Attaining a Model Agency Program: Efficiency

The U.S. Equal Employment Opportunity Commission

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Table of Contents

Introduction

Background

Maintenance of an Efficient Complaint Resolution Process

Counseling Stage

Dismissal/Acceptance Stage

Investigation Stage

Final Agency Actions

Effective Complaints Tracking and Monitoring System

Conclusion

INTRODUCTION

The United States Equal Employment Opportunity Commission's (EEOC) Management Directive 715 (MD-715) is the first directive issued by EEOC that identifies the Essential Elements for structuring model equal employment opportunity (EEO) programs. Attainment of a model EEO program provides an agency with the necessary foundation for achieving a discrimination-free work environment.

A discrimination-free work environment, characterized by an atmosphere of inclusion and free and open competition for employment opportunities, is the ultimate goal of MD-715 and the federal government. MD-715 provides a roadmap for creating effective EEO programs for all federal employees as required by Title VII, as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.

There are six Essential Elements for maintaining model Title VII and Rehabilitation Act programs. They are as follows:

• Demonstrated commitment from agency leadership
• Integration of EEO into the agency's strategic mission
• Management and program accountability
• Proactive prevention of unlawful discrimination
• Efficiency
• Responsiveness and legal compliance

Each of these Essential Elements is thoroughly discussed in MD-715. In this report, the Commission focuses on complaint processing aspects of the Essential Element of "Efficiency."

As set forth in greater detail in MD-715, to achieve the Essential Element of Efficiency in complaints processing, agencies must, among other things, maintain a fair and impartial complaint resolution process which is conducted expeditiously with the necessary resources. By recognizing practices which the identified agencies believe help achieve this goal and sharing with other federal agencies the information learned, EEOC seeks to improve EEO programs throughout the federal government and to further the goal that the federal government becomes a model employer.

BACKGROUND

In its regulations, EEOC has identified timeliness benchmarks for some operations of the administrative complaints process. These benchmarks require agencies to complete the operations in as short a time as possible: 30 to 90 days to timely conduct and conclude EEO counseling (29 C.F.R. § 1614.105) and 180 days to conduct and conclude an investigation (29 C.F.R. § 1614.108). The acceptance and dismissal of complaints (29 C.F.R. § 1614.107) has no specific regulatory benchmark, but needs to be performed in as short a time frame as possible in order to meet the investigative deadline. Finally, regulations require that final agency actions that do not follow a decision by an administrative judge be issued within 60 days of receiving notification from complainant that s/he is requesting an immediate decision from the agency or from the end of the period for complainant to request a hearing when no response has been received from complainant.⁽¹⁾ 29 C.F.R. § 1614.110(b).

From agency data contained in EEOC's fiscal year 2003 Annual Report on the Federal Workforce, EEOC examined data for 95 agencies⁽²⁾ to determine the extent to which they demonstrated timeliness in the way they performed complaint processing activities. EEOC also sought to determine if there were any commonalities or differences in how they performed their complaint processing activities based on the size of the agency, and focused the inquiry on size as follows:

From this list, EEOC identified agencies of varying sizes who produced results in short time frames in one or more factors (EEO counseling, dismissals, investigations and final actions)⁽³⁾ and interviewed the appropriate agency officials to learn how the agencies achieved their success.⁽⁴⁾ Based on these interviews, we report our survey results about case management in counseling, dismissals, investigations and final agency actions. Although agencies identified many practices which led to their success in the timely processing of EEO complaints, we learned that one trend was common to all areas of complaints processing for most agencies: vigilant management controls which focused on ensuring progress at each step of the complaints process led to shorter processing times.

MAINTENANCE OF AN EFFICIENT COMPLAINT RESOLUTION PROCESS

COUNSELING STAGE

Pursuant to 29 C.F.R. § § 1614.105(d) and (e), an EEO Counselor must conclude counseling within 30 days of the date the aggrieved person contacted the EEO Office to request counseling, unless the aggrieved person agrees to a longer counseling period or chooses ADR. Under no circumstances may counseling extend beyond 90-days.

