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Statement of Timothy B. Hannapel, Assistant Counsel National Treasury Employees Union

The U.S. Equal Employment Opportunity Commission

Meeting of September 7, 2006, Washington D.C. on Federal Sector EEO Investigations

Madam Chair and members of the EEOC, I am Tim Hannapel, an Assistant Counsel in the Office of General Counsel at the National Treasury Employees Union (NTEU). I appreciate the opportunity to present this statement on behalf of NTEU President Colleen M. Kelley on the state of agency-conducted investigations of EEO complaints in the federal sector. I’ve been asked to focus in particular on the perceived conflict of interest that arises from agencies conducting their own investigations of EEO complaints.

The National Treasury Employees Union represents approximately 150,000 workers in 30 government agencies, making it the largest independent non-postal federal labor union. NTEU has worked hard during its entire history to defend and improve federal employee protections, rights and benefits, and we take very seriously the proper investigation and adjudication of the statutory and contractual rights of our members. We are especially concerned that any acts of discrimination or unfair treatment be fully addressed and remedied through fair complaint and appeal procedures.

1. Federal Employee Rights and Available Remedies

Employees in NTEU’s bargaining units who believe they have been the victim of discrimination or unfair treatment have the right to pursue their claims either through the statutory EEO appeals procedure or through the negotiated grievance-arbitration process.

The grievance procedure allows the employee one single forum in which to advance all of his or her claims, whether they are based on statutory EEO rights or contractual rights. The grievance must be handled fairly and without reference to union membership by NTEU. An employee first seeks assistance from a trained union steward, who advises and assists in filing the grievance. If necessary, the grievance is taken to arbitration. Arbitration is handled on the employee’s behalf by one of NTEU’s field representatives, almost all of whom are attorneys. If the agency refuses a reasonable settlement of the claim, an experienced arbitrator holds a hearing and issues a decision under tight timeframes. The employee may seek EEOC review of the arbitrator’s decision, and has a right to a trial de novo in federal court.

If the employee files an EEO complaint, the employee must first seek informal counseling from an agency EEO counselor. If the employee then files a formal complaint, the agency must conduct an investigation and provide the employee with an agency Report of EEO Investigation. Statistics indicate that agencies most often find that no discrimination occurred. The employee may then seek a hearing before an EEOC Administrative Judge, where discovery against the agency is allowed. If the EEOC AJ issues a favorable recommended decision, an agency is more likely to be open to a reasonable settlement of the claim. If settlement does not occur, the employee can appeal to the EEOC, or seek a trial de novo in federal court.

2. NTEU Practice

Most often, NTEU recommends to employees that they avoid the EEO complaint process, and instead file a grievance under the negotiated procedure, for several reasons. First, employee claims often have several potential statutory and/or contractual bases. The grievance procedure allows a forum for consideration of all of the allegations. Where an arbitrator may not find that the facts support a finding of intentional discrimination under the EEO statutes, he or she may be more willing to find that the agency violated another statute or a provision of the collective bargaining agreement, thus affording a basis for relief to the affected employee.

Moreover, as a practical matter, if the employee files an EEO complaint, he or she is at the mercy of the agency process, with no possibility of truly independent investigation or adjudication until the claim is brought to the EEOC or federal court. As the Commission acknowledges, the agency investigation is subject to, at a minimum, a perception of conflict of interest. In NTEU’s experience, this conflict of interest is often real, not just perceived, due to the simple fact that the agency has full control over the investigation. Most frequently, the investigation is conducted by a non-bargaining unit employee of the agency. Even when well-intentioned, agency investigators must ultimately answer to a supervisory chain of command that also controls their own tenure of employment. In other words, the agency investigator ultimately is investigating the very management that also controls his or her own hiring and firing. This is a real, not perceived, conflict of interest. (Only rarely do we see agency investigations contracted-out, and in those instances, it is not infrequent that the contract investigator is a former agency management employee.) This conflict of interest, whether real or perceived, undermines the credibility of the entire investigatory effort. For this reason, NTEU prefers the grievance-arbitration process where the union steward investigates and a neutral arbitrator adjudicates the claim.

3. Possible Improvements

Any real improvement to the initial EEO investigation must focus on the independence of the investigator. Only an independent investigation has credibility in the eyes of employees and management alike, as well as Congress and the public. Without an improvement in the credibility of the process, the Commission cannot expect any increased likelihood of resolving cases short of an independent adjudication, whether by the Commission or a federal court, with any attendant cost or time savings.

NTEU thus recommends that the Commission take steps to enhance the independence of the initial agency investigation. One such step would be for the EEOC itself to conduct the initial investigation. Of course, there are obvious significant budgetary limitations to such a change, especially if implemented across the government. Moreover, it would be unlikely that Congress would support such a change unless the Commission could first empirically demonstrate that real benefits would result. Accordingly, NTEU believes the Commission should experiment with a small-scale pilot program, by entering into a memorandum of understanding with a federal agency partner. That agency must be large enough for representative results to occur quickly.

NTEU appreciates the consideration of our viewpoint and we are happy to assist the Commission regarding this matter in any way that we can. Thank you.

This page was last modified on September 6, 2006.