless, state a legitimate workplace grievance that merits corrective action.

We do not believe that it is necessary to have both an investigation and a hearing, yet we also do not believe an investigation alone is always sufficient to adjudicate the complaint. Perhaps a combination of the two processes into one hybrid procedure is an option for the agency to act on a complaint in a timely fashion. We believe there is value in providing the complainant the opportunity to hear all testimony and to cross examine witnesses.

Finally, we strongly favor the use of ADR, which has been very effective in resolving complaints. In order to continue this effectiveness, however, we believe that it must remain voluntary for both parties. Additionally, there must be sufficient time for the parties to meet, to consider resolution options and to reengage. We think that 60 days is usually sufficient but would like to have the flexibility to extend the informal process to 90 days when ADR is used as long as both parties agree to the extension and resolution is reasonably within reach.

In summary, we agree the system takes too long, shorten the process. We would like to see an informal process that includes a meaningful opportunity for ADR, which has the flexibility to run from 60 to 90 days, and a more formal process that investigates or adjudicates the complaint via perhaps a fact-finding hearing, which provides both parties the value of hearing all testimony and the cross examination of witnesses. Before a complaint is referred to federal court, we believe complainants should be afforded these two opportunities to resolve and adjudicate the complaint. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Ms. Martinez. Mr. Lewis.

Dwight Lewis

MR. LEWIS: Well, good afternoon. Like those before me, I want to thank you for this opportunity to address you all on Federal Sector reform. You know, when I heard that the Commission was interested in federal sector reform, I was delighted. I don't think there's any process designed by any agency that can't be improved, and the federal sector process is no exception. And although just a proposal, when I heard that the changes might resemble the private sector, I must admit that I was a bit concerned. It's not so much that my job was at stake, although some were actually worried about that, it was my concern because I'm convinced that there is somewhat of a mystery at the highest levels of the Commission, because we're involved in such a relatively small part of EEOC's business, and I wondered whether the real effectiveness and real value of this process will be carefully explored before we change it, whether now we accentuate the negative rather than when we had the chance to look at the positive. I want these reforms to succeed to produce a better process than the one we have, but I see the potential for the process that could be worse.

In the few minutes that I have, I wanted to emphasize a few points. The private sector and the federal sector processes were never the same because Congress knew two things: Public taxpayer money was at stake, and EEOC attorneys will never represent a federal employee. I heard that one of the major criticisms was that the process takes too long, and I've heard that this morning. That's not necessarily a systemic problem. That could be a workload problem, and at the federal sector, at least at EEOC, it could have been the result of emphasis on the private sector rather than the federal sector. And during that time, backlogs increased and processing times dramatically increased, in fact. I think that the Office of Program Operations, and particularly Jackie Bradley, have largely solved that problem recently with additional hiring in the federal sector. So within the next two years, you're going to see a dramatic decrease, at least at the Commission, in processing times and without ever implementing a single reform, your next complaints may be that the process moves too quickly rather than too slowly.

I was told that EEOC may rely upon the investigation to make findings of discrimination. No one has ever relied upon an investigation alone to make a finding of discrimination. An investigation is an effective tool to identify cases with potential merit, known as a cause finding in the private sector, but no EEOC attorney ever took a case to court based upon a cause finding. They're just not reliable enough for that. There are always additional interviews, credibility determinations and extensive depositions. Then it's reliable enough to make a finding of discrimination. The mechanics of investigation alone just are not likely to reveal the kind of in-depth understanding essential for making accurate assessments about a motive to discriminate.

I know that as an administrative judge early on, I recognized that no matter how complete the investigation, once I took a case to hearing new facts, new material facts would emerge, which were not available during the investigative stage of the process. And I tell new administrative judges that are hired into my office, and I often remind the veteran administrative judges, that they are most likely to produce an injustice when they allow themselves to be predisposed by the investigation rather than keeping an open mind while they hear the evidence at the hearing.

In the private sector, all of this happens in the courtroom. In the federal sector, the hearing simply replaces that process since there is no EEOC attorney to act on behalf of the employee. Federal employees actually get a full adjudication of their claims, and the agency gets a full review of their defenses, always without resort to federal district court with a healthy average 40 percent merit factor. And the beauty of it all is that the hearings and appeals process, while far from perfect, were perfectly designed to replace formal courtroom litigation where large judgments are paid out of public money, which create larger budget deficits.

You see in the private sector, more than 25 percent of the complaints filed end in federal litigation. In the federal sector complaint process, only 2.5 cases are ever filed in federal district court. And so the administrative process works exactly the way Congress intended. It offers federal employees a form for litigation without the necessity of an EEOC attorney, which would not be available to them anyway. And based upon the percentages that are shown by the actual cases filed in federal district court, they feel that they got their day in court without ever having to go there.

Having said all that, I know that this process needs reform. It takes too long. The chart which illustrates the federal sector process resembles a DNA strand more than it does a process for resolving discrimination complaints. There are still questions about the integrity of the process with so much agency involvement. I've even offered a rather radical proposal myself. I just hope that we don't throw the baby out with the bath water, fill the courts with new litigation and leave others with no recourse at all. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Mr. Lewis. All right. We'll proceed with questions for our panel members now. Commissioner Miller?

COMMISSIONER MILLER: Thank you very much, Madam Chair, and thank you to all four of you panelists for taking the time out to come and for your thoughtful comments and consideration. I think that you who are on the front end of your agencies, the sort of other users of the system, have a lot to contribute and a lot of value to add to our conversation and our thought regarding where we are in the federal sector process and what reforms might be necessary to improve those systems. And so I applaud your efforts and your comments.

I do have a couple of questions that I wanted to go back over, and I guess I'll start with Ms. Pope. And I appreciate the leadership of Secretary Powell at the Department of State in moving this issue high on the agenda for the Department of State. And it sounds like when you do have leadership coming from the top and a commitment of resources, as it appears Secretary Powell has committed at the Department of State, the system can work and can work effectively.

And so I guess my question to you is, is it therefore -- do you like the system as it is, do you believe that the system is able to work? Would you -- as some proposals would have it, would you eliminate an agency's investigation of complaint?

MS. POPE: No. I don't like all of the current system, but I think you can make it work. I think we've made it work. Similar to the Postal Service's experience, we have found that 80 percent of the EEO cases that were filed were communication issues. We found that --

COMMISSIONER MILLER: Which were resolved through ADR?

MS. POPE: ADR, settlement negotiation. We even mediated a couple of old cases that were five, seven years old. One case we mediated with the complainant in one part of the world and the responding official in another part of the world and the resolving official in a third part. So it was a three-way international video conference. It all came down to wanting to be heard and being valued. We even pulled back some of our cases that were on appeal at EEOC and settled those through mediation.

So what we have found is that the quicker we can get an employee and management together to talk about what the real issues are, the better the chances are that we have us settling the case. A lot of cases come in that really aren't EEO Title VII cases, but it's the only vehicle that seems to work, that gives an employee an opportunity to be heard.

And so we've worked closely with our unions. I think we're a little different because we require management to the table. In the beginning, Management was very reluctant, but what management has seen by having both the responding and resolving official at the table is that the issue really is communication between the supervisor and the employee and that a different resolving official is more objective.

COMMISSIONER MILLER: Would you eliminate the agency investigation and the ROI?

MS. POPE: No.

COMMISSIONER MILLER: You wouldn't.

MS. POPE: No, because --

COMMISSIONER MILLER: Would you eliminate the hearing process?

MS. POPE: I would change the hearing process.

COMMISSIONER MILLER: But you find the hearing process is valuable?

MS. POPE: Yes. I think it can be. I think the problem is the delay, the time involved with that. I think we've -- our settlement rate in mediation is a little higher than the national average, we're about 75 percent, but we get them working with the EEOC and mediate those. My biggest criticism is accepting everything for hearing, that there's no filter to make a decision that says the agency's done a good job, this one shouldn't be going to hearing. Our goals, since we started our new process, is that everything that goes to EEOC is either dismissed on summary judgment or summary judgment is granted or there's a finding of no discrimination.

COMMISSIONER MILLER: I want to pick up on something that Ms. Martinez had alluded to in your comments. Conceding that some grievances or many grievances, depending on your point of view, aren't discrimination, as Ms. Pope had suggested and you suggested also in your comments, how do you know that up-front? Do you need -- how do you know up-front whether something is discrimination or not or do you need an investigation? Do you have enough information to be able to walk into an ADR mediation at the very, very front end of the process and mediate a case or do you feel like you need to do some background information?

MS. MARTINEZ: There is some preliminary inquiry work that has to take place. I don't know that every case that you can use the cookie cutter in replying. However, I do know that in your intake, in the pre-complaint intake, as we know it today, you can more or less begin to gauge whether there are communication problems, and then you can begin to apply the necessary steps to try and reengage communication. And in those instances where you can, well, then other issues, as you start to talk and talk greatly with both parties, all parties, then you begin to get a flavor of what the real problem is.

COMMISSIONER MILLER: Ms. Boylin, do you have anything to add?

MS. BOYLIN: Our mediation program is transformative, so we don't use direct mediation at any part of the process. In the transformative process, the issues are not really what we're looking at at the informal stage; we're looking at the relationship. And that may sound a little bit touchy feely but it's working, because, again, we're addressing these communication issues and the miscommunication and the lack, lack of communication between managers and their employees.

But what we've found is that the Commission's ADR regulations, as enacted in 1999, where it says one or the other, if you offer ADR, you don't have to do counseling, we found that that doesn't work for us because it doesn't give us enough information. So if ADR fails, we've started just recently implementing a requirement for our counselors to go back and counsel so that they can clarify the issues and decide what they are. So that's what we needed to add to your existing ADR regulations, because, again, our volume and the types of issues we have we need to expand it a little bit.

