U.S. Equal Employment Opportunity Commission
Office of Federal Operations
Federal Sector Programs
P.O. Box
Washington, DC 20036
[MACHINE SCANED DOCUMENT]
|
|
U.S. Equal Employment Opportunity Commission Washington, DC 20036 |
U.S. Equal Employment Opportunity Commission
Onsite Report
U.S. Department of Agriculture
Washington, DC
[MACHINE SCANED DOCUMENT]
|
|
US. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION |
David Winningham, Director
Office of Civil Rights
United States Department of Agriculture
1400 Independence Avenue, S.W.
Washington, D. C. 20250
Dear Mr. Winningham
Enclosed is the report of our June 3-7, 2002 onsite review of the United States Department of Agriculture's Office of Civil Rights. The purpose of the review was to determine the Department’s compliance with Equal Employment Opportunity (EEO) statutes, rules, regulations and the Commission’s Management Directives that govern the processing of EEO complaints.
Within 60 days of the receipt of this correspondence, please provide the undersigned with a report identifying the actions taken in response to the findings and recommendations in the enclosed report. Thank you for the courtesies and cooperation that were extended to the onsite team and your continued commitment to equal opportunity in the workplace. Please do not hesitate to contact me if 1 can be of assistance in implementing the recommendations contained in the report.
Sincerely,
Carlton M. Hadden, Director
Office of Federal Operations
Enclosure
CC:
The honorable Ann M. Veneman, Secretary
[MACHINE SCANED DOCUMENT]
INTRODUCTION
It is the policy of the federal government to prohibit discrimination in employment because of race, color, sex, national origin, religion, age or disability, and to promote the full realization of equal employment opportunity for all persons. 29 C.F.R. 1614.101. To implement this policy, each federal agency must maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate barriers to participation by all persons in the full-range of employment opportunities. The Equal Employment Opportunity Commission (EEOC) is responsible for the review and evaluation of all federal sector equal employment opportunity efforts. Pursuant to this responsibility, EEOC representatives conduct reviews of program areas involving program management personnel practices, training, and recruitment. Furthermore, EEOC periodically reviews agency equal employment opportunity (EEO) complaints processing programs. 29 C.F.R Part 1614.104(b).
EEOC provides annual reports to the President and Congress on the federal workforce and agencies' efforts to eradicate discriminatory employment practices in the workplace.
BACKGROUND
As part of the EEOC’s oversight responsibility and to ensure that the federal government becomes a model employer, the EEOC conducted a review of the equal employment opportunity program in the Office of Civil Rights, at the United States Department of Agriculture (USDA). This review was primarily conducted at the Departmental Level in Washington, D.C. However, in addition to reviewing the USDA’s Office of Civil Rights at the Departmental level, EEOC also reviewed how the USDA subcomponents (e.g., Farm Service Agency, Animal Plant Health Inspection Service, etc.) provided EEO complaint data to the USDA Office of Civil Rights at the Departmental Level, as well as what guidance and oversight this office provides the subcomponent’s EEO offices and their programs
The EEOC initiated this review because of numerous employee complaints about the efficiency, integrity, and accuracy of the USDA’s EEO complaints process, as well as the fact that the USDA is consistently late in providing EEOC with the required EEO complaint data in the Annual Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints (the 462 report).
OBJECTIVES SCOPE. AND METHODOLOGY
The EEOC’s Office of Federal Operations (OFO) conducted an onsite review to determine the extent of the USDA3s Office of General Counsel’s involvement in the EEO complaints process the effectiveness of the USDA's Alternative Dispute Resolution programs and their EEO complaints tracking system.
3 EEOC Onsite Report USDA02
U.S. Department of Agriculture
As part of the review, the EEOC requested and analyzed relevant documents. EEOC requested copies of all USDA policies and procedures for their ADR programs and the agency’s submission of ADR data for the annual report on the federal workforce. However, neither the Office of Civil Rights nor the Conflict Prevention and Resolution Center (CPRC) possessed all the subcomponent’s policies and procedures for ADR as of July 25, 2002. In addition, each subcomponent’s data on ADR which was submitted to the Office of Civil Rights for the annual report an the federal workforce, was not provided.1 In addition, EEOC interviewed agency officials and staff within the Office of Civil Rights, CPRC, and other subcomponents' EEO offices regarding their responsibilities for administering the EEO process.
Prior to the issuance of this report, on September 5,2002, EEOC staff met with staff from the USDA to discuss the results of our review and provide them a draft of our findings. By letter dated September 12,2002, the USDA, Office of Civil Rights responded to the meeting and our findings. In this letter, the Director of Civil Rights, takes issue with several aspects of the review. For instance, he states:
"USDA
is concerned that the BEOC has relied heavily upon anecdotal information and isolated incidents rather than statistical or empirical data to draw overarching conclusions about USDA’s operations."Throughout this report EEOC indicates its repeated attempts to obtain documentation from the USDA, and that the USDA’s responses were delayed, inaccurate and incomplete, The Office of Civil Rights also takes positions contrary to many of the findings and information contained therein. Furthermore, the Director of the Office of Civil Rights, in the aforementioned letter, takes issue with EEOC for not providing the names of all individuals who provided statements to EEOC during the onsite review.
As indicated herein, EEOC does however, provide titles of officials who are interviewed, For example; EEOC has identified correspondence submitted by the Deputy Director for Employment Office of Civil Rights, and statements he made to EEOC interviewers. It has long been the practice of the EEOC not to reveal the names of general staff members and employees who provide statements during interviews, because doing so could have a chilling effect on the onsite review process. More specifically, employees may be reluctant to meet With EEOC interviewers out of fear of retaliation from the agency if their names
are attributed to their statements. The practice of not providing names encourages greater participation and willingness on the part of interviewees to speak freely and honestly-wit EEOC about practices and policies occurring at their agency. In turn,
4
EEOC Onsite Report USDA02
this allows EEOC to gain an adept understanding of the agency being reviewed, and assists us in providing the agency with useful practical advice an how to improve their programs.
FINDINGSAND RECOMMENDATIONS
Finding 1
The defensive functions of the USDA’s Office of General Counsel intrude on The investigation and deliberation of EEO complaints.
Equal Employment Opportunity Commission Management Directive for 29 C.F.R Part 1614 (MD-110), chapter 1,I-2pg. (November 9, 1999), requires that agencies have a complaint process where the neutral adjudication function of the agency’s EEO office is kept separate from the legal defense arm of the agency. Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and the offices responsible for defending the agency against EEO complaints. Furthermore legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints. Id.
The Office of General Counsel, CMI Rights Division, which is responsible for defending the agency against complaints of discrimination, intrudes in the EEO process prior to a request for a hearing. Documents and interviews with officials and staff from the Office of Civil Rights and the Office of General Counsel, indicate that representatives from the Office of General Counsel, Civil Rights Division, intrude in the following areas of the EEO complaint process: (a) the investigation of formal EEO complaints; and (b) the deliberations on EEO complaints. The intrusion of the Civil Rights Division during the investigation of and deliberation on EEO complaints is contrary to the spirit and language of MD-1 10.
a. Investigations.