In measuring success in timely counseling, we looked to whether an agency met the 30- day and 90-day standard, recognizing that the 30-day time-frame could be exceeded at the complainant's request, and thus the agency could not always control its ability to meet the 30-day time frame.⁽⁵⁾

• Performance-Based Accountability and Commitment to Early Resolution of Disputes Produced Results

  Some agencies asserted they achieved success in completing timely EEO counseling by instituting performance-based accountability measures and receiving a strong commitment from the agency head and senior management to alternative resolution of disputes during the counseling stage. For example, the Smithsonian Institution (Smithsonian), which completed 97% of its counseling within the regulatory time frames in 2003, reported several factors that accounted for its success in this area:

  • First, a timeliness requirement was written into the EEO office performance goals. Office goals required meeting the regulatory 30- and 90-day limits. The counselors reported that this timeliness element helped them stay focused on time-frames.
  • Second, the Secretary embraced early complaint resolution and devoted resources to the early resolution of all employment-based complaints. As a result, Smithsonian reported that it was able to significantly increase the percentage of EEO counseling contacts that did not result in the filing of a formal complaint from 30% in FY 2002 to 50% in FY 2003.
  • Third, Smithsonian reported that non-EEO related workplace controversies were diverted to an Ombuds office, which worked cooperatively with the EEO office to resolve these controversies before they resulted in EEO counseling pursuant to 29 C.F.R. § 1614.105.
  • Finally, Smithsonian pointed to its efforts to communicate equality of opportunity throughout the agency, noting that it had in place updated diversity and anti-harassment policies signed by the Secretary; introduced the concept of non-discrimination and equality of employment opportunity at all new-employee orientation classes; provided all new supervisors with two days of EEO training; and required all employees to take an anti-harassment course once every three years.

  The Department of State (State) consistently reported, from 2001 to 2003, that the percentage of its workforce seeking counseling was below the national average.⁽⁶⁾ State attributed this success to its Secretary's commitment to EEO. Dedication of resources to the agency's EEO office provided for early intervention through ADR, and also included an Ombud's program, which allowed non-EEO related workplace controversies to be diverted from the EEO counseling system. State reported that 90% of referrals to the Ombud's office were successfully resolved.

Additional techniques implemented by State to improve counseling included the following:

• State's collateral duty EEO counselors reported to a single manager whose performance plan included a timeliness component. Accordingly, that manager had an incentive to ensure that each counselor made every effort to comply with the statutory requirement.
• State implemented a "three strikes and you're out" policy, where a collateral duty counselor who turned in a tardy or inferior work product three times had his/her collateral duties terminated.
• State required that its volunteer EEO counselors be contributing members of the work force, respected by colleagues and experienced in the program where they worked. This effort was expected to enhance the agency's ability to ensure that competent staff assumed EEO counselor collateral duties.


• Recognition of Good Performance For Collateral Duty Counselors Can Help Motivate Staff

  The Defense Finance and Accounting Service (DFAS), which uses collateral duty EEO counselors reported that it placed value on recognizing good performance in that function. Because the EEO office had no direct input into the performance appraisals of its collateral duty counselors, it had to devise an alternative way to reward and reinforce the counselors' good performance. DFAS did this by rewarding the counselors with on-the-spot cash awards, letters to supervisors, luncheon events and awards presentations. In 2001, DFAS completed 91% counselings in 90 days; by 2003, DFAS completed 97% of its counselings in 90 days, despite a 44% increase in the number of counselings conducted in 2003.

DISMISSAL/ACCEPTANCE STAGE

After receipt of the EEO Counselor's report, an agency should either accept or dismiss a complaint within a reasonable amount of time. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614. (EEO MD-110), Ch. 5, at 5-1 (Nov. 9, 1999). An investigation following acceptance must be completed within 180 days of the filing of the complaint. Clearly, the sooner the accept/dismiss decision is made, the sooner the investigation can begin.

• Timeliness Requirements in Staff Performance Plans Produced Quicker Decisions to Accept/Dismiss a Complaint

  Smithsonian, State and Department of Veterans Affairs (VA) reported imposition of time elements in EEO professionals' performance plans, and believed that this kept staff focused on the goal.⁽⁷⁾ Smithsonian and State showed dramatic improvements from 2001 to 2003 in timely processing dismissals: in 2001, State dismissed 13 complaints in 344 days; by 2003, State dismissed 35 complaints in 86 days. Similarly, in 2001, Smithsonian dismissed 6 complaints in 346 days, and by 2003, it dismissed 4 complaints in 54 days. The VA's achievements in this area pre-dated 2001. From 2001 to 2003, VA consistently issued the bulk of its dismissal determinations in record time:

  2001: 569 complaints dismissed in 66 days;
  2002: 449 complaints dismissed in 54 days;
  2003: 429 complaints dismissed in 82 days.

