Council Meeting

Held Tuesday, November 28, 2006

Host: Ms. Era Marshall

 

INTRODUCTION

 

Ms. Delia L. Johnson, Co-Chair and Director, Office of Civil Rights at the International Broadcasting Bureau, thanked everyone for attending the meeting and asked Council members to introduce themselves.  She thanked Era Marshall, Director of the Office of Equal Employment and Minority Affairs at the Smithsonian Institution, for hosting the meeting.

 

She proceeded to introduce the guest speaker, Virginia Andreu-Rosario – a general attorney with the Appellate Review Programs, Office of Federal Operations (OFO), Equal Employment

Opportunity Commission.  She has worked for EEOC for the last seven years.  

 

VIRGINIA ANDREU-ROSARIO

 

Ms. Andreu-Rosario started her presentation by explaining the history of the Task Force on Hispanics, which Carlton Hadden, Director of the Office of Federal Operation (OFO), created in 
September 2005 to address the Hispanic underrepresentation challenge in the federal sector.  This task force is made up of five, collateral-duty, OFO attorneys. Next, she reaffirmed the importance
of relying on Management Directive (MD) 715 to eradicate barriers.  
 
Ms. Andreu-Rosario indicated that the task force had gathered information last year that could explain the causes for the Hispanic underrepresentation challenge.  Thus, they provided training at the 
national conferences of major Hispanic organizations like LULAC, National Image, and NAHFE.  At the National Image conference in Arizona, the task force provided two training sessions in 
Spanish to the Hispanic community. Ms. Andreu-Rosario indicated that the task force had organized several focus groups in which attendees were asked questions regarding barriers, solutions
and recommendations.  Moreover, the task force reviewed various MD-715 reports, OPM reports, and the GAO report to become better informed on the causes of the Hispanic
underrepresentation.  
 
Ms. Andreu-Rosario explained that the task force recognized the importance of the agencies’ compliance with MD-715 to identify and eliminate the barriers facing Hispanics.  Among the MD-715
requirements that were essential to identify and eliminate these barriers were the collection of workforce statistics and applicant flow data, as well as the analysis of complaint data.  
 
She indicated that the Task Force plans to develop an action plan in FY 07 to establish direct contact with federal agencies and help them to identify barriers. 

 

 

QUESTION AND ANSWER SESSION

 

A Council member from the Department of Transportation explained that the Office of Personnel Management did not believe in targeted recruitment, and, thus, she encouraged EEOC to work with

OPM to reach a common understanding of this issue.

 

A Council member from the Air Force pointed out that some Hispanic candidates in the Southwest were reluctant to accept career program positions targeted at the GS-12 to GS-15 grade levels because of the mobility requirement. They did not want to move from the Southwest geographical area. Ms. Andreu-Rosaria stated that federal agencies should not focus their recruitment in just one geographic area. The Council member indicated Air Force does nation-wide recruiting

 

Jorge Ponce, Council Co-Chair, informed attendees about two recent MSPB decisions (Dean v. U.S. Department of Agriculture and Olson v. Dept. of Veterans Affairs).  See     http://www.opm.gov/employ/luevano.asp and http://www.mspb.gov.  In each of these decisions, the plaintiffs complained about the bypassing of their veterans’ preference by these federal agencies

in favor of selectees hired under the Outstanding Scholar Program.  Mr. Ponce encouraged all Council members to read both decisions. OPM has decided to suspend its own use of the Outstanding

Scholar Authority, pending resolution of the Dean and Olson litigation.  Mr. Ponce explained that the Outstanding Scholar Authority was established by the Luevano consent decree approved by the

United States District Court for the District of Columbia on November 19, 1981, to settle a class-action suit.  The plaintiffs in this case alleged that the Professional and Administrative Career Exam

(PACE), which the Government had been using to hire into about 120 occupations at the GS-5 and GS-7 levels, had an adverse impact on the employment of African Americans and Hispanics for

reasons that were not job-related.  Mr. Ponce stated that it was ironic that GAO, in its recent report (GAO-06-832: The Federal Workforce: Additional Insights Could Enhance Agency Efforts

Related to Hispanic Representation), alleged that Hispanics were underrepresented in the federal sector because of the low educational level of some in this group and, now, OPM suspended the

use of the Outstanding Scholar Authority that allowed the hiring of Hispanics with a grade point average of 3.45 or higher from accredited colleges.  Mr. Ponce suggested that rather than suspending indefinitely the use of the Outstanding Scholar Authority, which would have a chilling effect on federal agencies, OPM should impose a moratorium on its use only when there were applicants with veterans’ preference on certificates.  Consequently, if there were no applicants with veterans’ preference on certificates, Mr. Ponce suggested that OPM should continue to use the Outstanding Scholar Authority. In  addition, Mr. Ponce recommended that OPM should track by race and national origin the use by federal agencies of the Outstanding Scholar Program to determine its effectiveness.  