Interviews with staff from the Office of Civil Rights reveal that this office seeks guidance from the Office of General Counsel, Civil Rights Division (which is responsible for defending the agency against EEO complaints) in difficult EEO cases. Moreover, staff from both the Complaints Division and the Office of General Counsel acknowledged that in one case the Office of General Counsel wrote a letter critical of an investigation, which according to staff from the Office of General Counsel, resulted in the USDA having to settle the case. An official in the Office of Civil Rights stated that the Office of General Counsel has the right by regulation or otherwise to do legal sufficiency reviews of the reports of investigation prior to their issuance, but does not exercise this right. The only regulation which may provide for such a review is 7 C.F.R. § 2.31(2002).
5 EEOC Onsite Report USDA02
U.S. Department of Agriculture
Legal sufficiency reviews of EEO reports of investigations by the Office of General Counsel, civil Rights Division is inconsistent with MD-1 10, because this unit will provide representation to the agency regarding the same complaint. Furthermore any binding advice the Office of Civil Rights receives from the Office of General Counsel, Civil Rights Division concerning EEO complaints is also inconsistent with MD-1 10, because this unit will provide representation to the agency regarding the same complaint. An arrangement of this nature can compromise the neutrality of the administrative process both in appearance and in reality. A system with a real or perceived absence of neutrality has a chilling effect on individuals seeking to exercise their rights through the EEO process.
b. Deliberations.
The Office of General Counsel, Civil Rights Division, and the Office of Civil Rights, Adjudication Division, acknowledged that the Office of General Counsel, Civil Rights Division, which defends the agency against EEO complaints, provides binding advice on whether to appeal an EEOC Administrative Judge’s decision on class certifications. This very same unit within the Office of General Counsel also reviews every decision, prior to its issuance, where there is a finding of discrimination
In cases where there is a decision or final action finding discrimination, the Office of General Counsel, Civil Rights Division will review each decision prior to issuance, In such cases, an Office of General Counsel, Civil Rights Division attorney writes a memo advising on the decision. In one particular ease discussed with EEOC staff, the Office of Civil Rights indicated that the Office of General Counsel, Civil Rights Division, actually rewrote the Final Agency Decision.
Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and the offices responsible for defending the agency against EEO complaints. Furthermore, legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints. Id. Therefore, the Office of General Counsel, Civil Rights Division’s binding advice concerning class certifications and their legal sufficiency reviews of all decisions involving a finding of discrimination is contrary to MD-1 10, because this unit will have provided representation to the agency regarding the same complaint
Recommendation 1
The USDA must take the necessary steps to ensure that there is the proper separation between the Office of General Counsel Civil Rights Division, and the Office of Civil Rights. The USDA must ensure that the Office of General Counsel, Civil Rights Division, does not provide legal sufficiency reviews of reports of investigation and final agency decisions/actions. Furthermore, the Office of
6 EEOC Onsite Report USDA02
U.S. Department of Agriculture
General Counsel, Civil Rights Division, should not provide binding advice to the Office of Civil Rights concerning EEO complaints. The USDA may consider utilizing a unit separate and apart from the Civil Rights Division in the Office of General Counsel to provide legal sufficiency reviews of EEO complaints.
Finding 2.
The Office of General Counsel, Civil Rights Division’s involvement in the informal stage of the EEO process impedes opportunities for settlement
According to an internal memorandum from the Associate General Counsel, dated May 10, 2001, the Office of General Counsel, Civil Rights Division, mandates that the office provide representation in the following EEO cases:
1. The complaint is filed in Federal district court against a USDA agency headquarters in the District of Columbia metropolitan area;
2. Allegations in the complaint identify a member of the Senior Executive Service (SES) as the Responsible Management Official (RMO);
3. Allegations in the complaint involve a non-selection to the SES or SES Candidate Program;
4. The complaint is filed as a class action raising the allegations of disparate impact or disparate treatment or
5. The complaint involves novel, complex, or sensitive legal issues such as sexual harassment, hostile work environment, or mixed case appeals before the Merit Systems Protection Board (MSPB). With respect to cases before the MSPB, the Civil Rights Division will coordinate with the Office of General Counsel’s General Law Division to determine if the Office of General Counsel representation is appropriate.
Interviews with officials and staff from a USDA subcomponent EEO office also revealed that pursuant to the above memorandum, responsible management officials, who are members of the Senior Executive Service or are political appointees (which are not mentioned above), when approached by an EEO Counselor, will defer the matter to the Office of General Counsel and will not speak with the EEO Counselor.
7 EEOC Onsite Report USDA02
U.S. Department of Agriculture
EEOC Regulation 29 C.F.R § 1614.1 02(b)(6) requires that all agencies ensure that full cooperation is provided by all agency employees to EEO Counselors and agency EEO personnel in the processing and resolution of pre-complaint matters. Furthermore EEOC regulations encourage voluntary settlement of employment discrimination disputes. See, 29 C.F.R. § 1614.603. Specifically, all agencies should make reasonable efforts to settle EEO complaints as early as possible in the administrative process, including the pie-complaint counseling stage. Id. EEO counseling can, and often does, provide an excellent way to resolve employment discrimination disputes early in the process.
The Office of General Counsel’s involvement during the informal stage of the EEO process may thwart attempts at counseling to resolve matters prior to the fling of a formal complaint where the parties may be willing to settle. In addition, when responsible management officials defer an EEO matter to the Office of General Counsel and/or will not speak with the EEO Counselor, they are not cooperating with agency EEO personnel. Therefore, any involvement by the Office of General Counsel during the informal stage of the EEO process should not interfere with EEO Counselors performing their duties, prevent agency employees from cooperating with the Counselors, and should be conducted in a fashion as not to hinder attempts for settlement.
In response to EEOC’s draft report the USDA’s General Counsel, issued a memorandum dated September 11,2002, to the Assistant Secretary for Administration, the General Counsel states:
"OGC agrees that USDA and its agencies should make reasonable efforts to resolve EEO complaints as early as possible in flat administrative process."
"OGC is extremely successful in early resolution of cases where there is evidence of discrimination. OGC makes every effort to resolve such cases as the earliest stage possible, as this is in the best interests of both USDA and the complainant."
"Therefore, OGC is committed to early resolution of employment discrimination complaints where there is evidence of discrimination or other improprieties, but not in cases where even a cursory review indicates the complaints have little or no merit."
As previously discussed, EEOC encourages Settlement of EEO disputes at the earliest possible stages of the administrative process. EEOC is pleased to see that the General Counsel for the USDA also agrees. EEOC, however, is concerned that the USDA is only settling cases where there is evidence of discrimination or other improprieties. Taking this approach may cause the USDA to experience
8 EEOC Onsite Report USDA02
U.S. Department of Agriculture
low resolution rates during the informal and formal complaint stages of the EEO process.2 Moreover, such a policy may needlessly stigmatize the utilization of ADR by managers who may view any settlement as evidence of discrimination or impropriety.
Inmost EEO complaints, evidence of discrimination is not apparent until after a formal investigation has occurred or until after a hearing before an EEOC Administrative Judge is conducted. Utilizing this method for settling eases is contrary to EEOC’s regulation that all agencies should make reasonable efforts to settle EEO complaints as early as possible in the administrative process, including the pre-complaint counseling stage. 29 C.F.R. § 1614.603.
