The Federal EEO Complaint Process: Increased Accountability

Measures Needed

Prepared for the U.S. Equal Employment Office Commission

Office of Federal Operations Director Carlton M. Hadden

Prepared by The Coalition For Change, Inc. (C4C)

May 3, 2016

The U.S. Equal Employment Opportunity Commission (EEOC) needs to make Federal agencies and officials more accountable for violating employment discrimination and whistleblower protection laws. Agency EEO data, reported pursuant to the Notification and Federal Employee Anti-discrimination and Retaliation Act (No FEAR) of 2002, underscores a critical need for enhanced accountability and transparency within the Federal EEO complaint process. The EEOC should adopt added accountability measures to combat the chronic retaliation against employees which: • negatively affects the government’s operational efficiency, • increasingly puts the employee as well as the public safety at risk,

and • annually costs the American taxpayer millions of dollars.

STATEMENT OF NEED

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C4C STATEMENT OF CONCERN

Despite the passage of the No FEAR Act of 2002, Federal workplace discrimination and unchecked retaliation continues to adversely impair the health and wealth of civil servants. Most notably, many qualified, highly skilled and well-educated Black Americans, either working or seeking employment in the Federal sector, continue to suffer financially, psychologically, and physically due to race discrimination and reprisal by federal officials.

Image: Atlanta Black Star

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Despite counseling reports and formal complaints in the thousands, federal agencies and the EEOC find discrimination less than 5% of the time. Moreover, when discrimination is found officials rarely, if ever, face any mandatory discipline.

C4C STATEMENT OF CONCERN (cont’d)

NOTE: FY 2014 -Merit Final Agency Decision finding discrimination ONLY 1.61%; Final Orders of Administrative Judges (AJ’s) Finding Discrimination ONLY 4.2%. Source: EEOC’s Annual Report of the Federal Workforce FY 2014 – Table B-15 FY 2014 Complaints Closed with Findings of Discrimination.

Figure 2 Completed Counseling to Formal Complaints

FY 2010 - FY 2014

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Measure 1: Prescribe That Agencies Announce Unlawful Violations via E-Notice to Employees (Operating Unit Level) Measure 2: Increase Use of Sanction Authority For Agency Non-Compliance with 29 CFR 1614 (Rule in Favor of Complainant) Measure 3: Post Class Action Complaints on EEOC Website Measure 4: Post Federal Violations on EEOC Homepage Measure 5: Disband Anonymity: Identify the Discriminating Official Measure 6: Use Certify Mail When Issuing Complainant Right To File a Civil Action Measure 7: Support Discipline. Refer Civil Rights Violators to the Office Special Counsel Measure 8: Prohibit GAG Orders That May Impose Harm on Public Health or Safety

INDEX OF RECOMMENDED FEDERAL WORKPLACE ACCOUNTABILITY

MEASURES

*NOTE: Some of the measures recommended to spur a workplace free of discrimination and retaliation The Coalition For

Change, Inc. (C4C) previously submitted in support of H.R. 1557 Federal Employee Antidiscrimination Act as introduced by Rep. Elijah Cummings on 3/24/15.

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The EEOC should require agencies to announce unlawful violations to employees via E-notice. The E-notice (e-mail) to employees shall, at a minimum, identify:

• the specific office where violation occurred,

• the statute that was violated,

• the name of the party found culpable; and

• a statement assuring that the discrimination found will not recur.

Measure 1: Prescribe That Agencies Announce Unlawful Violations via E-Notice

to Employees (Operating Unit Level)

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USDA

• Department of Agriculture (Cabinet Department w/ 17 agencies and 18 major offices)

USDA

• Forest Service (1 of 17 agencies)

USDA • National Forest System (10 Operating Units)

Source: Information extracted from organizational chart FY 2017 Budget Justification – USDA Forest Service

SDA

Identify Unlawful Violation at Operating Unit Level Example-U.S. Department of Agriculture (USDA)

USDA • Lands and Realty Management (1 of 10 Operating

Unit under National Forest System)

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Measure 2: Increase Use of Sanction Authority For Agency Non-Compliance

with 29 CFR 1614

Agencies routinely ignore provisions of 29 CFR 1614.