MS. POPE: I would like to add, because from the moment an employee walks in and sits down with an EEO counselor and the counselor is their first meeting and session, the offer of mediation is on the table, and we have employees at the counseling stage, at the pre-complaint stage, in the formal stage, in the middle of an ROI. So there's about three points formally that an employee can change their mind and come to mediation. And so when we see a case that we don't necessarily think we have to wait to get to an investigation, we will try to encourage the employee to think about it.

COMMISSIONER MILLER: So you wouldn't have a problem with mandating mediation?

MS. POPE: I think taking choice out is a problem. If an employee feels that they're being put upon --

COMMISSIONER MILLER: Mandating mediation from the agency side.

MS. POPE: Oh, no. We do mandate it -- COMMISSIONER MILLER: Yes.

MS. POPE: -- from management's side; we do.

COMMISSIONER MILLER: Yes. Mr. Lewis, last brief question --

MR. LEWIS: Yes.

COMMISSIONER MILLER: -- because I don't want you to feel like you've been left out.

(Laughter.)

COMMISSIONER MILLER: And it's a broad question, and it's a bit of a softball, but avoid a laundry list of presents that you think Washington can provide. But what would you recommend for us here in Washington to help you do your job better. What do you need as an AJ?

MR. LEWIS: Well, one of the things I think we need is an additional option for eliminating those cases from the system that will bypass dismissal and bypass summary judgment just simply because the allegations are appropriate to proceed to hearing. But they just don't seem to involve the -- they seem to involve more of the Commission's resources than the issues in the case seem to suggest.

As an example, you could have an employee who was not paid $5 for a $5 parking fee as were other members of the office, and because he makes an allegation that it was because of his race or sex or on some other basis, it just meets all the criteria to proceed to hearing. We have no basis for dismissing that claim or doing anything other than proceeding to hearing on that case.

And so it sort of distracts us from the more important cases where there are significant issues like termination and failure to hire cases. And considering the limited resources that we have with the Commission, it would seem that we should direct those resources to those cases which we think are most important.

COMMISSIONER MILLER: Thank you. I'll let my colleagues --

CHAIR DOMINGUEZ: I just wanted to comment on a couple things. First of all, Assistant Secretary Pope, we all need to take a page out of Department of State's book in terms of the operation turnaround, and I just want to echo Commissioner Miller's commendation of the exceptional performance that we've witnessed right before our own eyes as of last year -- great, great job.

If there was one thing that you felt really, really, really made a difference in that phenomenal turnaround, what would that be?

MS. POPE: Leadership, leadership support. Early on, the Secretary said that whether it's EEO grievances, employees getting tied up in formal processes are unproductive time and lowers morale, so he wanted his leadership to take these serious -- allegations cases seriously and look at where we could resolve them. That didn't mean being blackmailed or giving an employee something that wasn't deserving. But where we had data feedback and miscommunication he wanted leadership addressing it.

CHAIR DOMINGUEZ: Now, you don't report directly to Secretary Powell.

MS. POPE: I do.

CHAIR DOMINGUEZ: You do report --

MS. POPE: I do report. I do report to the Secretary, but my office says that doesn't make a difference because my position has always reported to the Secretary of State. So that wasn't a change under this Secretary.

CHAIR DOMINGUEZ: I see.

MS. POPE: I think his commitment behind it -- you know, his willingness to give me the authority to mandate it. He did it by saying that he wanted them resolved. The term, "mandate," sounds pejorative, and we probably started off that way. What's happened with us, and we've been at this a little over a year now, management actually comes to us and says, "We've got an employee with an issue. We'd really like to work with the employee and we'd like to mediate this. We think there's more here than just a case."

So we've been at it a year, and I don't think our management, most of them, see it as an opportunity to solve and address and hear what the real issues are in a case and not just the formal process, because the formal process is long. And so if we can address somebody's issues in the first 30 days, that they can come in and meet with a counselor, when we can provide resources via video conferencing to a mediator if we can't get someone overseas, and we can get two people to talk, then we've improved the process.

CHAIR DOMINGUEZ: Let me ask Commissioner Silverman to pose some questions, and then I'll have a couple more questions for the rest of the panel.

COMMISSIONER SILVERMAN: I'd also like to commend the Department of State. Unfortunately, not all the federal agencies have the resolve that your leadership does. What do you think we could do here at the EEOC to get other agencies to follow suit? Are there things that we can do in our capacity or are there things that we're supposed to be doing in our process to help you out?

MS. POPE: I would think appealing to the other secretaries. A little competition is healthy. I don't mind using us an example with the other departments that says if State can do it, why can't you? I think it all is -- I think we'll agree, the majority of us, about communication. We were fortunately or not, we were in last place, and from my secretary that wasn't acceptable. And so he also felt having led, managed people, been in and out of the private sector, that there was more here that the State Department was not a racist, bigoted department, that it had to be more with the process. And he felt it was a leadership issue, and so he charged his leadership and he asked questions about what was going on. And so when I give him reports, none of the assistant secretaries, under secretaries want to be told that they were obstructionists in the process. So I think the communication and that he follows up on it, you know, he wants to know what's happening.

COMMISSIONER SILVERMAN: Almost everybody that we've heard from today has talked about the benefits of ADR. One question that I've been wondering about is is how are agencies who are fairly big structures and bureaucracies to a point able to go into a quick mediation or quick ADR if they haven't done some type of an internal investigation? Does that work in the public sector, and does it work right away the way it does in the private sector so there is no barrier there that anyone can find?

MS. POPE: It works.

COMMISSIONER SILVERMAN: Okay. And Ms. Boylin, you said that you didn't think that management should be mandated to go to arbitration, and why not?

MS. BOYLIN: I didn't say that.

CHAIR DOMINGUEZ: I think Ms. Martinez

COMMISSIONER SILVERMAN: Oh, I'm sorry. Ms. Martinez, I apologize.

MS. MARTINEZ: Only because it's been our experience that at times, you know, some of the cases may not be ripe for mediation. But in those instances where the -- usually the majority of the time they are. The complainant will come forward and in those instances I believe that where the complainant asks or agrees to participate in the ADR process, then I think that maybe in all this our office, our Management should listen carefully -- should listen to that and be encouraged unless there's some reason that would violate some other premise or some other law. But outside of that, no, definitely encourage it. But, again, optional.

There's a tendency, humanistically, I guess, or human nature being what it is, that our people will do the right things. And if you're providing your -- I'm talking about Management, first of all. A management official would have to tell us exactly why he or she shouldn't engage in mediation and then have senior leadership determine if that's acceptable or not. But, usually, you do extend the opportunity to continue and to reengage in that communication breakdown.

COMMISSIONER SILVERMAN: Because this morning we heard from people who didn't get ADR when they wanted it. And when I've been talking to government agencies, I've also heard from people who didn't get ADR, and I think that that just builds the frustration within the employees because we're all walking around talking about how great it is, and they can't even get access to it. So I just wondered if perhaps the mandate with certain reasons for an opt- out would be a better plan. That way it would happen automatically, and it wouldn't be a choice. So just something to think about.

MS. POPE: Could I add to that?

COMMISSIONER SILVERMAN: Please do.

MS. POPE: There are some cases that aren't appropriate for mediation, and the way we've addressed that at State is I am the only person who can determine a case is inappropriate. Management may have an argument, an employee may, but if I think that the case isn't appropriate because of what the person wants, and there's only, I think, in a year and a half there's probably three cases that I have said were not appropriate for mediation. Even when the employee is asking for the sky, the moon and the stars, I will go to management and say that I think it's in the best interest, because the real issue oftentimes isn't the one that's on the paper. And oftentimes we have management come back and say, "This person wants what for this reason," and I'm like, "Just trust us, go with the process and let's get it on the table and find out what the real issue is." And then they walk away saying, "You were right. You did make me to come to the table, but this was not what I thought it was about." And having a third person who's not involved in the allegations and the issues to be there to be deciding I think -- and we do that differently than most agencies, because having a third person who's listening, who's a management person, who can help resolve it.

COMMISSIONER SILVERMAN: Because this morning we heard that sometimes it's the discriminating official or the alleged discriminating official that's settling the case. Do you have rules against that type of situation?

MS. POPE: Yes. You have to have a different resolving official. The responding official is who the allegations are against, and they're there to have an opportunity to respond to what the employee is saying, but there is another management official who is there and available to hear both sides and to be able to independently without having a vested interest in trying to see if there is some common ground to resolve it.

COMMISSIONER SILVERMAN: We also heard about the counselors this morning and how we had thoughts for bringing people from outside agencies, we heard different things, and you described how the Department of State went out and looked for the right people. How did you go about doing that? Did you use your existing counselors, how did you change that program?

MS. POPE: We went to all of our Management officials around the world, because we've got embassies with counselors and we say, "We want you to relook. You don't have to have just one counselor. We want your best people. We want your most respected people because this is our first opportunity to resolve conflict. And so if you give us your best people, then we've got a better chance at resolving employee issues when they just begin." And that way our office is available to help resolve issues if it's beyond a post or an embassy or a bureau's ability. And so it's just communication. We've made ourselves very accessible so that we can figure out what are the real issues and what is it that can be resolved? I guess in so many of our cases 40, 50 percent is giving that employee an opportunity to be heard, that somebody values them and cares about what's bothering them.