Only settling cases where there is evidence of discrimination, will preclude the USDA from resolving disputes which nonetheless can negatively impact the moral, productivity and efficiency of the agency if left unresolved. Furthermore, this approach may fall short of the policy goals of the Administrative Dispute Resolution Act of 1996, which authorizes federal agencies to utilize dispute resolution techniques to resolve disputes mid avoid costly and protracted litigation. See, Pub. Law 104-320 (1996).
Recommendation 2
The USDA should ensure that all USDA employees cooperate at all stages of the EEO process, and that all opportunities to settle complaints are considered, and that opportunities for settlement are not obstructed by the Office of General Counsel, Civil Rights Division. The USDA should clarify their May 10; 2001, memorandum to indicate that although the Office of General Counsel, Civil Rights Division may provide representation in certain cases upon request of a witness, this does not relieve responsible management officials from their duty to speak or cooperate with an EEO Counselor.
Finding 3
There is a lack of coordination between the Office of Civil Rights and the Conflict Prevention Resolution Center for ADR program operations.
The USDA is a cabinet-level agency comprised of 26 subcomponents and the Departmental Administrative offices. Each subcomponent has been delegated the authority to develop and manage its own EEO program in accordance wit the policies, guidelines, and directives promulgated by the Office of Civil Rights. See USDA Departmental Regulation 4330-003, §7(d)(4) (March 3,1999). With regard to ADR, which is conducted pursuant to the EEO process, each- subcomponent may establish its own ADR program and is responsible for reporting to the Department at least annually
__________________________________
2settlement rate because of errors contained in
2
EEOC cannot with any certainty discern USDA’s settlement rate because of errors contained in their statistical information provided to EEOC for the 462 report as well as for this review. The inaccuracies in the data collection and submission for ADR matters is discussed in Finding 3 of this report.
9 EEOC Onsite Report USDA02
U.S. Department of Agriculture
on agency ADR programs and usage. See USDA Departmental Regulation 4710-001, § 6(a)(2) (July 20, 2001).
The Assistant Secretary for Administration is responsible for evaluating the ADR programs. See USDA Departmental Regulation 4710-001, §6(b). The departmental regulations provide two different offices with roles for overseeing the ADR programs. In Section 7(b)(2) of USDA Departmental Regulation 4330-003, the Assistant Secretary for Administration delegates to the Director, Office of Civil Rights, full and comprehensive responsibility for the day-to-day management and administration of the Department’s civil rights compliance and enforcement activities. Section 6(c) of USDA Departmental Regulation 4710-001 also requires the Director, Conflict Prevention and Resolution Center monitor agency ADR programs, track usage, determine compliance with Departmental standards, and report at least annually to the Secretary on ADR activities.
According to interviews with numerous Office of Civil Rights arid Conflict Prevention and Resolution Center staff members, it is clear that employees think that there is inadequate communication between the Office of Civil Rights and the Conflict Prevention and Resolution Center regarding ADR that is conducted during the EEO process. The Office of Civil Rights’ Deputy Director for Employment, disagreed, stating that there are "pretty good" lines of communication between the Conflict Prevention and Resolution Center and the Office of Civil Rights, and that those offices have never had any issues or disputes in terms of who has what data or sharing information.
Many other USDA employees, however, have recognized a breakdown in communication between the two offices. For example, one Conflict Prevention and Resolution Center employee stated that the Conflict Prevention and Resolution Center and the Office of Civil Rights have not shared data due to turf battles. An Office of Civil Rights employee also stated that turf battles exist and officials and staff from the Farm Service Agency (FSA) and Animal and Plant Health Inspection Service (APHIS) identified the problem as a power struggle.
Based an interviews and documents provided to the EEOC, it is clear that the Conflict Prevention and Resolution Center and the Office of Civil Rights have difficulties coordinating two critical ADR functions: (a) oversight of the subcomponents’ ADR programs; and (b) ADR data collection
a. Oversight of Subcomponents’ ADR Programs
As to the oversight of the subcomponents’ ADR programs, it is unclear whether the Conflict Prevention and Resolution Center and the Office of Civil Rights have determined which office has the responsibility to ensure that the agency’s ADR programs are in compliance with 29 C.F.R Part 1614. Section 7(b)(4) of the USDA Departmental Regulation 4330-003 provides that the Assistant Secretary for Administration is responsible for systematically reviewing and evaluating the civil rights performance of agency heads and administrators. Section 7(b)(2) of that regulation delegates
10 EEOC Onsite Report USDA02
U.S. Department of Agriculture
some of the enforcement authority to the Director of the Office of Civil Rights; however, section 6(e) of USDA Departmental Regulation 4710-001 also requires the Director of the Conflict Prevention and Resolution Center to monitor agency ADR programs and determine compliance with Departmental standards
An employee from the Conflict Prevention and Resolution Center stated that it is unclear which office has enforcement authority over the subcomponents’ ADR programs. This employee explained that the Conflict Prevention and Resolution Center is responsible for case tracking, but not supervising the ADR programs. An Office of Civil Rights official indicated tat the Office of Civil Rights has authority over ADR programs as they relate to civil rights issues. However, when the EBOC requested copies of the ADR procedures for every subcomponent an June 4,2002, the Office of Civil Rights did not have those procedures and initially attempted to obtain the documents from the Conflict Prevention and Resolution Center? When the Conflict Prevention and Resolution Center produced only two ADR procedures, one from the Conflict Prevention and Resolution Center and one from the Food, Nutrition, and Consumer Services (FNCS), the Office of Civil Rights had to request the procedures directly from the subcomponents.
In October2000, the USDA issued its Long Term Improvement Plan for the Office of Civil Rights’ Employment and Program functions. This plan did not specifically address the ADR process; however, section 3(8.1) of the plan found tat the Office of Civil Rights is required to conduct numerous planned and ad-hoc compliance reviews annually without sufficient staff appropriately trained staff or permanent procedures in place. In order to resolve these problems, the plan recommends centralizing management of the-compliance function for Programs and Employment, establishing standard procedures for compliance function, and establishing criteria for which compliance reviews will be performed.
Numerous USDA employees stated that as of July 2002, neither the Office of Civil Rights nor the Conflict Prevention and Resolution Center has reviewed any of the subcomponents’ ADR programs for compliance with 29 C.F.R. Part 1614 and MD-1l0, An Office of Civil Rights official commented that the subcomponents are protective of their programs and that the Office of Civil Rights will require additional resources to conduct operations with the subcomponents. However, officials and staff from FSA and APHIS stated that they provided their ADR procedures to the Office of Civil Rights for review, but they have yet to receive any feedback.4 One APHIS employee stated that it has been approximately thirteen years since the Office of Civil Rights has conducted
________________________________________________
4
Even though APHIS and FSA stated they submitted their ADR procedures to the Office of Civil Rights in FY2000, the Office of Civil Rights failed to provide those procedures to EEOC during and subsequent to this onsite review.
11 EEOC Onsite Report USDA02
U.S. Department of Agriculture
a compliance review. ‘While it is possible that some subcomponents maybe protective of their ADR programs, it appears that neither the Office of Civil Rights nor the Conflict Prevention and Resolution Center has made any effort to review the sub components’ ADR procedures.