 

Mr. Ponce applauded the efforts of EEOC Commissioner Griffin in setting up the LEAD Initiative to increase the number of employees with targeted disabilities in the federal sector.  Nevertheless, he recommended that there should be another EEOC Commissioner leading up a similar Hispanic initiative.  In fact, he stated that the Executive Board of the Council had raised this issue repeatedly with OFO officials in past meetings.  Ms. Andreu-Rosario explained that while OFO had created separate task forces in the past to address the underrepresentation of Hispanics and people with targeted disabilities (the REED Project), Commissioner Griffin had set up her own initiative when she joined EEOC in 2006. Ms. Andreu-Rosario emphasized that Commissioner Griffin’s initiative did not fall under the jurisdiction of OFO. Mr. Ponce rebutted by saying that he had heard many Hispanics complain that EEOC was treating Hispanics disparately by not designating an EEOC Commissioner to address their concerns, and, thus, he indicated that EEOC had a perception challenge.  Ms. Andreu-Rosario stated that EEOC was interested in results, which were more important than having an EEOC Commissioner for the Hispanic initiative.  Nevertheless, she said that various EEOC officials were aware of this concern.   

 

Ms. Era Marshall stated that it was time for organizations to hold OPM accountable for its Hispanic initiative.  Mr. Ponce indicated that the National Hispanic Leadership Agenda (NHLA) had issued a report during the summer of 2006 on the lack of leadership demonstrated by OPM in pursuing the outreach and recruitment of Hispanics in the federal sector.

  

Ms. Johnson indicated the need to have the top leadership’s commitment to deal with this 40-year challenge.  She asked federal agencies to share their best practices with each other.  Mr. Ponce stated that after forty years of designating various task forces, blue ribbon commissions, and tiger teams, Hispanics still remained underrepresented in the federal sector.  Thus, he agreed with Ms. Andreu-Rosario that the time had come to concentrate on results rather than on preparing reports that reached the same conclusion. 

 

Mr. Ponce questioned Ms. Andreu-Rosario on her statement that EEOC required federal agencies to collect applicant flow data.  He referred to the recent GAO report on the lack of cooperation between EEOC and OPM (GAO-06-214) in which OPM cautioned federal agencies of significant legal risks associated with the collection of applicant data by federal agencies.  Mr. Ponce emphasized that most federal agencies would refrain from collecting this data until this issue has been settled between EEOC and OPM.  Gail Demers, from EEOC, indicated that the Department of Labor collected data on applicants.  In fact, she indicated that she could not imagine how federal agencies could assess the effectiveness of their recruitment efforts without this data.

 

Mr. Ponce indicated that while the EEOC Task Force on Hispanics was internal, it was dealing with governmentwide issues.  Consequently, he stated that he hoped that EEOC would ask federal agencies for their views on how to address this challenge and to share their best practices.  Before launching an action plan in FY 07, it was better for the task force to get the buy-in from federal agencies for those initiatives that they would be tasked with.

 

Mr. Ponce made reference to the term “underrepresentation” that Ms. Andreu-Rosario had used in her handout.  He pointed out that OFO had gone to great length to delete this term from MD-715.  Ms. Andreu-Rosario acknowledged that she had made a mistake in using it.   

 

 

MD-715 REPORTS

 

Ms. Johnson reminded everyone that the MD-715 Reports for FY 06 were due to EEOC on January 31, 2007.  She indicated that to meet this date, agencies had to complete their reports by December 31, 2006, in order to provide a month for the clearance process.

 

Gail Demers, from EEOC, stated that EEOC was currently entertaining the granting of extensions for submission of the MD-715 Reports for FY 06 to those federal agencies that asked for them .

 

MD-715 CONTRACTORS

 

Gail Demers asked the Council to collect a list of MD-715 contractors that specialized in assisting federal agencies to prepare the MD-715 statistics and report and to rank them.  Mr. Ponce indicated that the Council was not receptive to this suggestion because of legal liability concerns. 

