January 29, 1999
Ms. Frances Hart
Executive Officer
Executive Secretariat
Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507

Dear Ms. Hart:

Enclosed are the comments of the Council of Federal EEO and Civil Rights Executives to the Equal Employment Opportunity Commission’s Proposed Final Rule Revising the Federal Sector Discrimination Complaint Processing Regulations, 29 C.F.R. Part 1614, which was dated December 28, 1998.

The Council is composed of EEO professionals at the different Federal agencies throughout the Washington Metropolitan Area. Although the Council is not a lobbying organization, our members are highly committed to the success and the improvement of the complaints process and other EEO-related matters. For Council members, EEO is not simply a job, but a commitment. While many of our members have a wealth of experience in managing EEO programs in federal agencies, some have also used the EEO process as Complainants in the past. Thus, they are in the enviable position to assess the EEO process from the perspective of federal agencies, as well as from Complainants’ viewpoint. It would be unwise and unfortunate if EEOC overlooked the experience shared by our members.

While we agree with some of the EEOC proposals, we feel that others would not improve the current process. Specifically, we feel that the U.S. Department of Justice should be asked to issue a legal opinion on one of the key proposals of EEOC--allowing Administrative Judges to render final decisions. Considering that the Council and EEOC have reached an impasse on this important issue, we feel that a neutral party like the U.S. Department of Justice should mediate this dispute.

We do not want to limit our comments to the proposals that EEOC has put on the table. We have a lot more to offer. This is why we have also offered our own recommendations to ameliorate the EEO process.

If you have any questions about enclosed document, you may contact me at

(703) 607-1976, or the Vice-Chairs, Jorge Ponce, at (202) 622-0321, and Delia Johnson, at (202) 619-5151.

Sincerely,
Luther Santiful
President
Council of Federal EEO
And Civil Rights Executives
Enclosures

Ms. Frances Hart
Executive Officer
Executive Secretariat
Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507

Dear Ms. Hart:

This is in response to the Equal Employment Opportunity Commission’s Proposed Final Rule Revising the Federal Sector Discrimination Complaint Processing Regulations (hereinafter, the Proposed Final Rule Revision),

29 C.F.R. Part 1614, which was dated December 28, 1998.

The Council believes that EEOC’s proposal to make administrative judge’s decisions final is the most important change in the December 28, 1998 Proposed Final Rule Revision. Thus, while the Council has discussed this proposal at length beginning on page 9, it felt it was necessary to state its opinion clearly at the beginning of this document. The Council opines that if this proposal is implemented it will cause irreparable damage to the relationship between EEOC and federal agencies, a very unfortunate development especially for the new EEOC’s Chairwoman. The Council believes that EEOC does not have the statutory authority to implement this proposal, and strongly suggests to let the Department of Justice render a legal opinion on this issue.

Council members believe there is a need to improve the discrimination complaint process in the Federal sector. We desire to make the process better by improving its effectiveness and efficiency, while protecting the civil rights of Federal employees. But the Council believes very strongly that prevention and deterrence of discrimination are the key, rather than concocting cosmetic changes that would make the process worse. To accomplish this goal, it is necessary to have as much information and statistics about the current process as possible to ensure that civil rights and nondiscrimination are taken seriously by Federal agencies.

The Council members are the front-line operational EEO executives and professionals. We know, first hand, what are the problems in the system. EEOC Management Directive 110 charges us with fulfilling our complaints processing role in a neutral, impartial, and objective manner. This is a role we take seriously.

As proof of the effectiveness of EEO Offices, federal agencies paid complainants nearly $13.5 million in back pay and compensatory damages, and paid attorney’s fees over $4 million. (EEOC’s Federal Sector Report on EEO Complaints Processing and Appeals for Fiscal Year 1996, hereinafter referred to as The EEOC Report, p. T 33). In addition, 11,243 complainants received non-monetary relief (Id. at 43). Agencies settled nearly twice the number of cases (5,830) and dismissed nearly three times the number of cases (8,904) (Id. at T-27) than the number of cases in which administrative judges issued decisions (3,083) (Id. at

T-36). In addition, 2,653 complaints were withdrawn (Id. at T-27), primarily during processing by the agencies. Council members think that a vast majority of the withdrawals were due to agencies’ EEO staffs educating complainants on relevant personnel/EEO policies and procedures, and gathering and providing comparative information to the complainants.

