Written Testimony of Martin S. Ebel Deputy Director of the Houston District Regarding the EEOC's Efforts to Establish its Quality Control Plan

Meeting of March 20, 2013 - Development of a Quality Control Plan for Private Sector Investigations and Conciliations

I believe that establishing a quality control plan (QCP) for the Commission is an excellent idea. Rather than address the numerous possible points where the Commission might evaluate quality, I have chosen to address some of the foundational ideas that might undergird the QCP. I applaud the Commission's effort to design and adopt uniform standards for its expectations about what constitutes a quality investigation.

Quality-and more particularly this QCP-will not come without some price. For example, it is possible that the defense bar may use our QCP to undermine our litigation and the plaintiffs' bar may use it to seek to overturn our dismissals. If the defense can convince a court that we failed to meet some of our own quality measures, they may get the case thrown out of litigation. Similarly, plaintiffs' attorneys might seek to demonstrate that what we have disclosed in a Section 83 request does not comport with their interpretation of the QCP, using the plan to justify reconsideration and recession of the NRTS.

To guard against such outcomes, it might be best to prefer terms such as "usually" over "always" in the QCP. It also may be beneficial to look at most of the quality criteria (or indicia) as simply present or absent. Only in a few instances-such as the analysis of the facts to the law, or the proper PCHP categorization of the cases-should the criteria involve evaluating whether we have reached a correct outcome. And where the QCP evaluates the judgment of the investigator, it should seek to validate the result the investigator reached, rather than try to determine with certainty that s/he reached the absolute correct result. This means using the QCP to determine whether the investigator made a decision that was justifiable, even if the evaluator may have made a different decision.

The QCP should include an explanation for the rationale for the plan. In other words, it would be helpful if the QCP expressly states why good quality is important to the Commission. There can be a number of reasons for insisting on quality: to promote good recordkeeping; to enhance customer service; to foster better litigation vehicles; and others. Discussion of the Commission's rationale will help the field better understand and execute the Commission's wishes.

Furthermore, it seems clear that the field cannot consistently deliver investigations that simultaneously: (1) are of high quality and provide correct recommendations; (2) are an efficient use of available resources; and (3) are completed quickly. Necessarily a focus on any one of the three components will work to the detriment of one or both of the other two. For example, if we were to try to complete investigations within ninety days (a proposal from one of the public comments), we could only do so by either directing more resources (more likely vastly more resources) to the investigations or accepting a much lower overall level of quality in them. The QCP would be remarkably more useful if it provides guidance on how to balance the quality-resource-timing tripod.

It also seems likely that our customer service responsibilities can also impact this tripod. If, for example, a party is particularly needy in their requests for information from-or even merely contact with-the investigator, both the resources we end up devoting to the case, and the timing for completion may exceed what we would typically expect. Our QCP should include both recognition of this potential dilemma and guidance for resolving it. Furthermore, the QCP should not be so rigidly constructed so as to turn case investigation into an exercise in meeting the quality criteria-or merely a process checklist. We must still have the flexibility to go where the evidence takes us.

Finally, if the QCP becomes too complicated or too onerous, it will be difficult to apply-either internally by field management, or by whoever is charged with performing the evaluations under the QCP. This will result in the field not engaging in its own analysis of their own quality levels unless absolutely necessary. The simpler the QCP is, the more likely the field will be to consistently implement it and engage in self-monitoring. Accordingly, measures that are less complex-like yes/no, and present/not present (regarding, for example, a document in the file)-will be easier to integrate into every day management. It also seems important to provide the criteria, whatever they are, to the field offices to encourage implementation and self-evaluation.

The initiative to focus on and measure quality is laudable and an important part of the Commission's mandate. Implementation of this initiative must be carefully designed to avoid a number of potential pitfalls.