As a direct result of USDA’s failure to monitor the ADR programs, the subcomponents have a negative view toward the Office of Civil Rights and the Conflict Prevention and Resolution Center. With respect to the Office of Civil Rights, the primary complaint involves the Office of Civil Rights repeated requests, with a short turnaround time, for ADR and other information which the subcomponents have previously provided the Office of Civil Rights. A frustrated APHIS employee wondered what the Office of Civil Rights does with ADR data. In this regard, the Director, Office of Civil Rights, confirmed in a memorandum dated July 8, 2002 that "there is presently no central repository" for ADR information
The Office of Civil Rights’ inability to locate previous submissions and contentious that those submissions were never received have resulted in the APHIS engaging the costly practice of submitting every report to the Office of Civil Rights via Federal Express so they can document which Office of Civil Rights employee received the package, as well as the specific date and time of its receipt. Another complaint involves the Office of Civil Rights’ failure to provide guidance or feedback to the subcomponents
In particular, FSA and APHIS officials noted that the Office of Civil Rights lacks knowledge about ADR and has poor customer service skills. An APHIS employee complained that since the Office of Civil Rights staff rarely responds to their requests for assistance, they seek guidance from USDA’s Office of General Counsel or the EEOC. To illustrate the lack of confidence in the Office of Civil Rights, in July 2002, an APHIS employee contacted the EEOC to determine whether it should comply with the Office of Civil Rights’ request to submit ADR data.5 An FSA employee explained that most of the subcomponents "do what they want to do" because they have no accountability to the Office of Civil Rights.
As to the Conflict Prevention and Resolution Center, some of the subcomponents expressed confusion about the role that the Conflict Prevention and Resolution Center plays in the oversight of their ADR programs. Based on the belief that the Conflict Prevention and Resolution Center was created to resolve non-EEO issues, an APHIS official questioned why the Conflict Prevention and Resolution Center participates in EEO-related functions. An FSA employee also commented that the Conflict Prevention and Resolution Center has not obtained buy-in among the subcomponents, as evidenced by very few EEO people attending the Conflict Prevention and Resolution Center’s meetings. Moreover, APHIS and FSA have become frustrated by the inability of the Conflict Prevention and Resolution Center and the Office of Civil Rights to share ADR data.
_______________________________
5The Office of Civil Right requested all subcomponents to provide their ADR procedures and the names of’ the individuals who chose ADR pursuant to the EEOC’s request in June 2002.
12 EEOC Onsite Report USDA02
U.S. Department of Agriculture
Furthermore, based upon the procedures set forth in USDA Departmental Regulation 4710-001, the Conflict Prevention and Resolution Center is required to evaluate the USDA’s ADR programs or an annual basis. Currently, the Conflict Prevention and Resolution Center currently evaluates three areas of the ADR programs in the EEO process, including the number of’ complainants that were offered ADR, the number of complaints that went through ADR, and the number of complaints which were settled in ADR. This data is compiled in an Annual Report to the Secretary of Agriculture.
According to interviews with the Conflict Prevention and Resolution Center staff, customer satisfaction surveys are utilized by some subcomponents, but this data has not been collected by the Conflict Prevention and Resolution Center. A Conflict Prevention and Resolution Center employee stated that as of October2002, it expects to contract with the University of Indiana to collect ADR data and conduct evaluations.
Chapter 3, Section VII(C) of the MD-1 10 sets forth that an evaluation component is essential to any successful ADR program. Currently, the USDA does not have a sufficient method in place to evaluate the ADR programs in the EEO process.
b. ADR Data Collection
Under 29 C.F.R § 1614.602(a), the USDA has an obligation to report to the Commission information concerning pre-complaint counseling and the status, processing, and disposition of complaints under this part at such times and in such manner as the Commission prescribes. The Commission has mandated that agencies report all ADR data relating to the EEO process in their annual 462 report to the EEOC. As such, agencies should have a case tracking system to gather data for the 462 report. In response to question 13 of the EEOC’s Request for Information (April 23, 2002), the Office of Civil Rights stated:
"It is expected that the new Employment Complaints Tracking System (ECTS) will capture all ADR related data for all employment complaints received on or after April 24, 2002."
Pursuant to subsequent interviews with Office of Civil Rights employees, it appears that ECTS only captures ADR data for the formal stage of the EEO process, and is not expected to include ADR data for the informal stage for at least twelve months. Thereafter, it is unclear as to how the information will be transmitted to the Office of Civil Rights. Consequently, the Office of Civil Rights relies on the subcomponents to maintain independent case tracking systems. Since the Office of Civil Rights has not required a standard data collection system, the subcomponents have a wide variety of systems, including electronic and manual data collection systems. One FSA employee stated that almost all subcomponents have a system; however, employees from FSA and APHIS commented that there is no accountability it’ subcomponents fail to establish a data collection system.
13 EEOC Onsite Report USDA02
U.S. Department of Agriculture
According to USDA staff, the Office of Civil Rights and the Conflict Prevention and Resolution Center have failed to properly communicate their respective duties with regard to the process of collecting ADR data for the annual 462 report. This has caused tremendous confusion among the subcomponents. In fiscal year 2000, the USDA failed to provide EEOC with all of the ADR data it requested. When the EEOC onsite review team spoke with staff from the Office of Civil Rights and the Conflict Prevention and Resolution Center about the missing data, an Office of Civil Rights employee stated that the agency did not collect the data. A Conflict Prevention and Resolution Center employee explained that they had not seen the 462 report and the Office of Civil Rights had never requested the data from the Conflict Prevention and Resolution Center. To date, the missing data has not been provided to the EEOC.
Similarly, in fiscal year 2001, there were numerous problems with the USDA’s data collection process. In collecting the ADR data for this reporting period, an Office of Civil Rights employee stated that the Office of Civil Rights requested the information from the Conflict Prevention and Resolution Center, but never received it. As a result the Office of Civil Rights submitted a form to each of the subcomponents, requesting the 462 data for their ADR programs. The form that APHIS received did not contain the new ADR questions for the fiscal year 2001 reporting period, and an APHIS employee stated that the Office of Civil Rights did not subsequently request the missing information.6 Therefore, the USDA’s consolidated 462 report did not contain APHIS’ data, or the other subcomponents’ data for those missing questions. Furthermore, the Office of Civil Rights did not provide FSA
or APHIS with any guidance for completing the 462 report according to interviews with officials from these subcomponents. Due to this lack of direction, the ADR data that was submitted by FSA and APHIS for fiscal year 2001 contained numerous errors. USDA employees confirmed that the Office of Civil Rights did not verify the ADR data for APHIS; FSA and Food Nutrition Service (FNS).In particular, APHIS’ data for Part X of the
462 report contained many obvious inconsistencies between the number of ADR Resources Used, the Types of ADR Techniques, and the Type of Closures, In Part X, Section 5(A) of the 462 report, APHIS and FSA included a total of five cases that received "other non-monetary relief," but USDA's consolidated 462 report did not refer to any of those cases. An APHIS employee stated that the Office of Civil Rights must have modified the ADR data without consulting the subcomponents. In addition, an Office of Civil Rights employee stated that the Office of Civil Rights modified some of the 462 data to be consistent with an earlier report submitted to Congress.According to an employee in the Office of Civil Rights, some fiscal year 2001 data had not been entered into the case tracking system at the time of a report to Congress, and the Office of Civil Rights made the decision to exclude that new data from the 462 report for the sake of consistency.