FY 1989 (p. 19, The EEOC Report for FY 1992) to 26,410 in FY 1996 (a 63% increase) (The EEOC Report at 21)--and that the financial and staffing resources of EEO offices have decreased, it is unrealistic to limit the discussion for improving the current process to just the complaints processing.

In addition to discussing the proposed EEOC changes, the Council would like to offer its own recommendations to ameliorate the current process for processing discrimination complaints.

COUNCIL RECOMMENDATION: The Council believes there is one thing that EEOC can do now, with no changes to any regulations or directives, to assist agencies in processing complaints more effectively and efficiently. We ask EEOC to take this action first, before taking upon itself more authority and responsibility.

COUNCIL RECOMMENDATION: To amend 1614.105(a)(2) to enforce strictly the 45-day timeframe to contact an EEO Counselor. The only proposed exceptions to this timeframe will be those which rise to a certain level; for example, when complainants show that (s)he was not notified of the time limits, or while serving on active duty in the military, or during a stay in the intensive care unit at a hospital. The Council believes that since EEOC proposes to strictly enforce the timeframes for the appellate process under Section 1614.403, it should apply the same logic to the timeframe allowed to contact an EEO Counselor.

COUNCIL RECOMMENDATION: To add to 1614.107 a new basis for dismissal when complaints fail to establish a prima facie case, or when it is impossible for complainants to establish a prima facie case--for example, when complainants allege race discrimination and the only similarly situated employees are of the same race as complainants. Complainants would be safeguarded by the right to appeal to EEOC. Agencies will investigate the complaints in those instances when EEOC, on appeal, overturned the dismissals. As discussed in the March 1998 issue of the Federal EEO Advisor, there are many complaints that get into the system that have nothing to do with EEO issues.

This suggestion would result in considerable savings to agencies, as these complaints would be dismissed prior to the investigative stage. In addition, this suggestion would allow the EEO staffs to spend more time to process meritorious complaints and to issue more timely final agency decisions. There are Council members who report complaints sitting for months for lack of funds to investigate them.

COUNCIL RECOMMENDATION: The Council would like EEOC to provide more guidance about the conflict between Title VII and the Privacy Act. Agencies are asked to redact information on investigative reports related to personal information to the point that makes it very difficult, if not impossible, to adjudicate these complaints.

EEOC Proposal: To amend Section 1614.102 by adding language to require all agencies to establish or make available an alternative dispute resolution (ADR) program for the EEO pre-complaint and formal-complaint process.

Council Discussion: There is no objection to making ADR a required option in most instances as long as EEOC understands that there are some situations that are inappropriate for this option. For example, quid pro quo sexual harassment cases and class allegations are not appropriate for ADR. The Council recognizes the need for EEOC to provide more guidance on establishing formal ADR programs.

EEOC Proposal: To change Section 1614.105 to require that counselors advise aggrieved persons in writing that they may choose between participation in the ADR program offered by the agency and the traditional counseling activities provided for in the current regulation.

Council Discussion: There is no objection to this change.

The Council wishes, however, to make several observations. EEO counseling is a form of ADR; therefore, comments calling for offering ADR in lieu of EEO counseling are nonsensical. EEO counseling is highly effective. In FY 1996, approximately 60% of matters brought to the attention of EEO Counselors were resolved during the informal process, and did not result in discrimination complaints being filed (p. 13 & 21, The EEOC Report). This resulted in 37,888 people resolving their concerns and not filing discrimination complaints.