  In addition, six agencies reported agency goals of accepting/dismissing a complaint within a short time frame:

  10 days for Department of Transportation (DOT);
  15 days for National Aeronautics and Space Administration (NASA), Department of the Air Force, and Department of the Army; 30 days for Tennessee Valley Authority (TVA); and
  45 days for Department of the Treasury (Treasury).

  Each of these agencies dramatically improved processing time for dismissals from 2001 to 2003:

  	2001		2002		2003
  	# Dismissals	Avg. Days	# Dismissals	Avg. Days	# Dismissals	Avg. Days
  DOT	254	218	148	131	106	107
  NASA	4	356	11	221	17	200
  Air Force	121	276	86	224	77	136
  Army	156	206	251	122	145	74
  TVA	7	283	7	225	15	154
  Treasury	377	190	337	127	272	120



• Emphasis on Legal Sufficiency of Decision Enhanced Affirmance Rate

  State reported two major reasons for a greatly improved processing time in accepting/dismissing complaints. In addition to imposing time elements in its EEO professionals' performance plans, this agency has full-time attorneys among its staff in the civil rights office to review all formal complaints for acceptance/dismissal and to write all dismissal decisions, and it provided EEOC case law in its analyses to support its dismissal decisions. As a result of these two actions, the agency saw a decrease in EEOC reversals of dismissals on appeal, from a 56% reversal rate in 1999 to 34% in 2003. State believes that its provision of sound legal advice enhanced its ability to produce an accurate product.

INVESTIGATION STAGE

Long investigative delays may impede the primary goal of the investigative process: to gather sufficient evidence to permit a determination of whether unlawful discrimination occurred. Such delays can also result in stale witness memories or lost documents.

EEOC regulation 29 C.F.R. § 1614.106(e)(2) requires agencies to conduct an investigation and issue a report to the complainant within 180 days of the filing of the complaint unless the parties agree in writing to extend the time period. If the parties agree to an extension, they can extend the investigative period by not more than an additional 90 days, to a maximum of 270 days to complete the investigation.

An amended or consolidated complaint can also add 180 days onto the processing of a complaint. In no event can an investigation continue beyond 360 days.⁽⁸⁾ 29 C.F.R. § 1614.106(e)(2).

The agency may also extend the time period or any period of extension for up to 30 days to sanitize a complaint file containing information classified pursuant to Executive Order No. 12356, or successor orders, in the interest of national defense or foreign policy. 29 C.F.R. § 1614.108(e).

The agencies in this survey largely used contract investigators. The 2003 Annual Report shows that 12 agencies conducted no investigations; 56 agencies used only contract investigators; 27 agencies (including the U.S. Postal Service) either investigated with their own staff or used a combination of in-house staff and contractors.

EEOC has identified several factors which it has found impact the quality and timeliness of EEO investigations. For each of the agencies identified below, investigations were either sharply reduced in average time from 2001 to 2003, or consistently averaged fewer than 180 days from 2001 - 2003:

• Timely Contract Procurement Hastened the Start of the Investigation

  A common problem which resulted in extended investigation times involved delays in the procurement stage for contract investigators. Among those agencies with success in conducting timely investigations, some the Federal Communications Commission (FCC), General Services Administration (GSA), the National Gallery of Art (NGA) and Smithsonian awarded contracts on a case-by-case basis, and usually within five days of acceptance of the complaint. The Department of Health and Human Services (HHS) and TVA benefitted from executing blanket purchase agreements (one agreement provided for many investigations at a set rate).

• Short Time Frames in Contracts Lead to Quicker Investigations

  Ten agencies DFAS, FCC, GSA, HHS, National Archives and Records Administration (NARA), NASA, NGA, Smithsonian, State and TVA reported that their contract terms required a short turn-around for delivery of the report of investigation, ranging from 45 days to 120 days of assignment receipt.