_______________________________
14 EEOC Onsite Report USDA02
U.S. Department of Agriculture
Once the Office of Civil Rights completed the 462 report, an Office of Civil Rights employee stated that a copy of the report was sent to the Conflict Prevention and Resolution Center, however the Conflict Prevention and Resolution Center denied ever receiving the report. Based upon all of the factors
cited above, the evidence suggests that due to the lack of coordination between the Office of Civil Rights and the Conflict Prevention and Resolution Center the USDA submitted an untimely 462 report which appears to contain inaccurate ADR data.As previously indicated, in June 2002, EEOC requested copies of all the subcomponents’ FY200l
forum 462 reports containing ADR data submitted to the Office of Civil Rights. By letter dated
August 23, 2002, over two months later, the EEOC received from the Deputy Director for
Employment Office of Civil Rights, individual subcomponent ADR 462 reports. His letter states:
"In accordance with the follow-up request made by your review team while they were on-site, please find enclosed the documentation our office received from sub agencies which we used to develop the FY 2001 EEOC 462 report?’
Upon review of the reports which were enclosed, we discovered that there were only twelve (12) reports when EEOC was informed that there were a total of twenty-six (26) subcomponents/sub agencies. Moreover, we found that three (3) of the reports were duplicates and three (3) could not be attributed to a particular subcomponent According to the consolidated 462 report submitted to EEOC, one hundred sixty-five (165) individuals elected ADR in the informal stage of the EEO process. The individual 462 reports submitted on August23, 2002, however, indicated that only one hundred thirty-seven (137) individuals elected ADR in the informal stage of the EEO process. This number excludes the three (3) duplicate reports. However, when including the three (3) duplicate reports, the number of individuals electing ADR in the informal stage is only one hundred fifty-two (152).
This submission indicates that either the USDA’s5 Office of Civil Rights’ consolidated 462 report submitted to EEOC was inaccurate, or the August 23, 2002, submission did not include all the documentation received from subagencies, which was used to develop the FY 2001 EEOC 462 report, or both.
Furthermore, by letter dated September 6,2002, the USDA, Office of Civil Rights, Deputy Director for Employment enclosed additional documentation requested by EEOC in June 2002. This letter states in pertinent part
"One focal point of the EEOC audit (as follow-up to question 16(e)), was the extent to which USDA used Alternative Dispute Resolution (ADR) at the informal stage of the EEO process. As CR is presently without a central repository for this information, we requested that USDA sub-agencies provide this office with the following information
15 EEOC Onsite Report USDA02
U.S. Department of Agriculture
Enclosed is a compilation of data from each USDA agency at the informal stage of the EEO counseling and ADR process. Also enclosed are the forms, operating procedures, brochures, and other materials utilized by each agency."
Contained within the August23, 2002 submission to EEOC was the FY200l 462 report for ADR submitted by APHIS to the USDA, Office of Civil Rights, which indicated that 54 APHIS employees selected ADR in the informal stage of the EEO process, and that 22 ADR sessions were conducted in FY200l. The September 6, 2002 submission, however, does not indicate that any APHIS ‘employees underwent ADR in FY 2001. It is clear from the above two submissions that the USDA, Office of Civil Rights, has not submitted reliable data to EEOC for the annual 462 report for FY2001 and for this onsite review?
With respect to fiscal year 2002, two Office of Civil Rights employees stated that their office has an unofficial agreement with the Conflict Prevention and Resolution Center that the Conflict Prevention and Resolution Center will collect the ADR data for the 462 report. In this regard, we have no evidence that the Office of Civil Rights has made a formal, written request of the Conflict Prevention and Resolution Center to collect the data. When asked what would happen if they did not provide the ADR data to the Office of Civil Rights, an Office of Civil Rights employee explained that similar to fiscal year 2001, the Office of Civil Rights would request the data directly from the subcomponents. The Conflict Prevention and Resolution Center staff deny ever receiving a request from the Office of Civil Rights to provide ADR data for the 462 report, and claim that they have never received a copy of the 462 report from the Office of Civil Rights.
____________________________
7We also note that according to the September 6, 2002 submission, employees from only nine (9) USDA subcomponent underwent ADR in FY 2001, when according to the USDA there are twenty-six (26) subcomponents. Furthermore, the USDA, Office of Civil Rights, as indicated above, claims to have submitted the ADR forms, operating procedures, brochures and other materials utilized by "each agency". However, upon review of the material submitted, EEOC realized that material from only six (6) subcomponents was submitted as opposed to twenty-six (26). Furthermore, in either submission, there was no communication from the USDA as to the apparent lack of documentation.
16 EEOC Onsite Report USDA02
U.S. Department of Agriculture
Currently, the Conflict Prevention and Resolution Center reports that it collects ADR data an the following categories; (1) the number of cases that were offered ADR; (2) the number of cases that completed ADR; (3) the number of cases that were resolved; and (4) the number of employees who
received conflict management training As such, the Conflict Prevention and Resolution Center has not modified its data collection process to include any new ADR data for the purpose of completing the 462 report. The Office of Civil Rights, in its response to the draft report indicates that the Conflict Prevention and Resolution Center has modified its report to capture the new ADR data. The Office of Civil Rights, however, provided no documentation of this change.Until the USDA provides guidance and oversight with respect to the subcomponent’s ADR
programs, the USDA will continue to experience inaccuracies in their data collection, turf battles or power struggles, and poor employee and staff perceptions of the Office of Civil Rights and the Conflict Prevention and Resolution Center.Recommendation 3
To ensure compliance with 29 C.F.R.
§ 1614.102(a)(II) and § 1614.602(a), and to correct and improve data collection, the USDA (Office of Civil Rights and the Conflict Prevention and Resolution Center) should establish a sufficient process to monitor its ADR programs. We recommend the USDA implement the following:
17 EEOC Onsite Report USDA02
U.S. Department of Agriculture
Finding 4
All EEO settlement agreements are reviewed by the Office of Human Resource Management for possible disciplinary action against responsible management officials.
Our review revealed that the USDA has taken positive steps to hold managers and supervisors accountable for engaging in policies and/or practices which violate the laws the EEOC is charged with enforcing. For example, on June 29, 2000, Dan Glickman, the former U.S. Secretary of Agriculture, delivered remarks on "Civil Rights 2000: A Continuing Journey." USDA Release No. 0213.00. In an effort to further enhance the agency’s "ability to enforce civil rights and improve human relations," Secretary Glickman stated that "all civil rights settlements will automatically be referred to agency human resources people who will decide what, if any, further action to take"
concerning future discipline of managers. The settlement agreements will be forwarded along with the entire complaint file for review, and based on all available information, action may be taken.While recognizing that
this procedure is not intended "to deter people from using the settlement process to resolve claims," Secretary Glickman asserted this procedure is necessary to "achieve greater accountability" by preventing "bad actors" from entering into settlement agreements to avoid possible disciplinary action. However, this process along with the position of the General Counsel, as described in finding 2, can deter managers from engaging ADR because only cases with merit are settled, thus increasing the likelihood that the manager(s) will be disciplined.