COMMISSIONER SILVERMAN: Just one quick question for Mr. Lewis. Your idea about the cases that fall out of the reasons for summary judgment and dismissal but monetarily, or what have you, you think that you should still be able to somehow get rid of. How would we put parameters on that so we --

MR. LEWIS: Well, it's sort of difficult. One idea that I've heard from several people is that you change the definition of "aggrieved" and simply raise the bar in terms of what matters actually come before the Commission, depending on the amount of money. I'm not exactly sure how you would do it. That would take some work, because you don't want to -- and there are some cases, obviously, where when tied to another case they establish a stronger case of discrimination, when standing alone it may not look like much. And so there would have to be some mechanism to be sure that those cases weren't ignored.

Barring that, however, there are a lot of individual cases which take up a lot of Commission time, a lot of administrative judge time where when the remedy is provided they just didn't amount to much in terms of the resources that the Commission expended in order to resolve that issue. If we had an unlimited number of administrative judges, then we could entertain those questions, but under the circumstances, with the limited resources we have, there are cases that deserve more attention and we don't have a chance to get to those cases quickly enough because we have to deal with so many other kinds of cases.

COMMISSIONER SILVERMAN: So perhaps it is an alternative process for certain cases.

MR. LEWIS: That would probably work.

MS. BOYLIN: Maybe a fast track for things like reasonable accommodation.

COMMISSIONER SILVERMAN: Thank you, Chair Dominguez.

CHAIR DOMINGUEZ: Thank you. Ms. Boylin, as you mentioned in your remarks, we did just recently institute this Redress II jointly with the Commission. Now, what do you think would be the reasons or some good possibilities as to why a case might settle at the second stage of mediation, at the hearing stage versus the initial stage? What sense do you bring to that question based on your experiences?

MS. BOYLIN: Well, one reason is that they have additional information. At the counseling stage, they only have very limited information in front of them. At the formal stage, they've got a whole Report of Investigation, affidavits have been taken, documents have been gathered. If there is a good ROI, they can see some comparisons, and I think a lot of people become aware that they really have no disparate treatment case at that stage.

Additionally, especially at the mandatory mediation stage before the hearing, they've been addressed by an administrative judge, and a lot of our administrative judges sort of become a reality check for complainants at that stage, and they, for the first time, hear from an outside party what their burden is. It's one thing for the agency to tell them, it's another thing for somebody from the Commission to tell them what their burden is. So I think they're more open to resolution at that point than they were in certain types of cases.

There are certain types of cases that are never going to resolve until they've had a finding and an adjudication by an outside party, but in our particular experience, we've found that the additional information, perhaps some discovery and the attention of the AJ and the focus on what their burden is leads to greater resolution at that point where it did not occur earlier.

CHAIR DOMINGUEZ: The data show that even though we all believe that the hearing forum, the forum for an independent review, is a valuable one, when it comes to the hearing process itself, as we know it, few complainants use it, I mean less complainants than one would hope. And the question for all of you is why do you think that is? Why are not all complainants availing themselves of this independent process if in fact it is perceived as a first step?

MS. BOYLIN: Well, for ten years before I came to my job that I have now, I was an advocate for the Postal Service in Labor Relations in various parts of the country, and it was my experience that on the day of the hearing, especially, or after the first initial meeting with the AJ, complainants became aware what they really were going to have to do in that hearing, that there was going to be a court reporter, that they were going to have to ask questions. The vast majority of them were not represented by attorneys, they were represented either by themselves or a co-worker. A lot of times it was a union official who had never experienced the process. And my opinion is they became frightened, they became overwhelmed by the thought of going through this process, and they opted out for the FAD.

CHAIR DOMINGUEZ: Other thoughts, reactions?

MR. MARTINEZ: I'd just like to share one that I had at one of our bases that is now closed. We had just the opposite. I can tell you that all of the complainants who walked into formal complaints, all of them used every appeal right, all the way down to motion for reconsideration. And, consequently, even though it took -- one time there was a review conducted of all the cases in the appellate process, and I can tell you that to await for an EEO hearing once you get on the docket for your hearing, it took anywhere from 12 to 18 months, and even at that they would continue to exhaust and to use their right to appeal.

CHAIR DOMINGUEZ: And yet nationally, you look at the national data, it's about 25 percent, so it's really the exception.

MR. MARTINEZ: Yes, it is the exception.

CHAIR DOMINGUEZ: Too bad the base closed.

MR. MARTINEZ: Well, this base was always the exception.

MS. POPE: And I don't know but I think somewhere around 50 percent of our cases, maybe 60 percent. Maybe we've done so much to empower employees, but I think we have -- if that's what the average is, we're much higher than the average, because I just handed Carlton a list of cases that in this year have come forward to hearing, and we only have a handful that select FADs. Now, we've either resolved them through mediation or they don't like the ROI and want a hearing. So we have maybe a higher percentage than I realized of cases that actually go to hearing.

CHAIR DOMINGUEZ: A couple of final questions. Most of you have mentioned that a lot of the issues, disputes that come before the EEO process really don't have anything to do with discrimination. They're communications, bad blood, whatever the issue is. Is there any way that we can improve the system to keep it true to issues of discrimination and to try to address some of these other issues in a different -- is there anything that we can do to the system itself to make it free of these types of intrusions, if you will?

MS. BOYLIN: I think that Judge Lewis mentioned raising the bar for the definition of claim, and that's one possibility. It's easy to say but as I sit here and try to think when he said that, I was trying to think, now how would you do that? That's not going to be an easy thing to do. We talked about frivolous complaints, but to the individual there's no such thing as a frivolous complaint. So it's a nice concept, but I can't think of a way to define it. Maybe a screening process lower or a fast track for certain kinds of cases. That's the best I can do right now.

CHAIR DOMINGUEZ: Mr. Lewis, you mentioned that 2.5 percent of cases are filed in court, and you attribute that to the success of the hearings process?

MR. LEWIS: In part, yes.

CHAIR DOMINGUEZ: Okay.

MR. LEWIS: To the overall process, from start to finish, I think.

CHAIR DOMINGUEZ: Okay. Are there other issues you think why people don't file in federal court?

MR. LEWIS: Well, there are probably a number of issues: exhaustion, lack of representation would be another reason why people don't file in federal district court, which in my opinion makes the administrative process more important, because at least they get an adjudication of their claim without the requirement of going through a more complicated process. Without having looked at the issue more carefully or having a statistical basis for it, I would have to say that those are the reasons that I can think of off the top of my head.

CHAIR DOMINGUEZ: No, I was just curious because, as you know, in the private sector, we have to write "to sue" letters, and we don't know how many of the individuals to whom we issue these letters actually end up in court after going through the EEOC investigation. So it would be an interesting contrast to make.

MR. LEWIS: Yes.

CHAIR DOMINGUEZ: A lot of it has to do with cost and other factors, I'm sure, plus the emotional cost of being consumed by something like this for years.

Okay. Well, thank you very, very much, appreciate your contributions to this process.

Panel IV:

Our final panel for this meeting reflects five organizations that are representing the interests of the members and other stakeholders. We want to welcome Joceyln Frye, Director of Legal and Public Policy of the National Partnership for Women and Families, which is part of the Leadership Conference for Civil Rights; G. Jerry Shaw, General Counsel of the Senior Executive Association; Avis Sanders, representing the Tri Partite Group, the Washington Lawyers' Committee for Civil Rights and Urban Affairs and herself; Joe Henderson, Supervisory Attorney in the Fair Practices Division of the American Federation of Government Employees; and Rawle King, Legislative Director for Blacks in Government.

Welcome, thank you for coming, and we really appreciate your sharing your thoughts with us this afternoon. Let us start with Ms. Frye.

Jocelyn Frye

MS. FRYE: Thank you and good afternoon to all of you. I will echo the comments of the earlier panel, and I certainly commend the Commission for convening this important meeting. I am going to try to touch on some highlights. I submitted testimony for the record, and given the shortness of time, it probably makes more sense for me to just touch on some highlights and I'm happy to respond to any questions that you have.

I think certainly from the perspective of both the National Partnership and the Leadership Conference on Civil Rights, which is a large coalition of civil rights and labor and women's, religious organizations from across the country, I think it's important to ground this discussion in some important fundamental priorities that we think ought to be behind any sort of effort to reform the federal sector complaint process. And they're priorities that I've laid out in my testimony and I think important to reiterate here.

First of all, we think that any sort of change ought to have as a fundamental goal strengthening efforts to prevent and remedy discrimination in the federal workplace. Secondly, we want to make clear that we want to promote accountability and responsibility within agencies to uncover and correct discriminatory practices. Third, we think it's an important priority to make sure that the process for handling discrimination complaints is both fair and efficient and that one is not sacrificed for the other. And, fourth, and finally, we also want to make sure that the process for handling discrimination complaints affords employees the maximum protections to have their complaints heard in an objective forum.

In addition to that, we think that it's also important for the Commission to be informed by the reforms that have taken place over the last couple of years. The Commission has done a great deal of important work in this area in trying to look at the federal sector process. We think that any effort to reform the process ought to be informed by what has worked in the past and what hasn't worked, and we encourage the Commission to look back at the '99 reforms and the implementation of the No Fear Act to really get a sense of what has worked well and to perhaps target their efforts so that their resources are best spent.

That being said, I want to focus on two issues that we understand are before the Commission and at least speak to them in terms of our concerns about reforms that may be under consideration. First is the question of the Report of Investigation and whether or not that's a requirement that ought to stand or if it's something that could be eliminated. And I think that the short version of our view is that we think that the elimination of the ROI would seriously undermine the scope and quality of discrimination investigations that are undertaken by agencies.