During the Council’s March 18 meeting, the Legal Counsel commented that, in meeting with employees, many reported that they did not file discrimination complaints because they were intimidated by the EEO Counselors. The Council members strongly object to this characterization. While there may be a few instances where the EEO Counselor intimidated an aggrieved person or where an aggrieved person interpreted appropriate EEO counseling as intimidation, the Council believes only a minuscule portion of aggrieved persons do not file discrimination complaints for this reason.

EEOC Proposal: To eliminate the provision in section 1614.107(h) that permits agencies to dismiss complaints for failure to accept a certified offer of full relief.

The Council also believes that EEOC should further explore the implications of the Gibson v. U.S. Department of Veterans Affairs, Civil. No. 96-3776, Lexis 3635 (1998), before implementing this proposal. The U.S. Court of Appeals for the Seventh Circuit ruled in Gibson that EEOC lacked the authority to award compensatory damages.

EEOC Proposal: To change Section 1614.107 by allowing agencies to dismiss complaints that allege dissatisfaction with the processing of a previously filed complaint, or where the agency strictly applies the criteria set forth in Commission decision and finds a clear pattern of misuse of the EEO process.

Council Discussion: There is no objection to this proposal.

EEOC Proposal: To amend section 1614.108(b) to replace the phrase "matter alleged to be discriminatory" with the word "claim," and 1614.603 to remove the word "allegations" and replace it with "claims." These changes are designed to ensure that subsequent events or instances involving the same claims are not filed as separate complaints.

Council Discussion: There is no objection to this proposal.

EEOC Proposal: To remove from the hearings section the provision permitting administrative judges to remand issues to agencies for counseling or other processing.

Council Discussion: There is no objection to this proposal. However, the Council notes that if a complainant request a hearing on a consolidated complaint prior to the agency’s completion of the investigation, EEOC allows the administrative judge to decide how best to ensure an appropriate record, whether by staying the hearing process for some time period of time during which the agency can finish the investigation. The Council believes that the administrative judge should not ask the agency to complete the investigation. Instead, the Council believes that the administrative judge should supplement the record through discovery or other methods at the hearing.

EEOC Proposal: To amend section 1614.606 to require that agencies consolidate two or more complaints filed by the same complainant.

Council Discussion: The Council objects to this provision. It believes that consolidating two or more complaints from the same complainant, without considering whether the issues or claims are like or related to the original complaint, will cause confusion and unnecessary delays in the investigation and adjudication of complaints.

EEOC Proposal: To remove the right to immediately appeal the dismissal of a portion of a complaint.

Council Discussion: There is no objection to this change.

EEOC Proposal: To allow complaints under 1614.108 to submit request for hearings directly to EEOC.

Council Discussion: There is no objection to this provision as long as complainants are required to simultaneously serve notice on the agency that (s)he has requested a hearing.

EEOC Proposal: To specify in 1614.109(b) that administrative judges have the authority to dismiss complaints during the hearing process for all the reasons contained in 29 CFR §1614.107.

Council Discussion: The Council objects to this provision because it opines that EEOC only has appellate authority. Dismissals are considered final agency decisions.

EEOC Proposal: To provide that administrative judges issue final decisions on complaints that have been referred to them for a hearing. EEOC believes "that allowing agencies to reject or modify an administrative judge’s findings of fact and conclusions of law is fundamentally unfair. This is particularly true because those cases have been referred to a neutral third party, an EEOC administrative judge, to hear the dispute. Historically, agencies have rejected or modified a majority of administrative judges’ findings of discrimination, but have adopted nearly all findings of no discrimination."