18 EEOC Onsite Report USDA02
U.S. Department of Agriculture
One Conflict Prevention and Resolution Center employee confirmed that the procedure described in Release No. 0213.00 requires OHRM to be notified of any settlement agreements in order to evaluate whether disciplinary actions should be pursued concerning the responsible management official (RMO). In addition to reviewing settlement agreements, the USDA should review all EEQ complaint files regardless of the type of resolution reached (e.g., a finding of discrimination, a withdrawal, or a settlement), which will further the spirit of the "NO FEAR" bill and will broaden the USDA’s ability to ensure that those who engage in inappropriate behavior do not escape detection.
The EEOC recognizes that the EEO program has a duty to provide the agency head with recommendations as to any improvements or corrections needed, including remedial or disciplinary action with respect to managerial supervisory or other employees who have failed in their responsibilities. See 29 C.F.R.
§ 1614.1 02(e)(2). While it is necessary to monitor the EEO process in order to determine whether supervisors have failed in their responsibilities, it is also important to ensure that such oversight does not adversely impact the ADR process, which ideally, should be a no-fault process. In this regard, 29 C.F.R. § 1614.603 requires agencies to make reasonable efforts to voluntarily settle complaints of discrimination as early as possible in and throughout, the administrative processing of complaints, including the pre-complaint counseling stage.Recommendation 4
We applaud
USDA’s holding managers accountable for their actions and disciplining them where appropriate, and we believe this can be accomplished without discouraging participation in the settlement of EEO matters. As discussed above, we recommend that the USDA review all EEO complaint files regardless of the type of resolution reached (e.g., a finding of discrimination, a withdrawal, or a settlement) and take disciplinary action when appropriate.Finding 5
The USDA does not provide clear guidance to EEO counselors as to when they should offer
ADR to aggrieved employees seeking EEO counseling.According to interviews with staff from the Office of Civil Rights and the Conflict Prevention and Resolution Center, it was unclear as to who makes the decision to offer ADR during the informal stage of the EEO process. One Office of Civil Rights employee commented that the decision to offer ADR could be made by the Office of Civil Rights, Office of Human Resources, or a line manager. The Deputy Director for Employment, Office of Civil Rights stated that the EEO counselors should offer ADR in 100 percent of all informal matters, except those involving class actions. He also stated that the subcomponents have the discretion to decide how the offer of ADR is made.
19 EEOC Onsite Report USDA02
U.S. Department of Agriculture
In Chapter IV, Section 8(a) of the USDA Departmental Manual (DM) 4300-001 (July 20, 2001), it states that the USDA’s subcomponents shall offer ADR with limited exceptions, as an alternative to traditional counseling in the informal EEO process. The decision not to offer ADR must be fair, equitable, and consistent with Departmental ADR policy. Chapter III, Section 4 of DM 4300-001 clarifies that management may not decline to offer ADR because of the complaint basis (race; color, etc.).
During this review, the EEOC contacted some of the USDA's EEO counselors who have been contracted from Delany, Siegler and Zorn Two counselors stated that they have not received any training on ADR and know very little about the USDA’s ADR program. One of those counselors commented that she does not offer ADR at the informal stage; rather, the subcomponents make the offer Another EEO counselor said tat she had extensive ADR training, but did not state whether she offered ADR.
The Conflict Prevention and Resolution Center also indicated that it does not know how ADR was being offered to aggrieved employees. In the ‘FY 2001 Annual Report for the Secretary of Agriculture: Alternative Dispute Resolution" (Apr11 2002), the Conflict Prevention Resolution Center found that ADR was offered in 706 complaints at the informal stage. The USDA’s form 462 report submitted to EEOC indicates that 1,509 individuals were counseled during fiscal year 2001. These reports reviewed together reveal that USDA offered ADR to only 47 percent of the individuals who sought counseling. When the Deputy Director for Employment, Office of Civil Rights, was asked to comment on the significant difference between the Office of Civil Right's goal of a one hundred (100) percent offer rate and the actual forty-seven (47) percent offer rate, he stated that the Office of Civil Rights has not yet compared the Conflict Prevention and Resolution Center’s report to the 462 report, and could not otherwise explain the discrepancy.
Furthermore, an enclosure to a letter dated September 12,2002, to the EEOC, from the USDA’s Director, Office of Civil Rights, states in pertinent part, that:
"no subcomponent has excluded any issues. This offer [of ADR] is to be in writing. This guidance is well beyond what MD-110 requires."
This assertion, however, is in direct contradiction to statements made by officials at the APHIS who claim that ADR is not offered in complaints which raise the issue of sexual harassment. Furthermore, USDA regulations for its ADR programs are silent as to whether they must provide reasonable accommodations to those who participate in the ADR process.
Chapter 3, Section II(A)(5) of MD-110 provides that agencies have the discretion to determine whether a given dispute is appropriate for ADR; however, pursuant to Chapter 3, Section VI(A) of MD-110, agencies must establish written procedures detailing the operation of its ADR program. Until procedures and guidance are provided to subcomponents, regarding what cases are appropriate for ADR and that reasonable accommodations must be provided to those who participate in the ADR
20 EEOC Onsite Report USDA02
U.S. Department of Agriculture
process, the USDA may not realize the full benefits of an ADR program for resolving disputes. The USDA may also continue to experience low rates of ADR offerings to aggrieved employees and possible complaints for failure to accommodate.
Recommendation 5
The USDA should issue written guidance on the method in which ADR is offered to aggrieved employees and complainants, specifying categories of matters for which ADR will be offered and those for which ADR will not be offered and that reasonable accommodations will be provide for qualified individuals. This information should be contained in informational brochures about the agency’s ADR program. In addition, USDA should ensure that all EEO counselors, including contract Counselors are trained in the agency’s ADR process. See MD-110, Chapter 2, Sections I and II.
Finding 6
USDA procedures do not require that all ADR neutrals receive training in EEO law.
According to Chapter III, Section 4 of DM 4300-001, ADR in the EEO complaint process will adhere to the USDA ADR policy set forth in Departmental Regulation 4710—001 (July 20,200]). In Section 5(D) of DM 4710-001; the regulation establishes the standards necessary to qualify as a neutral in the USDA. These standards do not state whether neutrals are required to have training in EEO law. Employees from the Office of Civil Rights and the Conflict Prevention and Resolution Center confirmed that the departmental regulations do not require neutrals receive training in EEO law. However, staff from the Conflict Prevention and Resolution Center stated that it is the Conflict Prevention and Resolution Center’s practice to contract with neutrals who have a background in EEO law and that the Conflict Prevention and Resolution Center wants to bold internal neutrals to the same standards as contract neutrals.
Interviews with EEO staff from FSA and APHIS1 revealed that these subcomponents utilize EEO counselors as mediators. Similar to the Conflict Prevention Resolution Center, it would appear that these mediators are familiar with EEO law. Whether all the remaining subcomponents require neutrals to receive training in EEO law, EEOC could not determine without reviewing their ADR procedures (which were never provided to EEOC during the review) and interviewing their program managers, With respect to Counselor’s acting as neutrals, EEOC discourages this practice. Utilizing Counselors as neutrals may create a perception of bias in favor of the agency. Furthermore, neutrals are often privy to confidential information which may compromise their ability to serve as a Counselor. Therefore, Counselors should only serve as neutrals in a last resort situation. See MD110, Chapter 3, Sections IX.