Agency Program To Promote Equal Employment Opportunity

The EEOC should make more effective, timely, and regular use of its sanction authority to combat discrimination. When a Federal agency violates an EEOC regulation governing Federal sector complaint processing, the EEOC should enter a judgment in favor employee. For example, when a Federal agency fails (without good cause) to timely comply with the 180 day “EEO complaint investigative requirement,” as prescribed in 29 CFR §1614.108 - the EEOC should enter a judgment in favor employee. [NOTE:-The U.S. Social Security Administration’s (SSA) No FEAR data disclosed that the agency

exceeds the prescribed days to conduct investigations. The SSA, which has on-going class complaint activity, reported that in fiscal year 2015 it exceeded regulations. [Average Number of Days 286 for Fiscal year of 2015.]

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• Example: Kennedy v Vilsack (EOC-570-2016-00127X) USDA failed to timely comply with EEOC’s order to produce complaint file by March 31, 2016.

• Documentation: Office of Special Counsel Letter to President Obama dated May 18, 2015. “. . . 50 % of civil rights complaints filed against high level USDA officials were not acted on the legally required timeframe.”

Agencies routinely ignore provisions of 29 CFR 1614.

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Measure 3: Post Class Action Complaints On EEOC Website

The EEOC should post “class action” complaint data on its website. Data should disclose: • the name of the agency; • the initial filing date of class complaint; and • status of the class complaint.

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Measure 4: Post “Federal” Violations On EEOC Website The EEOC should post federal violations on its “HOMEPAGE” similar to

how they post violations of the private sector.

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Measure 5: Disband Anonymity: Identify Discriminating Official

Where EEOC issues a final finding of discrimination and there exist no further recourse for appeal at the administrative level, a supervisor found guilty of violating a law shall be listed by name (in lieu of “S1” or “Supervisor 1”) in Federal Sector Appellate Decisions and made available on EEOC page.

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Measure 6: Use Certify Mail When Issuing

Complainant Right To File a Civil Action

To protect a complainant's right to file a lawsuit in court, the EEOC should issue complainant, the Right To File A Civil Action by certified mail, when appropriate.

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Measure 7: Support Discipline. Refer Civil Rights Violators to the Office Special

Counsel (OSC)

When a supervisor is found guilty of an unlawful violation and the EEOC issues a finding against the supervisor/agency and all appeal rights are exhausted--- the EEOC should at the very least, recommend discipline and forward the the discriminating official’s name to the OSC for discipline. Note: The C4C conducted a Freedom of Information Act (FOIA) inquiry to assess how often, if at all, the EEOC followed through with its enforcement authority by referring cases to the OSC for disciplinary action when appropriate. We found that over a ten year period and after finding retaliation in numerous cases, the EEOC referred ZERO names to OSC for disciplinary action.

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The EEOC should have referred both the Decatur case and Saunder’s case - which involved widespread retaliation and

“Blacklisting” at the VA - to the OSC for disciplinary action. In VA Case No 200L-0629-2004100828 the Final Agency

Decision footnoted in the Ralph Saunders v Veterans Affairs case the following statement” “ We also note the evidence

that they also retaliated against other employees who filed EEO complaints.”

The EEOC should make better use of its Memorandum of Agreement with the OSC. In the case of Isaac Decatur, the EEOC found Veteran Affairs (VA) managers guilty of discriminating against veteran Decatur; yet the EEOC failed to make any referral to the OSC. Veteran Decatur wrote to President Obama to request an answer as to why the managers were never disciplined for retaliating against complainants. The EEOC’s Todd A. Cox replied in a (May 13, 2011) letter to Mr. Decatur: “The matters you are concerned with are preventative in nature. While EEOC orders agencies to consider; we have no authority to issue discipline.“ (Decatur v Shinseki, 0120073404.)

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The EEOC should prohibit agency use of GAG Orders that may impose harm on public health or safety.

At the very least, the EEOC should issue a statement opposing a federal agency’s use of such waiver clauses in an EEO settlement agreement (a.k.a. GAG order) that precludes an individual right to disclose wrong-doing to the Office of Special Counsel where such a disclosure may represent a substantial and specific danger to public health or safety (i.e. Veterans Affairs’ patient waiting list abuses.)

Reference: Mitchell v Veterans Affairs [Destruction of Patient Medical Records-System Redesign YouTube Video.]

Measure 8: Prohibit GAG Orders That May Impose Harm on Public Health or Safety

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Presented by: Tanya Ward Jordan, President The Coalition For Change, Inc. (C4C) Attending C4C Chair Members Arthuretta Holmes Martin-Health and Wellness Chair David Grogan-Social Media Chair

THE FEDERAL EEO COMPLAINT PROCESS: INCREASED ACCOUNTABILITY

MEASURES NEEDED

“Darkness Cannot Drive Out Darkness; Only Light Can Do That”--- Dr. Martin Luther King, Jr.