Council Discussion: The Council objects to this provision because it believes

The Council strongly objects to the statement that agencies abuse the administrative process by rejecting or modifying a majority of administrative judges’ findings of discrimination, while adopting nearly all findings of no discrimination. Council members report that the Office of Federal Operations upholds agencies in the majority of cases in which the administrative judges’ findings of discrimination have been overturned. However, EEOC has never published these statistics in its annual Federal Sector Report on EEO Complaints and Appeals. While complainants not familiar with the administrative process may make wrong assumptions about the unfairness of having agencies modify administrative judges’ findings of discrimination, EEOC should know better. Consequently, the Council recommends, given that EEOC has admitted that it does not have this data, that the General Accounting Office--another neutral third party-- be asked to collect it immediately from agencies. This would serve to dispel myths and educate critics who doubt the impartiality of the process. If the General Accounting Office concurred with the Council’s position that EEOC upheld the majority of the finding decisions on appeal, it would underscore the need of remedial training by Administrative Judges.

The Council concedes that there might be some federal agencies that are abusing their authority to overturn administrative judges’ decisions containing findings of discrimination. However, the Council believes that this is not the norm in the larger federal agencies, like the Department of Defense and the Treasury Department. Consequently, rather than overturning a practice that has been used appropriately for its intended purpose, the Council recommends that EEOC should work closely with those smaller federal agencies that need additional training in this area.

29 CFR §1614.108(c)(3) states the following:

When the complainant, or the agency against which a complaint is filed, or its employees fail without good cause shown to respond fully and in timely fashion to requests for documents, records, comparative data, statistics, affidavits, or the attendance of witness(es), the investigator may note in the investigative record that the decisionmaker should, or the Commission on appeal may, in appropriate circumstances:

(I) Draw an adverse inference that the requested information ... would have reflected unfavorably on the party refusing to provide the requested information;

(ii) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party;

(iii) Exclude other evidence offered by the party failing to produce the requested information or witnesses;

(iv) Issue a decision fully or partially in favor of the opposing party; or,

(v) Take such other actions as it deems appropriate.

Consequently, the Council thinks that EEOC should apply its own regulation to itself. If EEOC refuses to collect the requested statistics or to allow the General Accounting Office to collect it, the Council feels that the reason for the refusal is that the statistics would reflect unfavorably on EEOC. This would vindicate the Council’s position that EEOC upholds the majority of rejected findings of discrimination decisions when they are appealed.

EEOC has placed great emphasis on ADR in the February 20, 1998 NPRM. The Council opines that EEOC should practice what it preaches by letting two neutral third parties--the General Accounting Office and the Justice Department--mediate the impasse that has been reached between agencies and EEOC with respect to AJ decisions and missing statistics.

Although The EEOC Report sets forth every decision, by individual agency, regarding actions taken after issuance of the 3,083 AJ recommended decisions

(p. T34--T 36), EEOC contends in the February 20, 1998 NPRM that it "does not have available current information containing the percentage of agency decisions it accepts or rejects on appeal following administrative judge decisions." The EEOC Report does not even address how many of the 178 cases where the agency rejected the administrative judge’s recommended findings of discrimination were appealed by complainants. We find it rather incredible that EEOC can track 3,083 decisions, but cannot track 178 of its own cases in FY 1996.

The EEOC Report says that 64,298 allegations of discrimination were raised with EEO Counselors, while EEOC administrative judges issued 3,083 decisions in FY 1996 (p. 11 & T 36). This means that over 95% of all allegations of discrimination were resolved prior to an EEOC hearing or via final agency decisions without hearings. Making implications based on less that 5% of discrimination allegations raised by Federal employees during a year is highly suspect, if not improper.

The Council believes, as a practical matter, that blaming EEO Offices for the continuing perception of unfairness and inefficiency of the current administrative process is a smoke screen that allows EEOC not to address the real issues. For example, according to the EEOC Report, the average processing time for hearings has risen from 183 days in FY 1993 to 234 days in FY 1996--nearly a 30% increase. The number of administrative judges actively conducting hearings during this time has increased slightly, from 71 to 74.9, but the average number of resolutions per administrative judge has declined from 126.1 to 116.9 (p. 56, The EEOC Report). In FY 1995, there were 9,324 total closure, while there were 8,760 closure in FY 1996--a decrease of 6% (p. 56, The EEOC Report). In

FY 1993, 36% of the cases were settled (p. 46 of The EEOC Report for FY 1993), while in FY 1996, 31% were settled--a 5% decrease (p. 52, The EEOC Report). Furthermore, the administrative judges stated (EEOC’s May 1997 report "The Federal Sector EEO Process," p. 13) that they need "additional information on relevant policy guidance and improved technical assistance regarding the processing of complaints."