21 EEOC Onsite Report USDA02
U.S. Department of Agriculture
Chapter 35 Section IV(B)(2) of the MD-110 provides that any person who serves as a neutral in the agency’s ADR program must be familiar with: (a) the entire EEO process pursuant to 29 C.F.R. Part 1614, including time frames; (b) the Civil Service Reform Act, Title VII of the Civil Rights Act of 1964, as amended (Title VII), the Rehabilitation Act of 1973, as amended, the Americans with Disabilities Act (ADA), the Age Discrimination Act of 1967, as amended (ADHA), and the Equal Pay Act of 1963 (EPA); (c) the theories of discrimination; and (d) the remedies available, including compensatory damages, costs and attorney’s fees.
Recommendation 6
The USDA should modify its regulations and practices to ensure tat its training requirements for neutrals is consistent with MD-1 10, thus satisfying the requirement that ADR neutrals be familiar with: (a) the entire EEO process pursuant to 29 C.F.R. Part 1614, including time frames; (b) the Civil Service Reform Act and the statues that EEOC enforces; (e) the theories of discrimination and (d) the remedies available, including compensatory damages, costs and attorney’s fees. Furthermore, the agency should consider not utilizing Counselors as neutrals except as a last resort and only if the Counselors meet the qualifications set forth in MD-1 10.
Finding 7
The USDA’s Office of Civil Rights does not complete EEO Investigations within the regulatory time period.
Our review revealed that the USDA, Office of Civil Rights is not completing EEO investigation within the regulatory time period. EEOC Regulation 29 C.F.R § 1614.108(e)(2), requires that agencies conduct an investigation and issue a report of investigation within 180 days of the filing of the complaint unless the parties agree in writing to extend the time period. In the event that the parties agree to an extension, the investigative period will be extended not more than an additional ninety (90) days, thus totaling a maximum of 270 days in which to complete the investigation. The agency may also unilaterally extend the time period or any period of extension for not more than thirty (30) days where it must sanitize a complaint file that may contain information classified pursuant to Executive Order No. 12356, or successor orders, as secret in the interest of national defense or foreign policy. Furthermore, the investigative time period may be extended in the case of an amendment or consolidation of a complaint to the earlier of 180 days after the last complaint or 360 days after the filing of the original complaint See 29 C.F.R. § 1614.1 08(f) and § 1614.606. Our review disclosed that the EEO investigative period is being delayed at two points: (a) dismissing or accepting a complaint for investigation and (b) reviewing the reports of investigation prior to their release.
22 EEOC Onsite Report USDA02
U.S. Department of Agriculture
a. Dismissing or accepting a complaint for investigation
According to several interviews with officials and staff from the Office of Civil Rights, it may take up to or more than six months before a formal EEO complaint filed with this office is either accepted for investigation or is dismissed. The staff within the Office of Civil Rights have articulated that they believe the delay is because of a lack of staff to review the complaints and decide whether to accept or dismiss them. Each agency, however, is required to provide for the prompt, fair and impartial processing of complaints in accordance with 29 C.F.R. Part 1614 and the instructions contained in the Commission’s Management Directives. See 29 C.F.R. 1614.102(a)(2). Furthermore the agency should either accept or dismiss a complaint within a reasonable amount of time after receiving the EEO Counselor’s report See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), ch.5-pgl. (November 9, 1999). The EEO Counselor should submit the report to both the agency and the complainant within fifteen (15) days after being advised that a formal complaint has been flied. See 29 C.F.R § 1614.105(c). Officials and staff from the Office of Civil Rights state that EEO Counselor reports are generally received within the regulatory time frame.
Tahiti: Analysis of average processing times for dismissals of complaints.8
|
FY |
Decisions |
Total Days |
Average Days |
Government- |
|
1997 |
75 |
55,402 |
739 |
226 |
|
1995 |
158 |
84,124 |
532 |
203 |
|
1999 |
158 |
79,182 |
501 |
192 |
|
2000 |
6 |
3,812 |
635 |
227 |
|
2001* |
297 |
166,126 |
559 |
451 |
*The statistics supplies for FY2001 includes decisions on both procedural and merit grounds.
According to Table 1, the delay of dismissing/Accepting formal complaints is clearly more than the six (6) months as articulated by the Office of Civil Rights staff. The delay, more accurately, is closer to an average of one and a half years. This average time frame does not provide for the prompt processing of EEO complaints nor is it within a reasonable time of the receipt of the Counselor’s report. The delay, in and of itself, equates to more than the. one hundred and eighty (180) day time period for completing investigations and issuing the ROI. This delay is not only contrary to the language and spirit of EEOC regulations, but also contributes to the overall lengthy processing time for EEO complaints.
__________________________
8This table represents the average amount of time it took the USDA to issue decisions dismissing complaints on procedural grounds. In order to issue a decision dismissing a complaint the agency must conduct an analysis of the entire tile. Therefore, we presume that a similar amount of time is spent on issuing a decision accepting complaints for investigation.
23
EEOC Onsite Report USDA02b. Reviewing reports of investigation prior to their release.
Interviews with officials and staff from subcomponent EEO Offices and the Office of Civil Rights reveal that the Office of Civil Rights will not issue a report of investigation until a sufficiency review has been conducted. According to these interviews, this is why EEO investigations conducted by the USDA are typically not completed within one hundred and eighty (180) days from the filing of the formal complaint! However, the fact that a complaint may not be accepted for investigation for up to a year and a half; as discussed above, also contributes to the delay. Data supplied by the USDA in its FY200l, 462 report indicates that it took the USDA on average, five hundred and ninety-four (594) days to complete an EEO investigation.
EEO staff at the APHIS3 stated that when they have inquired why there was a delay, staff from the Office of Civil Rights indicated to them that they did not have adequate personnel to. review the reports. The requirement that all reports of investigation must be reviewed for sufficiency before issuance, without adequate staff has clearly contributed to the EEO investigations not being conducted in a timely manner. This protracted procedure is prolonging the EEO process and detracting from its integrity and efficiency.
Recommendation 7
The USDA should ensure that formal EEO complaints filed with the Office of Civil Rights are investigated within the regulatory time periods discussed above. The USDA should ensure that complaints are either accepted or dismissed within a reasonable time and that investigations are conducted in a timely manner and any review of the reports of investigation do not delay the process. This may require the USDA to increase its staff in the Office of Civil Rights to provide for the timely processing of EEO complaints.
Finding 8
The USDA’s Office of Civil Rights, does not possess an effective EEO complaint tracking system and process.
The USDA’ a Office of Civil Rights complaint tracking system and the process for ensuring that the data entered and produced is accurate and complete is deficient According to our review, there are several factors contributing to the deficiency: (a) the EEO tracking system cannot produce all necessary data; (b) there is & lack of verification of the data entered; and (c) status reports are not regularly provided to USDA subcomponents.
________________________________
9this 180 day period assumes that no amendments, consolidations, or extension of any kind have occurred during the investigative stage.
24 EEOC Onsite Report USDA02
U.S. Department of Agriculture
a. The EEO tracking system cannot produce all necessary data.