  Additionally, complaints managers at NARA, Smithsonian, State and TVA had timeliness elements included in their performance plans for delivery of the completed investigation.

• Agency Complaints Manager Involvement Essential to Vendor Performance

  Some agencies (FCC, GSA, NGA, and State) laid the groundwork for the investigator by obtaining documents and calling employees to notify them that they would be interviewed by the investigator. Others (GSA and Smithsonian) required weekly status reports from investigators, including submission of an investigative plan and all investigative questions, along with a list of witness contacts and document requests. Coordination of these activities by the complaints manager, and constant monitoring of the vendor's progress helped the agency to produce a timely, quality work product.

• Incentives/Penalties Motivate Vendors to Perform

  Some agencies reported including penalty provisions in contract terms providing that the vendor would not earn as much if the investigation was untimely. One agency (HHS) applied an "interruption schedule" to contracts, to account for complainants who would amend or withdraw their complaints.

  This "interruption schedule" allowed the agency to account for the newly created or suddenly diminished work for the investigator without executing another contract. If a complaint was amended before the investigator completed the complainant's affidavit, the agency would pay an additional 15% on the contract, to account for the additional work the investigator would have to do to collect information on the amended claim. If a complaint was amended at a point beyond completion of the complainant's affidavit, the agency would pay an additional 60% to account for the additional work, and if the investigation was completed, but not yet copied or delivered, the agency would pay an additional 90% to account for the additional work to investigate the amended claim.

  A similar schedule applied to withdrawals: if a complainant withdrew a complaint after the investigator completed the complainant's affidavit but before other work was completed, the agency would pay 15% of the contract. If the complainant withdrew the complaint beyond completion of the complainant's affidavit but before completion of the investigation, the agency paid 60% of the contract, and if the complainant withdrew the complaint after the investigation was completed but before copying and delivery was completed, the agency paid 90% of the contract.

• Fees-for-Services Motivate Better Behavior By Program Managers

  A number of agencies (DFAS, GSA, NARA and Smithsonian) had a fee-for- service arrangement with the program offices from which the complaint arose. This arrangement allowed the EEO office to charge the cost of the investigation back to the program office. Three agencies (GSA, NARA, and Smithsonian) reported that, in their experience, this arrangement motivated the managers in the various program offices to think about their actions before they acted, and provided them an incentive to resolve matters early in the process before costs increased. State reported that while the EEO office absorbed the cost of the investigation, it charged the cost of a settlement or award to the program office where the complaint arose. By doing so, managers were able to see that settlement costs were low when compared with costs awarded by EEOC; this provided additional incentive for settlement.

• Timely Legal Sufficiency Reviews Help Ensure A Quality Work Product

  All agencies reported that they reviewed investigations for the quality of the work product. FCC, GSA, HHS, NARA, NGA, Smithsonian, and TVA expected a 5-day turn-around on a rejected work product. DFAS and NASA gave the investigator up to 15 days to return a completed work product.

  HHS did not pay the invoice until the investigation was completed satisfactorily, and State had its own legal staff in the EEO office to review, among other things, the quality of contractor work-product. GSA worked with an individual from its Office of General Counsel who was dedicated to the EEO Office as a "firewall counsel." This individual provided advice to GSA's EEO Office independent of the Office of General Counsel, and did not take an advocacy position on behalf of the agency.

FINAL AGENCY ACTIONS

For a complaint which has not been amended, where the parties do not participate in alternative dispute resolution (ADR), and which does not go to hearing, the shortest amount of time for processing to final agency action would be approximately 270 days:

• Short Time Frames Produced Quick Results

  Agencies in our survey which produced timely final decisions reported that they used a combination of in-house staff and contract workers to produce the final decisions. For example, DoDEA (15 final decisions issued within an average of 193 days of the regulatory trigger) divided the writing work between employees and contractors, and had check-writing authority for amounts under $2500. As a result, DoDEA was able to quickly contract with a vendor when necessary. The terms of the contract were 30 days.

• One-Stop Shopping For Investigations and Final Decisions Produced Quick Results

  FCC (10 final decisions issued within an average of 82 days of the regulatory trigger) reported that the same contractor who investigated the complaint also wrote a draft of the final decision. FCC routinely paid investigators an extra 16% of the contract to draft a final decision which was then delivered along with the report of investigation. If the complainant requested a hearing, the final decision was not used, but if the complainant requested a final decision, then after review and consideration by appropriate staff within the agency, the agency could issue the final decision quickly.