The data regarding EEOC’s processing of appeals does not look any better. The Council notes that the number of attorneys writing decisions has remained steady at 39, while the number of cases produced increased 12.1% (p. 75, The EEOC Report). However, the processing time for appeals has increased by 118% between FY 1993 and FY 1996 (more than doubling from 148 days to 323 days) (Id. at 71). It is not clear to the Council how the same number of attorneys can issue more decisions but take more than twice as long to do it.

The Council seriously questions how EEOC can handle administratively the increased authority and responsibility it proposes for itself. At the Council’s March 18th meeting, the Legal Counsel said EEOC anticipates receiving 6,000 hearing requests during the first year after the proposed change. This is a decrease of over 40% from what EEOC received in the last three fiscal years (10,712 in FY 1994, 10,515 in FY 1995, and 10,677 in FY 1996 according to p. 52 of The EEOC Report). The Council does not see how this is possible. Assuming the Legal Counsel misspoke and EEOC anticipates receiving 6,000 additional requests, this would be an increase of 56%. When coupled with the Legal Counsel’s statement that the Federal sector will not receive additional budget, the Council has grave doubts that EEOC could handle the additional authority and responsibility.

EEOC Proposal: To allow administrative judges to send the hearing record, rather than the entire record, to parties with the final decision.

Council Discussion: The Council strongly objects to this provision. It believes that agencies should get the entire hearing record to better prepare themselves when appeals are filed with EEOC.

EEOC Proposal: To remove the requirement that administrative judges send final decision and the record to the parties by certified mail.

Council Discussion: The Council objects to this provision. Considering that proof of receipt of the final decision and record trigger other steps in the administrative process, the Council believes that discarding this provision would be irresponsible.

EEOC Proposal: To revise section 1614.204(b) to provide that a complainant may move for class certification at any reasonable point in process ..."

Council Discussion: The Council objects to this provision. Certified class complaints should be rare. There is already a mechanism to appeal denials of class certifications, and we are not aware that such denials are often overturned on appeal to EEOC.

EEOC Proposal: To amend section 1614.204(d) to provide that administrative judges issue final decisions on whether a class complaint will be accepted or dismissed. Currently, administrative judges make recommendations to agencies on acceptance or dismissal.

Council Discussion: The Council objects to this provision for the same reasons it objects to similar proposal in the individual process under Section 1614.109.

EEOC Proposal: To amend section 1614.204(g)(2) to require that administrative judges must approve class settlement agreements pursuant to the "fair and reasonable" standard, even when no class member has asserted an objection to the settlement.

Council Discussion: The Council objects to this provision since 29 CFR §1614.204(a)(2)(iv) requires the class agent or representative to fairly and adequately protect the interests of the class. Moreover, the Council believes that this provision is inconsistent with the EEOC’s goal to remove unnecessary layers from the administrative process. In this case, EEOC would be adding an unnecessary layer.

EEOC Proposal: To amend section 1614.204(l)(3) to clarify the burdens of proof applicable to individual class members who believe that they are entitled to relief. Under the new burden, there is a presumption of discrimination, when a finding of discrimination has been made, as to every individual who can show (s)he is a member of the class and was affected by the discrimination during the relevant period of time. Agencies would then be required to show by clear and convincing evidence that any class member is not entitled to relief.

Council Discussion: There is no objection to this proposal.

EEOC Proposal: To amend section 1614.403 to require that an appeal shall be filed with 30 days of receipt of the dismissal or final action, and any supporting statement or brief shall be filed with 30 days of the filing of the notice of appeal. However, we would like to point out a discrepancy between the timeframe (15 days) to file an appeal per section 1614.110(a), and that of section

Council Discussion: The Council does not object to this proposal

EEOC Proposal: To amend section 1614.404 to authorize the Office of Federal Operations to take appropriate corrective action where a party to an appeal fails without good cause shown to comply with appellate procedures or to respond fully and in a timely fashion to a request for information.