By letter dated April 23,2002, EEOC notified USDA that it was subject to an onsite review. Along with with letter of notice, EEOC submitted a request for information. Contained therein, EEOC requested in question sixteen (16): a spread sheet, or computer printout of all EEO complaints filed during the above fiscal years, ordered by date of filing from October 1, 1999 through March 31, 2002. EEOC further requested that if the data display contained codes, USDA provide a definition of what the codes represent. We also asked that each complaint include the following information:
- complaint number
- complainant’s name
- date the complaint was filed
- the name and location of the facility in which the complaint was generated
- dates complaint settlement was attempted through ADR (if applicable)
- date the complaint was assigned to an investigator
- whether the investigator was an USDA or contract employee
- date the USDA provided the complainant with a copy of the investigative file
- date of the hearing request (if applicable)
- date the USDA received a decision from an Administrative Judge (if applicable)
- closure date (if applicable)
- type of closure (dismissal decision, decision on the merits of the complaint without a hearing, decision on the merits of the complaint with a hearing, settlement, civil action, withdrawal, other -specify)
- if the complaint was open as of October 1, 2001, a description of where the complaint was pending in the complaint process on that date, and the name, title, telephone number, and e-mail address of the person who was responsible for the complaint on that date.
By letter dated May 28, 2002, the USDA responded to EEOC’s request for information. In their submission, the USDA responded to question sixteen (16), however, it was not in the format which EEOC indicated nor did it contain all of the fields requested. Therefore, during the onsite visit, EEOC again requested that the above information be provided. By letter dated August 23, 2002, the Office of Civil Rights submitted a print-out of all employee complaints filed from October 1,1999 through March 31, 2002. Again, this submission did not contain all the information EEOC requested. For example: the data did not contain the name of the facility where the complaint was generated; the dates complaint settlement was attempted through ADR; whether the investigator was a contractor or a USDA employee; and if the complaint was open as of October 1, 2001, a description of where the complaint was pending in the complaint process on that date, and the name, title, telephone number, and e-mail address of the person who was responsible for the complaint on that date.
25 EEOC Onsite Report USDA02
U.S. Department of Agriculture
Clearly, the current tracking system being utilized by the USDA’s, Office of Civil Rights, is ineffective. Through the above submissions, the USDA has proven that their tracking system cannot produce, in a timely fashion, the data EEOC requested, which is necessary to ensure that EEO complaints are progressing through the process as required by regulation.
b. There is a lack of verification of EEO data entered in the complaint tracking system.
According to interviews conducted with staff from the Office of Civil Rights, there currently is no
system in place to systematically verify if the complaint data which is entered into their tracking system is accurate. Interviews with the staff of the Office of Civil Rights indicated that members were uncertain as to who, if anyone, should be verifying the data which is entered. More specifically, the Program Analyst in the Office of Civil Rights indicated that the Team Leaders in the Intake Division are supposed to verify the data which is entered into the system. To the contrary, the Team Leaders indicated that the Program Analyst should be conducting the verification of the data entered into the tracking system. Consequently, we can assume that no one is currently conducting verification of the EEO complaint data which is entered into the system. This lack of verification can and may have contributed to inaccurate data being submitted to EEOC in the agency’s 462 annual report, as indicated in Finding 2 of this report.Furthermore, according to interviews with staff from the Office of Civil Rights, upon receipt of a formal complaint by either an employee or applicant for employment the Office of Civil Rights will ordinarily issue! within a week, an acknowledgment letter to the complainant, The Office of Civil Rights, however, will not consider this complaint to be a complaint for identification purposes, until it is either accepted for investigation or dismissed. As noted above in Finding 6, the Office of Civil Rights may not accept or dismiss a complaint on average for one and a half years. Therefore at any one time, the USDA can have one and a half years worth of complaints which are not categorized as such. The EEOC considers that a formal EEO complaint filed with the agency is such upon its. receipt by the agency with which it is filed. The USDA’s interpretation of when a complaint filed with the Office of Civil Rights is considered a formal EEO complaint, surely must cause an inaccurate reading of the number of complaints at any one time.
As discussed herein, the EEOC requires that the USDA, as well as other federal agencies provide EEOC with EEO complaint data. One field of complaint data -which is requested is the aggregate number of formal EEO complaints filed with an agency on an annual basis. Consequently, we can assume that because of the USDA’s interpretation of when a complaint is a complaint, the statistical information provided EEOC regarding the number of complaints filed with the agency was inaccurate Specifically, we can assume that the number of complaints actually filed is greater than what was reported. This practice not only provides EEOC with an inaccurate number of complaints being filed in a given year, but can also paint a distorted picture. of complaint activity when, and if, a trend analysis is conducted.
26 EEOC Onsite Report USDA02
U.S. Department of Agriculture
Without establishing a clearly communicated process in which EEO complaint data is verified, the Office of Civil Rights may continue to experience inaccuracies in their data collection and submissions. This can negatively impact integrity, efficiency, and professionalism of their office.
c. Status reports are not regularly provided to USDA subcomponents.
According to several interviews with staff from the USDA subcomponent’s EEO offices, the USDA’s Office of Civil Rights does not provide status updates to their offices on a regular basis regarding formal EEO complaints filed with the Office of Civil Rights. Staff with the USDA subcomponent’s EEO Offices stated that once a formal complaint has been filed, they are unaware of what transpires at the Departmental level Moreover, staff at APHIS, stated that several times they had called to gather information about a particular complaint and the Office of Civil Rights did not respond to them. APHIS EEO staff further indicated that they were incapable of accessing the Office of’ Civil Rights EEO data base to gather the information themselves. The subcomponents inability at times to gather information about a particular complaint when necessary can negatively affect customer, service provided to USDA employees and applicants for employment
Recommendation 8
To ensure that the USDA is accurately capturing, entering, and verifying EEO complaint data, we recommend the following action be taken:
27
EEOC Onsite Rep on USDA02CONCLUSIONS
Delays of processing EEO complaints, the absence of effective oversight of EEO programs, and the lack of proper separation between the Office of General Counsel and the Office of Civil Rights, has
severely impacted the integrity, efficiency, and professionalism of the Office of Civil Rights, the programs it administers, and its staffIn order to establish integrity, efficiency and professionalism in the Office of Civil Rights and the
programs for which it is responsible, the USDA must take action on several fronts. First, the USDA must ensure that there is the proper separation between the Office of Civil Rights and the Office of General Counsel. Second, the USDA must establish an effective tracking system that accurately and timely captures EEO complaint data at both the Departmental and subcomponent level. The USDA must also implement measures to ensure that data, which is not sent electronically to the Office of Civil Rights, is maintained in a central location (repository) so this information is not misplaced requiring additional submissions by the subcomponents. Furthermore additional measures must be implemented to ensure that the EEO complaint data is made available to the subcomponents so they can, when necessary, disseminate information about a complaint to the proper parties in a expeditious fashion. Fourth, the USDA must also establish a system where the Office of Civil Rights provides guidance and feedback on a regular basis to the subcomponents regarding their EEO programs including the Alternative Dispute Resolution programs.By implementing these measures, the USDA can begin restoring employee confidence in the Office of Civil Rights and its programs, as well as increasing the integrity, efficiency and professionalism of the Office of Civil Rights and its staff.