EEO Executive Council Meeting

Held Wednesday, April 26, 2006

Host: Ms. Delia L. Johnson

 

 

DELIA JOHNSON

Ms. Delia L. Johnson, Co-Chair and Director, Office of Civil Rights for International Broadcasting Bureau, hosted the meeting and gave a few opening remarks.  Subsequently, she asked the attendees to give their name, agency, and position. 


VICE-CHAIR NAOMI C. EARP

Vice-Chair Earp thanked the Council leadership for inviting her a second time -- the first time that she addressed the Council was on June 22, 2004. 

She stated that investigations remain a concern.  While some federal agencies are doing a great job in this area, others have issues.  The main problem with Reports of Investigations is the framing of the issues, which, if they are not framed correctly, create problems for the subsequent steps of the administrative process and, in particular, the EEOC Administrative Judges.  In order to fix these challenges, the EEO Counselors have to get on board.  She indicated that while some collateral duty EEO Counselors are very good, the majority don't have the necessary training to do a good job. 

She recommended that all EEO Counselors -- whether they are full-time or collateral duty -- must be fully trained on framing the issues.  She has also heard anecdotal stories that some federal agencies do not issue acceptance letters -- they should be issued or the EEO Offices are setting themselves up for EEOC remands.  The EEO Investigators are like movie producers; but they must be given the script, which in EEO jargon, is the acceptance letter with the issues accepted for investigation.  If EEO Offices want to avoid EEOC remands, they must do a better job with investigations. 

In addition, she thinks that federal agencies conduct the worst investigations with disability-related issues.  She thinks that the latter is caused by the fact that the Americans with Disabilities Act of 1990 is fairly new.  Investigators, before completing the investigations, have to address the basic questions like what's the disability -- if it is one, there are certain legal questions that have to be answered.  For example, she met with some nurses at the Department of Veterans Affairs, and their questions centered on disability and age discrimination matters.  She explained that if giving CPR is an essential function of a nurse, and she(he) is not capable of providing this service because of a disability, the question to ask and research is whether the nurse can do her job and receive reasonable accommodation or not.

Vice-Chair Earp mentioned that the Senior Executives Association (SEA) and other management organizations were working on a legislative proposal to protect the rights of managers in the EEO process in the federal sector.  She indicated that the Council should be at the table with them.

Jorge Ponce, Council Co-Chair, thanked the Vice-Chair for honoring the Council with a second visit.  Then, he asked her for clarification on some of the issues that she had addressed at the June 22, 2004 Council meeting.

First, Mr. Ponce asked about the telephonic hearings at the EEOC San Antonio Office, and the Vice Chair's response was that she initially thought that this practice was "nothing more than managers managing their backlogs."  The Vice Chair stated that she thought that this practice was only a test pilot in 2004, and not a permanent general practice at San Antonio Office.   She indicated that she is not generally supportive of telephonic hearing, and only supports them when they are the only way of getting an affidavit -- like when an affiant is in the hospital.  She said that there should be several EEOC decisions rendered in May 2006 that would address this topic at length.

Next. Mr. Ponce asked about the Vice Chair's statement in 2004 that "the goal of EEOC would be how to reform the federal sector process without having to issue a Notice of Proposed Rulemaking" (NPRM).   Mr. Ponce pointed out that the EEOC Semiannual Regulatory Agenda, published in the Federal Register on April 24, 2006, had an item dealing with reforming the federal sector complaints process through an NPRM.  The Vice Chair indicated that her own personal view was that she did not think that the federal sector complaints process was broken to such a degree that it needed an NPRM to fix it.  She said that the problems were isolated ones in that some federal agencies did not provide sufficient resources to their EEO offices.  Tony Kaminski, the Vice Chair's Senior Advisor, stated that the NPRM item for the federal sector complaints process in the latest EEOC Semiannual Regulatory Agenda was a place holder -- in other words, it does not mean that something will necessarily happen.

Mr. Ponce mentioned to the Vice Chair that he still gets a lot of e-mails regarding the alleged interference by the Offices of General Counsel in the EEO process.  The Vice Chair indicated that there is a need for certain segregation between the part of OGC that  defends the agency in the EEO process and the EEO Office.  She said that Council members with this challenge could talk to her or to Carlton Hadden (Director, Office of Federal Operations) to get some one-on-one additional advice.  The Vice Chair added that even if the EEO Director is not an attorney, he(she) must provide legal advice to the agency head on civil rights matters.   Tony Kaminski mentioned that EEOC may issue additional guidance on this issue in the summer. 

Lastly, Mr. Ponce indicated that he and Ms. Johnson had met with Bill Bransford, the current SEA General Counsel, on the proposal to enhance the federal sector complaints process.  Mr. Ponce mentioned that he had told Mr. Bransford that he did not  support the establishment of a mega-court to process EEO cases and abolishing the EEOC, but that he was open to suggestions regarding the granting of some additional rights to management officials -- like notifying them after the closing of EEO discrimination complaints.  He stated that the Council had surveyed its members recently on the EEO process, and there were some questions asked on this subject.  This survey is posted in the Publications directory in the Council's webpage.

A Council member from the Department of Transportation asked whether EEOC had any plans to beef up the Affirmative Employment Division, since the latter was not a stepchild of the Compliance Division.  This Council member would like to see more affirmative action questions included in the Self-Assessment Form (Part G) of the MD-715 Report.  The Vice Chair asked Linda Jackson, from EEOC, who was attending this meeting, to pass on these comments to Carlton Hadden.