Council Discussion: There is no objection to this proposal. The Council notes that similar sanctions are available to AJs in 1614.109(d)(3) for uncooperative witnesses at hearings. However, no statistics are available to show the number of times that AJs have imposed these sanctions. The Council suggests that EEOC publish in the annual Federal Sector Report on EEO Complaints and Appeals the number of times that sanctions have been imposed under 1614.404 and under 1614.109(d)(3).

EEOC Proposals: To amend 1614.405 to provide that decisions on appeal from final decisions by AJs after a hearing will be based on a substantial evidence standard of review.

Council Discussion: There is no objection to this proposal. However, the Council disagrees that final decisions on the merits without a hearing will receive a de novo standard of review by EEOC. The Council believes that applying a de novo standard of review is an inefficient use of EEOC’s and the EEO Offices’ limited resources. Moreover, it contributes to the perception that agencies cannot be trusted to issue impartial decisions, which is untrue. Consequently, the Council recommends that there should be only one standard applied to decisions on appeal, preferably the substantial evidence standard.

EEOC Proposal: EEOC would retain its discretion to reconsider any decision under 1614.407(a), but allow parties to seek reconsideration where there is a clear mistake of fact or law or where the decision will have a far ranging impact on the agency.

Council Discussion: Considering that federal agencies cannot appeal discrimination complaints in U.S. District Courts, the Council welcomes this recommendation.

EEOC Proposal: To amend 1614.501 to authorize administrative judges to award attorney’s fees in cases where a hearing is requested.

Council Discussion: The Council does not believe that administrative judges should be authorized to render final decisions, or to award funds from other agencies’ appropriations.

EEOC Proposal: To amend 1614.501(e)(l)(iv) to provide that an award of attorney’s fees may include compensation for the time spent during the counseling or ADR periods. EEOC states that the Merit System Protection Board’s (MSPB) regulations do not contain any restriction on attorney’s fees.

Council Discussion: The Council believes that the informal, pre-complaint process is intentionally designed to facilitate early resolution of a dissatisfaction. Intervention by an attorney at the informal or ADR stages would create a chilling effect on early resolution because of the inherent self-interest caused by the potential attorney’s fee award.

The Council believes that the MSPB process should not be compared with the discrimination process. Discrimination complaints address fundamental human rights--the right not to be subjected to adverse treatment because of immutable characteristics such as race, sex, age, or disability. On the other hand, MSPB appeals address procedural rights granted by statute and regulations, which can theoretically be taken away. In an ironic twist, most discrimination complaints address the "softer" issues of working conditions, job assignments, harassment, evaluations, awards. MSPB appeals, by definition, address only terminations and serious personnel actions. It is precisely these types of discrimination complaints that are settled better at the informal stage without the intervention of attorneys.

EEOC Proposal: To require all papers to be served on both the attorney and the complainant.

Council Discussion: There is no objection to this proposal.

The Council agrees with a statement made by EEOC’s Director of Federal Operations that the primary problem in the Federal discrimination complainant process--the issue that leads to most letters to both EEOC and Congress--is how long the complaint process takes. While agencies bear responsibility for the length of time to process complaints, they have a better track record that EEOC. Out of 79 federal agencies ranked by the average number of processing days for all closures, EEOC ranked 74. Moreover, while the average processing time was 379 days in the federal government, EEOC’s average was 940 days (The EEOC Report, p. 37-41). The Council opines that EEOC needs all the help it can get from EEO Offices. To grant EEOC more responsibility to adjudicate more complaints would be a grave mistake.

We appreciate this opportunity to assist EEOC in this important endeavor.

Sincerely,
Luther Santiful
President
Council of Federal EEO
And Civil Rights Executives