 

EEO TRAINING

 

Ms. Johnson indicated that she has received many compliments regarding the EEO training that she offered to her staff and to Council members.  She is interested in getting other Council members to sponsor similar EEO training, and asked those who might consider it to contact her at 202 619-5151.

 

NO FEAR ACT TRAINING

 

Mr. Ponce publicly thanked Mariam Harvey (Director, Office of Equal Opportunity and Diversity at the U.S. Department of Treasury) for sharing with the Council her PowerPoint presentation that her staff prepared on the No FEAR Act.  It has helped various Council members to comply with the training requirement of the Act.

 

IMPROVING THE COMPLAINTS PROCESS

 

Ms. Johnson stated that the EEOC staff had asked the Council to develop recommendations to improve the complaints process.  Thus, she facilitated this discussion on this topic. 

 

Mr. Ponce mentioned that the GAO had agreed to prepare a report, under section 206 of the No FEAR Act, on the complaints process in the federal sector. 

 

Mr. Ponce indicated that before moving to recommendations, he wanted to emphasize that EEOC and EEO professionals had a vested interest in improving the complaints process.  Thus, he said that it made no sense for EEOC to remand a case to a federal agency for the issuance of a final agency decision (FAD) after a complainant had failed to cooperate with an Administrative Judge at the hearing stage.  While this practice reduced the hearing inventory at EEOC, it increased the FAD inventory at agencies.  To have a more collaborative relationship, Mr. Ponce opined that EEOC should dismiss these cases.     

 

Following are the recommendations from this discussion, which are subdivided into several categories.

 

TIMELINESS OF EEO INVESTIGATIONS

 

1) Add to 29 CFR 1614.107 a new basis for dismissal when complainants fail 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. Of course, complainants would be granted appeal rights to EEOC.

This suggestion would result in considerable savings to agencies, as these complaints would be dismissed prior to the investigative stage. The savings would be used to train managers and supervisors on how to prevent discrimination complaints.  Of course, this suggestion would require EEO Counselors to prepare more thorough Counselor’s reports, and would not be applicable if complainants engaged in ADR at the informal stage -- as EEO Counselors would lack sufficient information to compile a thorough Counselor’s report.   (This was Mr. Ponce’s suggestion, which was strongly supported by the Air Force and DoD representatives).

 

2)  Add a new provision to 1614.107 to allow the presumptive withdrawal of complaints when complainants did not respond to the notice sent under 29 CFR 1614.108(f) to elect, within 30 days of receipt of the investigative file, between a hearing before an EEOC administrative judge (AJ) or a final agency decision. When a complainant did not indicate his or her election, presumably the complainant, upon reading the report of investigation (ROI), had decided that he or she did not want to take further action. The ROI may have provided the complainant with information not previously known, and the information may have caused the complainant to recognize or change his or her belief that the action in question was caused by discrimination. In such instances, it is not only inefficient, but a waste of valuable resources, to require an agency to issue a final agency decision. (This was Mr. Ponce’s suggestion).

 

3) Incorporate statutory due dates in employees’ performance plans for the various steps associated with the investigation process. (This was GSA’s recommendation).

 

4) Increase the annual 32-hr. training requirement for EEO investigators.

 

CONFLICTS OF INTEREST

 

This set of recommendations dealt with the perennial conflict-of-interest polemic in having agencies investigating their own complaints (the fox guarding the hen house argument).  Mr. Ponce indicated that he had lectured outside affinity groups on this issue.  He cautioned these organizations to be careful what they asked for, considering that the ROI’s that agencies prepared were much more thorough than the anemic ones prepared by EEOC investigators in the private sector process.  In addition, he told them that investigators from federal agencies and EEOC applied the same EEO theories.  He also stated that EEO complaints filed by EEOC employees were investigated by EEOC investigators.  So, he asked rhetorically, where was the conflict?

 

Ms. Johnson indicated that in those EEO cases that presented a conflict of interest, EEO offices consistently asked other agencies to investigate them – as called for by Management Directive 110.   

 

OGC INTERFERENCE

 

A Council member indicated that federal agencies needed for EEOC to promulgate a firewall between the Offices of General Counsel and the EEO Offices in the processing of discrimination complaints.  He indicated that if you were not careful, OGC attorneys would even write the final agency decisions.

 

A Council member from the Department of Defense stated that OGC was too involved in the complaints process. For example, he indicated that OGC attorneys often assisted  managers to prepare affidavits related to EEO complaints, while at other times they were the biggest obstacle to the early settlement of these complaints.