We think that the ROI plays an important role for a variety of reasons. One is that it's an opportunity for the agency to investigate the complaint and to at least articulate the facts as best as they can be ascertained initially. It's an important source of information for all of the parties involved, and at least it's a starting point for ultimately, hopefully resolving the complaint. We also think that it's an important signal to agencies about their responsibility to investigate complaints fully, and we are concerned that if you eliminated that obligation entirely, that what you would end up doing is ultimately undermining the thoroughness and the quality of investigations that took place at agencies. So for a variety of reasons, we think it's an important signal on the front end that the agency bears some responsibility to investigate a complaint, and it also is an important starting point for all the parties to get a good understanding of at least the facts as they've been initially developed.

The second point that I want to raise is with respect to the administrative hearings and, again, we understand that one of the issues is whether or not that process makes sense and how effective it is and whether or not having an administrative hearing is important for an employee. And for many of the reasons that have already been touched upon, we think that it's vital that employees have an opportunity to have their complaints heard before an objective forum. It's often the only place where there can really be a full airing of all of the issues, and we think it's an important right that federal employees have come to rely on. And the reality is that there are a number of differences between federal employees and non- federal employees, and simply trying to mirror the private sector process ultimately would not afford federal employees the same rights that they currently have.

I know that my time has run short, but I'm happy to respond to any other questions. And, again, I just appreciate the opportunity to be here.

CHAIR DOMINGUEZ: Thank you, Ms. Frye. Thank you. Mr. Shaw.

G. Jerry Shaw

MR. SHAW: My name is Jerry Shaw, I'm the General Counsel of the Senior Executives Association, and I have been a government executive before and have represented the Association for a lot of years.

This reform of the EEO system in the federal government is of key importance to federal executives and managers for a number of reasons. First, it takes too long to resolve the complaints, it's too expensive in the use of staff and dollars expended, it's subject to abuse by employees who file numerous allegations with no merit, and it's especially onerous for those with valid complaints who sometimes get lost in the crush of complainants and suffer for, if nothing else, from the length of the process.

The law in the system was meant to provide redress for those discriminated against. It has in many cases become a weapon used by employees to try to keep managers from making decisions. The managers' ability to manage the federal workforce is harmed by the current process, and in nearly every decision that a manager makes that has any element of judgment in it, he is going to receive one or more EEO complaints in it, and in some cases, everybody who doesn't get a promotion files complaints.

We have a number of specific reforms. First, we think mandatory mediation for both the complainants and managers at the agency is absolutely necessary, because I think experience has shown us that it is so helpful and the results are good. We think that all mediators who are handling these should be certified by the Federal Mediation Conciliation Service. We think there's spotty training by some of the mediators and that FMCS is in the process of establishing certification processes for mediators.

Third, agencies should undertake a summary review investigation prior to or concurrent with the ADR process. Frankly, our experience with a lot of cases is report of investigations today are and have been usually of very poor quality. People, they will start out with a bias and they'll wind up with a bias and they will not, because of the limits on them usually put on them at the wrong times, are not able to get the entire story, and it just doesn't work very well. We think that the summary investigation report should define the issues, it should collect statements and documents that are important to those issues and provide this information to both parties for use in the mediation so that you're not walking into mediation with a blank slate, and at least you know, or hopefully you know what you're going to talk about.

Third, if the employee is unsuccessful at his or her agency or at the mediation process, they should have the right to appeal for a hearing by an AJ at EEOC. We think that's fundamental, and it is something that has become inculcated in the federal process. To change that, I think would be very traumatic.

We think the agency process should last no longer than 90 days. We think the process at the EEOC with the administrative hearings should not exceed 120 days. After that, the Merit System Protection Board operates under that rule, and about 98 percent of their hearings are finished and decisions issues within 120 days, and there isn't any reason EEOC can't do it, especially if we save at the resources at the agencies and give them to EEOC to staff up their AJ process.

Few cases go to federal district court because it is expensive, because it is intimidating and there is nobody other than hired counsel to take your case. You have to be pretty desperate or pretty idiotic to take a case on a contingency fee, so it's very difficult to get counsel, but it does happen.

Finally, we really don't think the EEO process should be the nanny for the federal government. I mean it should deal with EEO issues, it should not be a process by which everybody can bring their current gripe and be guaranteed this elaborate process with this expensive mediator. That's part of the personnel system, it is not part of the EEO system. We have encouraged that in the federal government because employees get these elaborate investigations free, they get all these benefits of this free, they can postpone or stop disciplinary actions, performance appraisals, reassignments and all kind of things free. There's no downside to them, there's only upside.

And besides that, now that there's damages, there's money on the table if they do get something. And it has really skewed the EEO laws and regulations to the point where it is now a weapon in the hands of employees, it's a weapon in the hands of some of their organizations, people make their living off this, and it's going to be hard to change. But let me tell you something: It is not good management in the federal government, and most agencies would heartily endorse that position. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Mr. Shaw. Ms. Sanders.

Avis Sanders

MS. SANDERS: Thank you and thank you very much for inviting me to speak today. I come with a couple of different hats. I spent 12 years at the Washington Lawyers' Committee for Civil Rights and Urban Affairs, but I come mostly wearing the hat of the Chair of a group that we call the Tri Partite Group. Tri Partite Group is made up of federal sector agency representatives, plaintiff side attorneys, individuals who represent government employees and administrative judges.

We had all been meeting separately with the Commission to discuss a variety of issues, and then interestingly managed to get together and found that we were actually in agreement on much of what we were discussing. There were, of course, some areas of disagreement, but to our surprise there were many areas where not only was there agreement but agreement that came after discussion; that is to say when we were willing to sit down and listen to the reasons why something was going on, we came out better informed. So, for example, we walked in the door saying, "We need to have everything completed in 180 days," and there was a response, "Well, here's the reason why we can't complete it in 180 days." Oh, and it turned out that response made some sense and was worth listening to.

So just as a first proposition, I recommend very, very highly sitting down together to talk about these issues, especially with groups such as these where these are the people who are on the front lines and are so well informed.

It also makes a lot of sense to me because my understanding of the whole administrative process is based on the idea that all of the people involved are really in it together; that is to say that the federal government is saying, "We as a government do not condone discrimination, we will not tolerate discrimination. If there is discrimination, we want to know about it." That's the idea behind the administrative process. We will be -- just as we expect a private employer to create some system within their own organization in order to investigate complaints of discrimination so that somebody who has a complaint doesn't just simply have to go to court, we're going to have some sort of internal investigation process, well, too, as the federal government we want to create the same kind of system, and so they did.

My understanding of the way it was supposed to work in theory was that an individual who thought they might have a claim could begin by going to counseling and talking to somebody, is this a claim, is this a race discrimination claim? Why would somebody know that if they've never had any experience with the system? They could get some clarity about what exactly those claims were. What is it that the person is alleging? And at that very first stage, they could make some attempt to get their complaint resolved. That was my understanding of how counseling was supposed to work.

Now, as we know, in many circumstances, this is not the way counseling works, but I think the idea was solid. And so, too, with the next part of the system, the investigation, my understanding was that the government was saying agencies should make every attempt to determine whether or not discrimination has taken place within their own agency; that is their job. They have an obligation to do an investigation, and it's not a cursory investigation, it's not talking to one person or just the complainant and just the supervisor but making a determination as to whether or not there are relevant documents and relevant witnesses, putting together all of that information and then again if as a result of that investigation it turns out that there is some evidence of discrimination, an attempt to resolve the complaint.

Finally, the next step of this process was that there was a hearing, and here I think we got the linchpin of the whole process because everybody knew that it was out there, that the hearing was out there. And it served two purposes. One is that it's an opportunity for the complainant, of course, to put forward their witnesses and their arguments before an unbiased, impartial judge or hearing examiner. But also very importantly, if the end result was going to be any kind of binding decision on the agency, it gave the agency an opportunity to do the same thing, to have an opportunity to question, cross examine witnesses, et cetera.

I see I'm out of time, so I am very quickly going to go to the Tri Partite's proposal. Before I do, though, one last point which is the most important aspect of this, I think, was that the government was saying, "We do not want to force our own employees to go to court. We are not going to get beyond the other side of employees until we have had this opportunity to investigate the case ourselves and try to resolve it internally." And sure enough, when you look at the statistics that Mr. Lewis, Judge Lewis had used as well, the comparison of the 2.6 percent of the claims that go before an EEOC counselor to the ones that are filed in court versus the 25 percent of cases that start off at the EEOC end up in federal district court. I think it's an important statistic. I think it shows that in the end the hearing process is doing what it's supposed to do.

Very quickly, our proposal is that in the hearing process there should be a three-track process: fast track, regular track, complex track. These three groups that make up the Tri Partite sat down together and determined that one of the big problems was that there was a cookie cutter approach to the hearing process, and it's been suggested here before that there should be a fast track. Not all cases need as much discovery as other cases. Some cases could go forward with very limited discovery, perhaps even no discovery. Simply put the witnesses on, the whole thing would take a few hours and the hearing would be completed. Regular track cases would have some discovery, some interrogatories, et cetera. And then, finally, complex cases, and this is very important, particularly given the fact that there are now consolidated cases, that administrative judges not be held to the same standards for those cases as for the fast track cases as they currently are held to the same standard and that it's taken under consideration that those cases, class actions, for example, will take more time, are more complex, perhaps need judges with more experience, and should be handled differently.

We think that by using this three track system, which they use in the court system, any court system you go into starts off with, first of all, a conversation between the judge and the complainants about the system, how it's going to work and what track they should be on. So we're suggesting that this system work the same way. Start off with communication between the judge and the parties and then a determination as to what track the case should be on and then pursue that track, not treating all cases the same.

And with that, I think -- the only other point I was going to make quickly is the difference between private sector and public sector on this as far as this hearing goes. As it was noted before, public sector, federal sector employees do not have an opportunity to have their cases -- to have taken on their behalf their case by the Department of Justice or by the EEOC. They don't have state or local human rights commissions that they can go to. This is the only process that is available to them.