• Eliminating Backlog Key to Improved Average Processing Times

  Several agencies reported that their success in eliminating the backlog was key to producing timely decisions. These agencies focused their resources on backlog projects, and once the very oldest cases were cleared from the docket, average processing times reduced dramatically.

EFFECTIVE COMPLAINTS TRACKING AND MONITORING SYSTEM

Under 29 C.F.R. § 1614.602(a), federal agencies have an obligation to report to EEOC information concerning pre-complaint counseling and the status, processing, and disposition of complaints at such times and in such manner as EEOC prescribes. The Commission has mandated that agencies report to the EEOC all data relating to the EEO process in their Annual Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints (the "462 Report").

As such, it is essential that agencies have a case tracking system to capture data for the 462 Report. Moreover, EEOC has found that an accurate, accessible, verifiable and comprehensive case tracking system is essential for managing an effective and timely program complaint processing program.

Development of internal time frames for each step of the complaint process and regular monitoring of them for compliance reduces complaint processing times. The lack of an effective and accurate data collection system increases complaint processing time, impairs management's ability to identify and correct deficiencies in complaint processing, and obscures the actual work load of the EEO staff.

Almost all agencies reviewed in this study used a complaints tracking system. Some used elementary data bases such as spread sheets (DoDEA, FCC, NGA, TVA, and Treasury), one built its own data bases (Smithsonian), and some contracted with vendors to produce custom EEO complaint tracking systems with pull-down menus (Air Force, Army, DFAS, NARA, and NASA).

Several were in the process of acquiring more efficient tracking systems (Air Force, DFAS, NASA, DOT, and Treasury). Almost all agencies reported that constant monitoring of the tracking system helped their complaints managers follow the progress of a complaint and monitor for problems. No agency interviewed for this study reported sufficient satisfaction with a complaints tracking system that we could recommend its use here.

An agency should regularly analyze the information captured by its complaint tracking system to determine where processing times exceed the applicable regulatory time frame. Such an analysis will enable the agency to effectively target and utilize its resources, hold relevant management officials accountable for their performance, and reduce complaint processing times.

CONCLUSION

Each of the agencies reviewed in this study established management controls over complaints processing. The tools used by agencies were:

Additionally, use of an efficient complaints monitoring and tracking system helped the agencies follow cases and identify problems as they arose. Use of these tools appears to greatly enhance an agency's ability to produce a timely, quality work product, and improve the likelihood that the agency will meet its goal of maintaining an efficient, fair and impartial complaint resolution process.

Interestingly, this study revealed that the size of the agency did not make a difference in how, or whether, an agency achieved success. Rather, the imposition of management controls was essential for effective performance for all agencies of all sizes.

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Footnotes

1. Additionally, a final decision should be issued within 60 days of notice from an administrative judge that a complainant has withdrawn a hearing request. Id.

2. The United States Postal Service was not considered in this study.

3. It should be noted that some of the agencies selected marginally exceeded regulatory time-frames, but the volume of their complaint processing suggested that they be consulted about their practices.

4. Success in one or more areas did not necessarily result in overall success in achieving an efficient complaint processing system. For instance, an agency may have excelled in producing a large number of investigations in a short time-frame, but may not have been timely in conducting EEO counselings, dismissing complaints or writing final decisions.

5. Data prior to 2004 did not delineate counselings by those in ADR or those for which extensions were granted by the complainant so it is difficult to be completely certain whether an agency was actually timely if counselings continued beyond 30 days. Therefore, in assessing agencies, we looked at both the 30-day and the 90-day maximum to determine which agencies to examine in more depth.

6.

7. At the Smithsonian, the complaints manager must accept or dismiss a claim within 30 days; at the State Department, the legal staff in the EEO Office must do so within 10 days; and at the VA, the intake specialist will accept or dismiss a claim within 45 days.

8. Generally, an investigation of a mixed case complaint conducted pursuant to 29 C.F.R. § 1614.302 must be completed before the 120-day time period expires for the agency to issue its final decision.

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This page was last modified on December 1, 2004.