A Council member from the USDA. Forest Service would like EEOC to offer a brown-bag session on the processing of class action complaints. The Vice Chair referred this suggestion to Linda Jackson.

Milton Belardo, Senior Policy Advisor for the U.S. Department of Commerce, asked whether the brown-bag sessions could be taped.  Linda Jackson responded that EEOC lacked the resources to comply with this request; however, she said that someone could write a summary of these sessions.  The Vice Chair indicated that another federal agency could pay for the taping of these sessions.

A Council member asked the Vice Chair for her views on the reporting authority of EEO Directors.  She indicated that MD-715 encouraged EEO Directors to report to their agency heads.  In fact, at one time, the EEOC staff thought about issuing a policy statement on this topic, but concluded that this would be micromanaging the EEO offices.  However, the Vice Chair thinks that the EEO and HR Directors should report to the same management official since their work often overlaps.  In addition, she thinks that the EEO Director should report to the official who can ensure that the EEO office has the resources it needs to get their work done. 


Milton Belardo mentioned that when there are disagreements between the EEO Director and OGC, the EEO Director should prevail.  The Vice Chair stated that it is the agency head who should decide whose advice to accept or reject.  However, the advice from the EEO Director should be taken as seriously as the one offered by OGC -- considering that the EEO Director knows or should know more about EEO matters than anyone from OGC.

Delia Johnson indicated that the location of EEO Directors in agencies' organization charts was important.  For example, she mentioned that her organization named a CIO recently, and that this individual reports directly to the agency head * while the EEO Director does not.

Another Council member from the Department of Justice indicated that if the EEO Director did not report to the agency head, he(she) would not be present at high-level meetings where budgetary and other important decisions were made.  Having another management official representing the EEO Office at these meeting was not the same as being there. 

The Vice Chair stated that if the Council wanted to form a task force to deal with the reporting authority of EEO Director, she would welcome it.  However, she would like the task force members to be from large, medium, and small agencies.  She would provide the data from the 462 Report regarding the number of EEO Directors who reported to the agency heads, but asked the task force organizers to report to EEOC the reasons given by those EEO Directors who did not report to their agency heads.

Delia Johnson presented the Vice Chair with a certificate of appreciation for attending the Council meeting.  

 

U. S. Postal Service’s National EEO Investigative Services Office (NEEOISO)

 

William “Randy” Caldwell, Manager, National EEO Services, NEEOISO, gave a presentation on the investigative and FAD-writing services that NEEOISO can provide to federal agencies.

 

NEEOISO has a cadre of 100 EEO investigators and FAD writers who are the cream of the crop from the initial cadre.  In addition, 20 career analysts at USPS do the quality review of these products.  NEEOISO is based in Tampa, FLA.

 

Among the benefits of this service are: 97% of investigations are completed within 90 days of assigned date to an investigator; FAD's are completed within 30 days; and hardcopies of final products are provided , as well as a PDF version on a CD-ROM.  In the future, NEEOISA will provide digital delivery of files and web access to these files. 

 

To take advantage of this service, all that agencies have to do is sign an interagency agreement.  (Randy has sample copies of these agreements).   

 

The cost per ROI is a flat fee of $1,900 (amended complaints are $2,100, but no additional fees are charged for subsequent amendments) and $500 per FAD.  As to complaints exceeding 10 issues (typically, harassment complaints), Randy will discuss these with federal agencies separately. 

 

HUD has signed an agreement with NEEOISO recently, and three other federal agencies are negotiating their own agreements. 

 

Mr. Ponce asked Randy why federal agencies should go with NEEOISO instead of with the GSA contract.  Among the reasons that Randy listed are better quality checks, prices, and timeliness, as well as how easy it was to get out of an interagency agreement – rather than a contract – if the client was dissatisfied with the services provided.  

 

The contact persons for this service are William R. (Randy) Caldwell and Kim Lewis, who can be reached at 813 739-2002 or 813 739-2042.  Both are willing to come to DC for a formal presentation.    Randy’s e-mail is William.r.caldwell@usps.gov. 

 

Destin Enterprises, Inc.

 

Edward Crenshaw, Jr. introduced a web-based advanced tool designed to enhance the recruitment process for federal agencies. The DESTIN multi-media employment profiles allow federal agencies to target well-defined skill sets and other criterion for recruitment activity among veterans, students at HBCUs and professionals.

 

Additionally, DESTIN is the only organization to utilize assistive technologies that allow candidates to communicate their abilities over their disabilities. 

 

Registered agencies will be provided recruitment tracking profiles by RNO, as required by MD-715, with the program commencing first quarter, 2007. The cost of this service is $24,880 for unlimited use. For additional information, contact Mr. Crenshaw by e-mail at ej_crenshaw@destinenterprises.com or by phone at 301/233-7012.  The website address is http://www.destin-e.net/.

 

Interagency Working Group (IWG)

 

Milton Belardo has become the new IWG point of contact, after Gerald Lucas retired from federal service. 

 

Mr. Belardo indicated that the IWG and the Council had a better productive with the EEOC OFO staff recently.  All parties agreed that the topic for the next meeting should be the Enterprise Human Resources Integration (EHRI) initiative, and, therefore, the Office of Personnel Management should participate in this meeting. 

 

Mr. Belardo indicated that OPM was reviewing a memorandum of understanding with EEOC that when finalized would be able to produce the statistical tables for the MD-715 report.  He had contacted the EHRI executives at OPM, and they told him that the Office of General Counsel is still reviewing this MOU.  As soon as Mr. Belardo hears back from OPM, he will arrange the next meeting with the IWG, the Council, EEOC, and OPM.