And I'll take off my hat and put on my Lawyers' Committee hat, as a person who tried to get lawyers for federal government employees, I can tell you it is nearly impossible because of the limited damages available, because of the lack of punitive damages available, very few attorneys are willing to take on these cases. If they cannot go through an administrative process, they will file in court, they will file pro se, and this will be a terrible burden on the court system. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Ms. Sanders. Mr. Henderson.

Joe Henderson

MR. HENDERSON: Thank you. My name is Joe Henderson. I'm with the American Federation of Government Employees, and I thank you for the opportunity to present the more lengthy comments which I submitted to the Commission this morning and to talk briefly about the highlights this afternoon.

We're here today to talk about a system that has evolved in the 25 years I've been representing federal employees in front of agencies in the EEOC. And it's evolved substantially; in fact, even recently it evolved substantially with the '99 revisions that went into effect in the year 2000. We had some great testimony in the prior panel about agencies who have made marked improvements in their numbers. It's not just states, it's not just the Postal Service. I think we're seeing an improvement in many agencies, because the new regulations allowed them to make an improvement. And we're going to continue to see this improvement. If nothing else is done, we're going to continue to see some improvement for the next couple of years. We're going to see some OFO numbers that are going to be a marked improvement.

And we're seeing this improvement now because we had to deal with this gridlock of this backlog of cases that were stuck in the older system where there was no means for a complaint to get out of some stage -- permanent limbo. And the Commission either had no authority to sanction the parties' agency, whatever, for sticking in this stage, and then the Commission also failed to use the authority they did have. Under the new regulations it's not perfect but there's substantially more authority, so we're going to continue to see, now that this gridlock is moving behind us, some improvement in all agencies.

But we have a system that was characterized by the Supreme Court in West v. Gibson, quote, "A dispute resolution system that requires the complaining party to pursue administrative relief prior to court action, thereby encouraging quicker, less formal and less expensive resolution of disputes with the federal government and outside of court."

So why does this system encourage resolution, the system we have now? It's because of the fact that we get to a hearing eventually. We all have the opportunity to get to a hearing in front of an AJ. There would be no concept of resolution whatsoever, no case would ever be resolved short of the opportunity to a due process hearing, the opportunity to call witnesses and cross examine the other side's witnesses, put on your own exhibits. There is no party, plaintiff's representative or agency representative, plaintiff's bar or defense bar, that will rest on any investigation with any comfort level, with any degree of satisfaction whatsoever.

Not only are courts keeping out today EEOC investigation determinations from judicial litigation -- Third Circuit decision just last month, keep out the EEOC determination -- not only are courts doing that but even where the investigations are done more expansively. I think of the FAA or the NTSB investigations. Those airline disaster cases where they have millions of hours of investigations and FBI and forensic science and experts. Those determinations are kept out of the airplane disaster litigations. We're never going to have any party to an employment discrimination suit who's going to be satisfied by an EEOC investigation.

So while it's fair to ask what are the frustrations in the current process, and there are indeed frustrations, I think what we need to do is address those frustrations, and it's just unfair to conclude, it's totally unfair to conclude that the system that we now have is totally broken and needs to be junked in the place of a system that has no investigations by the agency, and I think they have an obligation to investigate, both because of Commission guidance and the Supreme Court decisions and stuff but also in the statute which requires the agency to have the prime responsibility in the statute itself, the last section, Section 17. It requires the agency to have the prime responsibility to eradicate discrimination.

And I think the Supreme Court is right in recognizing the system does work. We've heard from that about Feds going to -- federal employees going to court in less numbers than non-feds. I think we could look at the problems that have been discussed, but I'm here to tell the Commission that the hearing stage is not the problem and we shouldn't be fixing a problem that doesn't exist. And I think we can do better. I know my time is running out.

I want to say that we're willing to continue to work with the Commission as we did with the prior Chairs and the whole process of reviewing the federal sector reform to find improvements in the processing of federal sector cases. But we need to lead to a process in which all the parties accept a fair and reasonable alternative to federal court litigation. They're only going to do that if they feel their cases are resolved, and I have yet to meet a federal manager who will get that level of satisfaction, let alone a plaintiff's representative if the resolution is short of a full-blown hearing. So I thank you for the comments.

CHAIR DOMINGUEZ: Thank you, Mr. Henderson. Mr. King.

Rawle King

MR. KING: Chairwoman Dominguez and distinguished Commissioners, my name is Rawle King. I am the Legislative Director for Blacks in Government. On behalf of BIG, I would like to thank you for the opportunity to address the Commission this afternoon and thank you for convening this hearing on the EEOC's proposal for reforming the Federal Sector Discrimination Complaint Process.

Blacks in Government was organized in 1975 and incorporated as a non-profit organization under the District of Columbia jurisdiction in 1976. As a Section 501(c)(3) organization, BIG is a professional development association comprised of federal, state and local public servants in 11 regions nationwide. We represent roughly 3.2 million African Americans and other employees in the public sector. We are committed to promoting equity, excellence and opportunity and a workplace free of all discrimination and retaliation for all public sector workers.

Currently the major responsibility for processing both informal and formal complaints, including the development of investigatory factual records on which subsequent case management depends, is entrusted to individual agencies which must ensure that employees who complain of discrimination are afforded all the rights and processes provided by the applicable federal EEO laws and EEO regulations and directives.

Despite these mandates, BIG has discerned a pervasive pattern of job discrimination based on race, retaliation for opposing prohibited practices or participating in equal employment opportunity matters. We have observed administrative harassment, abuse of authority, management misconduct, improper personnel practices, corrupt legal practices and false sworn testimony by managers as a matter of routine. This situation has led us to conclude that the EEO complaint process serves the interest of the federal agencies, provides no incentive for dealing affirmatively with disparate treatment and stipulates no accountability for violating the civil rights of racial minority employees.

The Commission is now considering a proposal for reform, arguing that the federal sector EEO process could benefit from private sector innovations. It is our belief that this notion is incorrect and even fanciful. Specifically, the Commission proposes to eliminate the detailed agency investigations of federal sector EEO complaints. To eliminate federal employees' rights to hearings before administrative judges of the EEOC and allow the EEOC to dismiss complaints without an investigation. Under the EEOC proposal, agencies would provide counseling to complainants or attempt to resolve the complaints through ADR. If the complaint is not resolved, the agency will issue a notice of final action and advise the complainant of his or her rights to appeal to the EEOC or to file a lawsuit in federal district court.

These changes would represent the greatest change to federal civil service employment practices since the Civil Service Reform Act of 1978. Blacks in Government believes that this would -- these changes would be extremely damaging to federal employees. The current federal discrimination complaint process is flawed. We want to repeat that, the process is flawed, and we have complained about this for many, many years, but this system represents a more effective and fair process for employees to raise issues of discrimination than what has been proposed.

We object to the Commission's proposal for four reasons, and I will be very brief. My written testimony will elaborate. First, the aspects of the EEOC proposal abolishing complainants' rights to an administrative hearing before the EEOC would weaken the ability of federal employees to enforce their civil rights. Second, the proposal would undermine one of the provisions of the newly passed No Fear Act by taking away the incentives and opportunities of federal agencies to settle discrimination complaints at their earliest convenience.

Chairwoman, as you know, Blacks in Government was very much involved in the passage of the No Fear Act. We were invited to the White House, and we were recognized as an organization representing employees most affected, perhaps, by discrimination in the federal government. We felt that with the passage of the No Fear Act that things were going to be very good, but when we read the proposal we became very anxious about it and wanting desperately to have our voice heard. And I just want to thank you for allowing Blacks in Government to come to this hearing to put our case forward.

The third reason, however, that we object to the proposal, as it's currently stated on the table, is that removing the investigative functions from agencies and transferring it to an already overworked and understaffed EEOC would not lead to a reduction in either the number of complaints filed or the amount of time it takes to process complaints.

Fourth, and finally, the EEOC proposal would roll back the improvements obtained in the comprehensive reforms to Part 5 -- to Part 1614, rather, that grew out of the rulemaking process in late 1999. We believe that we need to take a look at how effective the revisions in 1999 have been. We've heard today that we've seen tremendous progress. My colleague from the AFGE indicated that, that we've seen substantial progress, and we need to perhaps look at those revisions and see the results.

In lieu of the proposals now on the table, Blacks in Government offers the following suggestions, and I will be very brief as my time has run out: The EEOC should sanction federal departments and agencies for not complying with EEOC timeline guidelines for processing complaints that are typically ignored by the agencies, while the complainants often have their cases dismissed for similar violations. We believe that we should be lobbying Congress to make EEO directors independent of the EEOC and/or the individual agencies, similar to statutory Inspector Generals in most departments and agencies. Make the EEOC director a statutory position reporting directly to Congress.

Alternatively, we would suggest that the EEOC enforce MD 110 provisions dealing with EEO director chain of command requirements. Simply require that agency EEO directors and civil rights officers report directly to the agency heads. Make the operation of EEO and agencies a component in managers' performance rating and appraisal. Simply promote your EEO administrative judges from GS-11 typically to GS-15. We need to attract a higher caliber of EEO personnel to handle these cases. Require mandatory mediation at EEOC hearings, make it mandatory.

Support efforts in Congress to increase funding for the EEOC Federal Sector Complaints Process. We believe that several years ago when Congress increased EEOC's budget by 30 some odd million dollars it helped in reducing the backlog of private sector complaints. We believe something similar to that can occur with respect to federal complaints.

Address the lack of consistent enforcement of EEO time frames between agencies -- I mentioned that point, and I really want to stress that. Do not institute policies that would overburden the federal -- the courts with cases that could be resolved if properly investigated and addressed at an EEOC hearing. Accept the recommendations and meet with the counsel of EEO and civil rights executives. We believe the EEO directors and civil rights executives have much to say. Blacks in Government is working very closely with that group to address issues of EEO and diversity in the federal agencies.

And, finally, the legislative branch of the government where discrimination has traditionally been rampant should be brought under EEOC for matters of employment discrimination. We believe that will require an act of Congress.

In conclusion, just 30 seconds, in conclusion, one of the first duties of the federal government is to uphold the public good and then provide security for citizens. When the government fails to safeguard its workforce from discrimination, it puts the public at risk. While there is a need to fix a flawed EEO complaint process, the current proposal will not address the bigger concerns that we have discussed -- that I have discussed here today. In fact, it might diminish protection of civil rights, encourage more blatant discrimination and cause a lessening of confidence in the EEO system. Thank you, Madam Chairwoman and Commissioners. BIG looks forward to working with you on a comprehensive Federal Sector EEO reform in the future.

CHAIR DOMINGUEZ: Thank you very much, Mr. King, and congratulations on your role to bring about the passage of the No Fear Act.

For the record, I mentioned it this morning but let me mention it this afternoon, I started off my remarks by saying that EEOC had no proposal, had no formal proposal out. This is part, as we've been meeting with a number of stakeholders, we'll continue to meet like this, and we will have a Notice for Proposed Rulemaking, which is the formal forum that will allow us then to provide a formal EEOC Commissioner-approved proposal. Until you see that, there is no such thing as a proposal out there. That is the only proposal that will come out of this Commission officially.

But I appreciate your comments very much, and notwithstanding reference to that proposal, I do believe a number of your comments are very much on point with what we're attempting to do. So thank you very much. Commissioner Miller.

COMMISSIONER MILLER: Thank you, Madam Chair. And let me just begin again by thanking you, each of you, for your comments. Your thoughtfulness on these issues is both readily apparent from your comments today and from your extended prepared testimony, and it's very, very helpful. It's particularly helpful as many of you seated at the table have been thinking about these issues concerning the federal sector for a very, very long time. As some of you have commented, you've seen the evolution over time of our federal sector process and bringing that perspective and bringing that knowledge base to us is very, very helpful and important as we begin our process of sort of thinking how we can continue to improve fairness and justice and equity in the federal sector EEO process, both for federal workers and for managers who are, too, themselves, in some instances overburdened and distracted by some of these issues.

A theme that I've been thinking about sort of underlying some of these issues, and one of the complaints or one of the issues that I've heard, about the investigations process in particular, is the problem of sort of the proverbial fox guarding the chicken house, I think is what it is, and, basically, the issue of how -- you know, that right now the federal agencies are responsible for doing the investigations, for doing the Report of Investigation, which, in a sense, is a linchpin starting point, critical starting point in the process. And I was wondering if -- we've heard a number of different comments across the board throughout the day, but many, many people feel that the agency-wide investigations are important, notwithstanding the fox guarding the chicken house issue, and I was wondering if any of you had comments or thoughts about helping us think through that problem. The alternative, of course, is to do away with the investigations and bring all of those investigations in-house to the EEOC. That is one alternative that has been sort of out there in the ether.

MS. FRYE: I'm happy to start. I think that there are a couple of responses. First of all, and you've already touched upon it, I don't think the answer to the fox guarding the hen house problem is to eliminate investigations for a variety of reasons, not the least of which is that agencies bear a very important responsibility to know what's happening in the workplace and to remedy discriminatory practices when they occur, that it's important for them on the front end to take on the responsibility of investigating any complaint that comes before them and to do a thorough job in doing so.

It seems to me that one of the points that the prior panelist touched on, I believe from the State Department, actually is instructive here, because I think in many ways it starts with leadership from the top. If people have confidence in the system, they have confidence in the people who are undertaking investigations and the overall commitment of the agency, then I think they have greater confidence in those types of investigatory reports.

Will it resolve the problem entirely? Probably not, but I think that the alternative doesn't really help us very much. Simply to eliminate the report entirely I think doesn't really solve the problem. And in the end, you want enough investment on the part of the agency so that they are committed to actually remedying problems and that people believe that there is a commitment.

MR. HENDERSON: Commissioner Miller, if I may elaborate. Again, I fully agree with Jocelyn Frye's observations. I also think that if we look back to the statute in Section 7.17 of the Civil Rights Act, which gives the Commission the authority to issue regulations, to enforce Title VII in the federal government, the very last paragraph says, "Nothing contained in this Act shall relieve any government agency or official of its or his primary responsibility to assure non-discrimination in employment."

And I think it would be ludicrous to allow the federal agencies, who would not agree, I think, giving up the investigation anyway, to not investigate the allegations of discrimination when we're requiring employers across the board to engage in interactive processes with people raising reasonable accommodation requests or to investigate other allegations of discrimination, and the statute specifically says they're going to have the primary responsibility to maintain it. So I would urge the agencies to maintain responsibility, and I would urge the Commission to work on its authority to see to it that they fulfill their responsibility effectively -- better timeframes, a triage on the kind of cases being investigated, a lot of ways to make the system work better. The State Department's made the system work better, other agencies can make it work better too.

MS. SANDERS: I might note too that I think each year something like 22,000 complaints in the federal sector. Those cases are investigated by the agencies. If the agencies didn't conduct those investigations and the EEOC were to pick that up or some other organization, that would be just a tremendous burden on whatever agency tried to undertake all of those investigations, and to the extent that we're now concerned about timeframes and about delays, I can only imagine that the delays would increase tremendously if suddenly one agency were to try to undertake the kind of investigations that are currently undertaken by the agencies in which affidavits are taken and documents are collected.

COMMISSIONER MILLER: In fact, there are 23,000 charges filed in the federal sector every year. Ms. Pope suggested that the cost of each investigation was $3,500. That comes up to $80.5 million in costs to investigate federal charges. If one agency were to undertake that, they would need a significant budget increase to do so.

MR. SHAW: Can I comment?

COMMISSIONER MILLER: Sure.

MR. SHAW: We think -- SEA thinks investigations are important, but we don't think investigations the way they're being done now are necessary. First, remember that that $3,500 per investigation was what they brought it down to that was 75 percent lower. I don't think most other agencies have accumulated those kinds of savings. One of the statements that was made here is that the primary goal and job of federal agencies and managers is to ensure a discrimination-free workplace. That's a goal, it is not the goal. The goal is carrying out the mission of their agency, and I think we have to be very careful how much resources we pour into a system which in fact hinders them, because employees have used it as a very effective tool to stop managers from making decisions where there is any hint of discretion involved.

And to propose a three-track system on hearings, I mean administrative judges are trained, they're supposedly competent and good Lord in Heaven I think they are. Why do we have to set up a three- track system when they can distinguish between more important cases or less important cases? I mean the Merit System Protection Board gets more important cases and less important cases, and they've still got a deadline, they've got a way with dealing with it. If you can't handle that, they dismiss the case and you can file it again when you're ready. And there's no reason the EEOC AJs can't do the same thing.

But we are in a system where it's not just the cost of conducting investigations, it's not just the cost of the people that are in the EEO office, it's the cost of the time and the effort that every manager has to put into dealing with this problem, which should be dealt with in a much more efficient way and what that takes away from the agencies' ability to accomplish its mission, and it's huge. I'm telling you it's huge, and part of the reason it's so huge is because people routinely file complaints, the agency routinely backs off from the manager and says, "Oh, you must have done something wrong," denies him bonuses, denies him awards, holds up promotions until after this whole mess is over with.

And, remember, we're processing 97.5 cases here in order to get to the 2.5 percent that may have some validity to them or that do have validity to them, even if we concede that. That's a heck of a burden and we have got to figure out a way to streamline this process so that federal managers can in fact manage. They don't make decisions. If they have to make a decision, they have to get a consensus from everybody because they know they're going to be under attack, they're the one that's going to be held -- and the employee has absolutely no responsibility for filing false allegations, and we've got to do something about that.

COMMISSIONER MILLER: I agree with you. I agree with you, Mr. Shaw, that the system is burdensome, but with all due respect, I do think that it is the mission of the agency and it is core to the mission of the agency to treat employees fairly, to not discriminate, to root out discrimination which has study after study after study has demonstrated is a tremendous drag on not just on the economy but on individual organizations. And to the extent that we continually hear of issues of real complaints out there, systemic issues on the part of managers and agencies, some managers and some agencies that simply don't get it, I think it's a larger problem, it's a larger issue than what you're -- than how you've characterized it.

In addition, to the extent that, yes, we live in a system in which anybody, any single individual has the ability to get a hearing in federal court by showing up and filing a case or a complaint or what have you, that's our system. Similarly, federal managers and federal agencies do, some would argue, have an incentive to drag through the system, because after all the defense of that EEO complaint is not coming out of their pocket, they're getting free legal representation. They're not having to pay for a plaintiff's lawyer to take their case on. They can grind a federal employee down into the ground, wait them out through the process and they'll still be there in the job.

So it's a difficult situation for both sides of the issue, and that's why we're here trying to figure out ways of making the system more just, making the system more fair for both managers and for agencies, but I do think that the mission of equal employment opportunity is a core mission of the federal government and in the way that managers manage.

Let me move on to another issue. Alternative dispute resolutions. Many people throughout the day have talked about ADR as a critical link -- critical process in sort of sifting through some of these cases and making the process much more effective. I would be interested, because it is my perception that ADR works, not just when it's a voluntary system in the private sector but when alternative dispute resolution mediation is exactly that, an alternative to something else. That, in my opinion, you need to have an alternative to some other concrete enforcement mechanism to bring people to the table to make them take these cases seriously. If it is just a conversation of mediation where there is no stick to balance the carrot of ADR, my sense is that mediation is difficult to achieve, parties are sometimes hard-pressed to reach resolution. I was wondering if any of the folks from any of the worker groups had any comments or thoughts on that.

MR. KING: Well, I'll be very brief, Commissioner Miller. I think ADR is a wonderful thing for a lot of the cases, EEOC cases, and I think our members can certainly avail ourselves of that. The question is making it mandatory, however, and that's the key thing there, is make it mandatory. Very often it may be a communication issue that can be resolved very easily, and we ought to look at that and ways of improving that, making sure that we have good, qualified mediators, folks that are trained in ADR. That's very, very useful.

I would like to just get back very, very briefly and just talk very, very briefly about the last question that you raised having to do with investigations and why we think that the investigations should stay within the agencies. Despite the fact that we have a time on this issue, that it takes two, three, four years sometimes to do these investigations, sometimes the quality of the reports are not where it should be, we have found, for example, that agencies are using contract employees to do these investigations who rely on these contracts within their agencies. So very often this is a source of income for them and this is their client, and their obligation is to the agency, so the question of bias, for example, in those cases.

But in cases where the facts and the truth would suggest that the employees are correct and the report is given to an EEO director, what we have found is that that EEO director may want to do the right thing, but that EEO director is reporting to someone or the head of the agency and runs into conflict of interest because, for example, the person they're reporting to may be the HR director who is responsive to managers and management. And so even if you have an investigation where you spend this $3,500, for example, or more, justice does not prevail.

We have to get to the bottom of this, and it seems to me we have a tool before us. There was an executive order signed on January 18, 2001 by the former President, Executive Order 131-97. It is an executive order that we essentially had pushed for because what we were noticing was that agencies were being given the authority to experiment with different personnel systems through the demonstration projects. We felt that this opened up some abuse with respect to the EEO complaint process.

The executive order provides a tool, workforce analysis, for example, to get at the root of what are some of the impediments within these agencies. Why are so many complaints being filed in particular agencies? What are the barriers? Workforce analysis in that tool can really be very helpful there, and I would encourage the EEOC, because they have a major role in working closely with OPM in resolving and eliminating and identifying and then eliminating these barriers.

So I'm thinking long-term now. In addition to what we're discussing here just with respect to the investigations and hearings, let's look at what's happening systemically through our government and try to reduce those barriers, because we want to look at reducing these costs. I mean we talk about $3,500 per case. We estimate in BIG that the complaint process cost is governed on the order of $4 to $6 billion per year government-wide for everything, not of just paying the claims but handling those salaries, et cetera, keeping the lights on, et cetera.

So it's a major cost to the government, and we need to look long-term at ways to reduce conflict in the workplace and to deal with the budgetary issues as well. And I believe the executive order once implemented by the EEOC OPM can give us the tools that we need to address the systemic problems that are occurring throughout the government.

COMMISSIONER MILLER: Thank you very much. Thank you to the entire panel. I have no further questions. Thank you.

CHAIR DOMINGUEZ: Thank you, Commissioner Miller. Commissioner Silverman.

COMMISSIONER SILVERMAN: Ms. Avis, I might have missed this, but who would determine what track the particular --

MS. SANDERS: The parties would make the request and discuss it with the judge, but in the end the administrative judge would make that decision. The administrative judge is still the administrative judge.

COMMISSIONER SILVERMAN: So, Mr. Shaw, wouldn't that solve your problem then, because if the judge was ultimately deciding what track it was on, then it really was within his discretion.

MR. SHAW: I just don't think it's necessary to set up systems to take away people's use of their judgment and discretion, and I think the administrative judges are perfectly qualified to do that, and it's not something that should be in any regulations.

MS. SANDERS: I guess I'll just toss in that right now I think that many administrative judges don't feel that they have -- that they can do this. And I think one of the complications here is that the administrative judges come under the supervision of district offices, and so they don't always get to make decisions the way they might otherwise make those decisions. So there is some complicating factors there that often they're told how to do discovery, and that's simply how they're -- that's it, those are how the decisions are made, and it turns into a very big deal if they want to change that at all.

COMMISSIONER SILVERMAN: Okay. You also said when you were talking about your group meeting that originally you were concerned about the amount of time it takes to do an investigation. And as you talked amongst yourselves, you had a better understanding of that?

MS. SANDERS: It was actually the time that --

COMMISSIONER SILVERMAN: The 180 days?

MS. SANDERS: The 180 days was the hearing --

COMMISSIONER SILVERMAN: Oh, the hearing part, not the investigation?

MS. SANDERS: Yes.

COMMISSIONER SILVERMAN: And how long do you think that the investigations less mediation process should take?

MS. SANDERS: Should take?

COMMISSIONER SILVERMAN: Within an agency.

MS. SANDERS: Again, I mean trying to avoid the cookie cutter approach, if you're talking about a simple case where somebody is alleging that one performance appraisal was different than somebody else's, that's a very different situation than somebody who has six promotion cases that have been put together into -- consolidated into one case. So I don't know that it's fair to the agency to always say to them, "You must do this." I think you can have guidelines and I think you could, again, make some similar determinations. In these types of cases, we expect it should take less time, and in these types we understand that it will take a little bit more time. But cases are very different and again especially because of consolidation you could end up with one investigator investigating 11 claims.

COMMISSIONER SILVERMAN: Right. Mr. King and Mr. Henderson, how do you anticipate that the No Fear Act will change the way agencies currently process discrimination complaints? What's the difference going to be?

MR. HENDERSON: To be honest with you, in the processing of discrimination complaints, I don't see that much difference. There is a reporting requirement and perhaps Congress will -- the attention to the reporting requirement is very important. But in the processing of complaints before and after No Fear, agencies were paying the cost anyway. It was the cost that was being borne by the judgment fund was in the litigation in federal court. And it is, as Mr. King has alluded to, the overall cost of processing a complaint is very expensive. It's not just the settlement but it's everything -- the payment of the investigation, the record, the personnel and so forth and so on. They're paying that price in any event, so I don't -- and, frankly, I don't see a lot of managers running away from monetary accounting situations.

COMMISSIONER SILVERMAN: Am I asking the wrong question, because I mean I've heard -- we are looking at reforming the process and we've heard that we should wait and see how the No Fear Act was going to work and that we don't -- and I just want to understand.

MR. HENDERSON: Well, to me you're asking the wrong question.

COMMISSIONER SILVERMAN: Okay. So what would the right question be?

MR. HENDERSON: It's clear to me that the proponents of the No Fear Act and Congress intended to come up with a system that encouraged more resolution administratively.

COMMISSIONER SILVERMAN: Okay.

MR. HENDERSON: That was their unanimous intent. And what they wanted to see was more administrative resolution. And I think that -- and we're all for that. And I think ADR is one way of dealing with it, and I think ADR is a great way of dealing with those cases where you had all the discussion they're called communications problems. Some people call them frivolous cases but they're often grievances being vented in the EEO process. And ADR, I think, is very effective there.

But, you know, frankly, when you have a case that puts a meritorious employment discrimination dispute on the record, somebody's lost some money, the cases that's destined for those ten percent findings from the EEOC judges, I don't find the agency ADR all that effective, it's just my experience. They've made their decision, they're going to stick to it. But I do find that the AJs-enforced ADR the day of the hearing, the day before the hearing, the assignment to a different AJ, that's where those cases are settled. They're not settled at the agency ADR level, but they're settled at the hearing ADR level, and I do think that the No Fear Act is going to encourage more of that. I don't think we attain that greater resolution by moving away from that hearing process.

MR. KING: Well, the No Fear Act law has a provision that requires the agencies to train, educate their staff on whistleblower and EEO laws. So it seems to me that through this process federal employees will be more informed about their rights, their responsibilities, and that can somehow help with the number of EEO complaints that are filed, the type of cases that are going to be filed. Also it could have an impact in that agencies will now have to post on their web sites data in terms of complaints and where it's coming from. Also, the General Accounting Office is going to have to do a report, report to Congress, regarding the types of cases and what can be done about it. I know that -- so the No Fear bill -- law does have some provisions that's going to affect the processing of EEO complaints, but it's going to take some time. It's going to take some time. That's the best answer I can give.

COMMISSIONER SILVERMAN: Mr. Shaw, when you spoke you talked about specific reforms. You mentioned mandatory mediation for both and all mediators being trained by FMCS, and I think you gave about --

MR. SHAW: Not trained by FMCS, certified by them.

COMMISSIONER SILVERMAN: Certified, okay. And then when you sort of got to the bottom of your reforms, you said but the EEO process should not be a nanny to the federal government.

MR. SHAW: Not be a what?

COMMISSIONER SILVERMAN: I think you said should not be a nanny to the federal government. Is that --

MR. SHAW: Right. Yes.

COMMISSIONER SILVERMAN: But none of your reforms really get to that issue, and I was wondering what it is that we should be doing here that would satisfy that concern on your part or is there a role we can play there?

MR. SHAW: Sure. I think you can work with the Office of Personnel Management to establish a system that handles everything but EEO complaints. And EEOC should not -- or the EEO system should not be burdened by every complaint that someone's got because they didn't -- and these are real cases -- because they didn't say hi to them when they walked through the door in the morning or they looked askance at them and they thought that it was because they didn't like them.

COMMISSIONER SILVERMAN: So what you're saying is that we are dealing with a lot of complaints that really don't have an EEO basis and nowhere else to go.

MR. SHAW: In fact most of them don't. There are advantages to using the EEO system, though. You've got possible damages, you can use the government's time to file these complaints, you've got a free counselor, you've got a free investigator, you've got all these things that makes it so attractive. But that aside, it should not become a system that takes care of every symptom in the workplace, even though it is more attractive, and those should be shuttled off to a personnel system, not to be part of the EEO system.

COMMISSIONER SILVERMAN: I just wonder when you would do that, because you've just described all these other things, and it seems like you'd have to go through all those other processes to even get there.

MR. SHAW: I think the agency ought to be able to do that at the outset. If employees want to go to mediation, then let them go to mediation and let them work it out, but you don't have to do all these investigations and do all this other stuff for non-EEO complaints.

MS. FRYE: Can I just make a point?

COMMISSIONER SILVERMAN: Sure.

MS. FRYE: I don't think anybody envisions the process as being a forum for any sort of complaint. I don't think it serves anybody's interest to have the EEO process being manipulated for any reason to have frivolous complaints. I don't think anybody disagrees with trying to make sure that people are properly educated about these are the types of complaints that are supposed to go through the process. I think that that's not really the issue here. It's really about once these complaints go forward how can we best move them forward. But I think that the concerns about frivolous complaints or people misusing the process I think should not jeopardize and in any way squander the rights of people who are trying to use the system properly. I think there are other ways to deal with those problems.

MR. SHAW: I agree 100 percent with that.

COMMISSIONER SILVERMAN: I think Ms. Sanders was next.

MS. SANDERS: I was just going to add in the Tri Partite discussions, we had interesting discussions about the use of ombudsman and using ombudsman to deal with some cases that are not EEO cases that are communication issues. So I do think there are alternatives, but they're not really for what we're talking about here. There are things to talk about and ways to think about dealing with some of these issues. And the ombudsman, I think, has worked fairly well, from what I understand, at different agencies, and it's something to really give some thought to.

COMMISSIONER SILVERMAN: Mr. King?

MR. KING: Yes. I just want to bring it full circle your question with respect to No Fear Act and bring full circle to what the issue is we're dealing with here today, which is the proposal to take investigations out of the agency and to limit the EEO hearings. We believe that those two provisions in the proposal would lead to increased litigation in the courts. It would definitely increase litigation in the courts. And it would disadvantage lower salaried employees, okay, because lower salaried employees presumably will not have the resources to get the legal help that they will need.

COMMISSIONER SILVERMAN: Mr. King, I can assure you that there's no proposal in front of me, and that's why I'm asking so many questions today. Thank you.

MR. KING: So sorry, I keep saying proposal.

CHAIR DOMINGUEZ: Thank you, Commissioner Silverman. We're running a little over. I did want to pose one question to all of the panel members, and let me echo my appreciation for your being here today. This discussion has been extremely helpful to us in our deliberations. But throughout the day, from morning till now, we've talked about the need to have greater EEOC enforcement particularly as it relates to the processing times and the delays and the years and years in time that it takes to get an investigation completed, regardless of the complexity of the complaint.

What in your estimation would make for a good set of incentives, if you will, from the Commission's perspective to work closely with our sister agencies in ensuring that there's greater abidance to these time requirements? Mr. King, would you like to start?

MR. KING: Yes, certainly. The '78 Civil Service Reform Act clearly differentiates the duties and responsibilities of OPM and the EEOC. The EEOC is to work very closely with OPM in identifying problems in the workplace that would hinder affirmative employment EEO matters. So I believe that, as I mentioned earlier, there is a tool -- and it's the law to require the EEOC to work closely with OPM to remove those barriers through a careful analysis of the workforce.

This issue becomes real important, the role that you're playing becomes real important for two reasons. One I mentioned earlier, which is the movement towards experimenting with different personnel systems, and that has come as a result of the human capital crisis issue. In the 1990s, as you all know there was massive downsizing in the government. The downsizing was fairly arbitrary, and what has happened is there's a brain drain in the federal government. And so the agencies are not able to accomplish their overall mission and objectives. OMB and OPM recognize the problem, and they are attempting to do something about it.

So your role as a Commission in making sure that the '64 Act, as amended in '72, continues to be fully implemented. And I think that perhaps the Commission will want to continue to work very, very closely with OPM at this moment, because there are so much changes occurring right now in the federal government with Homeland Security, for example, with attempts to put management flexibility initiatives in place, the present management objectives.

So the role of EEOC, we believe, is really important, and we need to take a look at that executive order. I know politically it's not good to talk about an executive order signed in another administration, but in so many ways we're living off an executive order signed 20 plus years ago, so it doesn't matter who was in office as long as we were doing the right thing, and we believe that the '64 Civil Rights Act, as amended, is still very relevant. And there are folks that are, as you all know at the EEOC, are attempting to say, perhaps the '64 Act in the EEOC is not relevant. And I would like to say right now that it is and that we need to increase the cooperation between OPM and the EEOC as well as MSPB.

CHAIR DOMINGUEZ: Thank you.

MR. HENDERSON: Thank you. Currently, 1614, in the hearing part of that regulation, provides the AJs with extensive authority, sanctions authority. The problem we're dealing with here is we have agencies -- if we're just referring about the agency abuse here, we have agencies who have developed bad habits. They can correct these habits, as the State Department has done, as the VA has done to a great extent. A lot of agencies have addressed their history of taking too long on investigations. We all agree that if these cases present, what's the representation, so many of them are frivolous or whatever, then they don't need to be reaching 180 day timeframe to investigate those cases if they're not presenting that kind of facts. Those could be wrapped up 30, 60 days.

The problem is getting those breaches before an AJ. Currently, the AJ won't know about these breaches unless the complainant elevates the case. And it would be helpful if we had a way to get to somebody in the Commission during this investigation period. What do you do when the 180 days or up? Or let's say you amend the regulations and you try to tighten it down to 120 days and you put goals for cases to get done in less than that. How do we get word to the AJ or to somebody at OFO to get the authority? The authority is there, we just can't access that authority because we're not at the table. We're not at the table with the AJ when these breaches are taking place.

But where administrative judges have begun to exercise their sanction authority when they eventually get the case, they are sanctioning agencies by ruling against them on the merits in the most egregious cases or sending the cases out to counsel to do discovery and get the attorney fees for that, and I think agencies are learning to break their bad habits, which is why I think we're beginning to see this turnaround in this case processing. I think it's going to take some AJs throughout the country to clamp down. We've suggested for years AJs should be assigned to agencies perhaps, learn to deal with the agency bad habits and they would correct those bad habits, as habits have been corrected at agencies who have testified here today.

MS. SANDERS: You know, if you're a complainant, you don't get to miss a deadline by a day, let alone by a month or by six months or by a year. Agencies routinely will miss their deadlines by that amount of time and suffer no consequences as a result. The administrative judges can do all sorts of things once it gets there if somebody requests a hearing. They can make the agency pay for discovery, for example, and I should say here I'm speaking with my Lawyers' Committee hat on, not my Tri Partite hat, just to be clear.

The other thing is to implement relief. Very often there are cases in which the agencies simply refuse to implement relief, and it is up to the EEOC to just ensure that they do. I think that there's a tremendous amount that the EEOC could be doing.

One other issue that's out there in terms of accountability is the issue of naming discriminators in the decision after -- it's an issue that's out there, and I think, again, the EEOC can take some responsibility for how this information is made public.

MR. SHAW: We would strongly object to that unless the ADO is a party to the hearing, has the right to examine and cross examine witnesses and has the right to argue their own case. That is not the case now. The ADO is represented by the agency. The agency can bail on them, and they can be made a scapegoat, and we would violently fight any of this stuff about we want to hold Joe because we want to get back at Joe, and I don't think that's a laudable goal at all.

MS. FRYE: Well, I will echo the comments that Avis Sanders and Joe Henderson made earlier about the process. The only thing that I would add is I think one of the things that the EEOC could do is to encourage agencies to sort of adhere to timelines. In some ways, to reiterate the message that we heard on the prior panel, there are examples of agencies that have done a very good job, and it seems to me that one of the strongest motivations for an agency to try to really make sure that the process works well is looking at a place like the State Department that has seen such an extraordinary turnaround, because I suspect that no agency really likes having sort of a huge backlog of cases.

So I think that just looking at that story and what they've been able to accomplish I think sends a strong incentive. And then I would encourage greater education about the different options that are out there. Harking back to the point that Commissioner Miller was raising earlier about ADR, that is an effective tool, it's a complementary tool, along with some other processes, and I think people being clear about the benefits of all these different aspects of the process could go a long way towards making those incentives real, but I also agree with the points earlier about holding people fast to those timelines and using the authority where it's available to do so.

CHAIR DOMINGUEZ: Believe us, we've tried to instill some peer pressure and competitive pressure by bragging about the State Department every chance we get, because they have done a very good job.

COMMISSIONER MILLER: The Postal Service has done a very good job too.

CHAIR DOMINGUEZ: And the Postal Service has done too. Their Redress II Program is something that we're waiting to see the results of and highly encouraged by that next step.

Well, we've run out of time, and we could go on and on, so much to talk about. But, again, I want to thank all of our panel members, distinguished panel members: Ms. Frye, Mr. Shaw, Ms. Sanders, Mr. Henderson and Mr. King. And there being no further business, do I hear a motion to adjourn?

(No response.)

COMMISSIONER MILLER: I just like you all so much. (Laughter.) I move we adjourn the meeting.

CHAIR DOMINGUEZ: Is there a second?

COMMISSIONER SILVERMAN: I second.

CHAIR DOMINGUEZ: All in favor? (Chorus of ayes.)

CHAIR DOMINGUEZ: Opposed? The ayes have it, the motion is carried, the meeting is adjourned.

(Whereupon, the Commission meeting was adjourned.)

This page was last modified on December 13, 2002.

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Commission Meeting on Federal Sector Reform - November 12, 2002 - Transcript

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