The Federal EEO Complaint Process:

Increased Accountability
Measures Needed
(Progress Review)

Prepared for the

U.S. Equal Employment Office Commission (EEOC)
Office of Federal Operations
Director Carlton M. Hadden

Follow-up Submission
The Coalition For Change, Inc. (C4C)
June 23, 2016
 2

STATEMENT OF NEED
The EEOC needs to make Federal agencies/officials more
accountable for violating employment discrimination and
whistleblower protection laws. Agency reported data under
the Notification and Federal Employee Anti-
discrimination and Retaliation Act of 2002, highlights
a critical need for enhanced accountability and
transparency within the Federal EEO Program.

NOTE: The reissuance of the present PowerPoint, in outline

fashion, is being used to document the EEOC’s acceptance /
rejection of the measures contained herein which the C4C also
presented to Director Carlton M. Hadden and staff on May 3,
2016.
 3

C4C STATEMENT OF CONCERN

Despite the passage of the No FEAR Act of

2002, Federal workplace discrimination and
unchecked retaliation continues to adversely
impair the health and wealth of civil
servants. Most notably, many qualified,
highly skilled and well-educated Black
Am e ri c an s , e i t h e r w o rki n g o r s e e ki n g Image: Atlanta Black Star

employment in the Federal sector, continue

to suffer financially, psychologically, and
physically due to race discrimination and
reprisal by federal officials.
 4

C4C STATEMENT OF CONCERN (cont’d)

Despite counseling reports and formal complaints in the thousands,

federal agencies and the EEOC find discrimination less than 5% of the
time. Moreover, when discrimination is found officials rarely, if ever, face
any mandatory discipline.

Figure 2 Completed Counseling to

Formal Complaints FY 2010 - FY
2014

NOTE: FY 2014 -Merit Final Agency Decision finding discrimination ONLY 1.61%; Final Orders of
Administrative Judges (AJ’s) Finding Discrimination ONLY 4.2%. Source: EEOC’s Annual Report of the
Federal Workforce FY 2014 – Table B-15 FY 2014 Complaints Closed with Findings of Discrimination.
 5

INDEX OF RECOMMENDED FEDERAL

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

*NOTE: Some of the measures recommended to spur a workplace free of discrimination and retaliation The Coalition For
Change, Inc. (C4C) previously submitted in support of H.R. 1557 Federal Employee Antidiscrimination Act as
introduced by Rep. Elijah Cummings on 3/24/15.
 6

Measure 1: Prescribe That Agencies

Announce Unlawful Violations via E-Notice
to Employees (Operating Unit Level)

The EEOC should require agencies to announce unlawful

violations to employees via E-notice. The E-notice (e-mail)
to employees shall, at a minimum, identify:
· the specific office where violation occurred ,
· the statute that was violated,
· the name of the party found culpable; and
· a statement assuring that the discrimination found will not
recur.
 7

Identify Unlawful Violation at Operating Unit Level

Example-U.S. Department of Agriculture (USDA )

· Department of Agriculture (Cabinet Department

USDA w/ 17 agencies and 18 major offices)

USDA · Forest Service (1 of 17 agencies)

· National Forest System (10 Operating Units)

USDA

· Lands and Realty Management (1 of 10 Operating

USDA Unit under National Forest System)

Source: Information extracted from organizational chart

FY 2017 Budget Justification – USDA Forest Service
 8

Measure 2: Increase Use of Sanction

Authority For Agency Non-Compliance
with 29 CFR 1614

Agencies routinely ignore provisions of 29 CFR 1614.

Agency Program To Promote Equal Employment Opportunity

The EEOC should make more effective, timely, and regular use of its
sanction authority to combat discrimination. When a Federal agency
violates an EEOC regulation governing Federal sector complaint
processing, the EEOC should enter a judgment in favor employee. For
example, when a Federal agency fails (without good cause) to timely
comply with the 180 day “EEO complaint investigative requirement,” as
prescribed in 29 CFR §1614.108 - the EEOC should enter a judgment in
favor employee.

[NOTE:-The U.S. Social Security Administration’s (SSA) No FEAR data disclosed that the agency exceeds the
prescribed days to conduct investigations. The SSA, which has on-going class complaint activity, reported that
in fiscal year 2015 it exceeded regulations. [Average Number of Days 286 for Fiscal year of 2015.]
 9

Agencies routinely ignore provisions of 29 CFR 1614.

· Example: Kennedy v Vilsack

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

· Documentation: Office of
Special Counsel Letter to
President Obama dated May
18, 2015. “. . . 50 % of civil
rights complaints filed against
high level USDA officials were
not acted on the legally required
timeframe.”
 10

Measure 3: Post Class Action Complaints

On EEOC Website

The EEOC should post “class action” complaint data on its

website. Data should disclose:
· the name of the agency;
· the initial filing date of class complaint; and
· status of the class complaint.
 11

Measure 4: Post “Federal” Violations

On EEOC Website
The EEOC should post federal violations on its “HOMEPAGE” similar to
how they post violations of the private sector.
 12

Measure 5: Disband Anonymity:

Identify Discriminating Official

Where EEOC issues a final finding of discrimination and there exist no

further recourse for appeal at the administrative level, a supervisor found
guilty of violating a law shall be listed by name (in lieu of “S1” or
“Supervisor 1”) in Federal Sector Appellate Decisions and made
available on EEOC page.
 13

Measure 6: Use Certify Mail When Issuing

Complainant Right To File a Civil Action

To protect a complainant's right to file a lawsuit in

court, the EEOC should issue complainant, the Right To
File A Civil Action by certified mail, when appropriate.
 14

Measure 7: Support Discipline.

Refer Civil Rights Violators to the Office Special
Counsel (OSC)

When a supervisor is found guilty of an unlawful violation

and the EEOC issues a finding against the supervisor/agency
and all appeal rights are exhausted--- the EEOC should at
the very least, recommend discipline and forward the
the discriminating official’s name to the OSC for
discipline.

Note: The C4C conducted a Freedom of Information Act (FOIA) inquiry to assess how often, if at all, the EEOC followed
through with its enforcement authority by referring cases to the OSC for disciplinary action when appropriate. We found
that over a ten year period and after finding retaliation in numerous cases, the EEOC referred ZERO names to OSC for
disciplinary action.
 15

The EEOC should make better use of its

Memorandum of Agreement with the OSC.

In the case of Isaac Decatur, the EEOC found

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

The EEOC should have referred both the Decatur case and Saunder’s case - which involved widespread retaliation and
“Blacklisting” at the VA - to the OSC for disciplinary action. In VA Case No 200L-0629-2004100828 the Final Agency
Decision footnoted in the Ralph Saunders v Veterans Affairs case the following statement” “ We also note the evidence
that they also retaliated against other employees who filed EEO complaints.”
 16

Measure 8: Prohibit GAG Orders That May

Impose Harm on Public Health or Safety

The EEOC should prohibit agency use of GAG

Orders that may impose harm on public health or
safety.

At the very least, the EEOC should issue a statement

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

Reference: Mitchell v Veterans Affairs [Destruction of Patient Medical

Records-System Redesign YouTube Video.]
 THE FEDERAL EEO COMPLAINT PROCESS:
INCREASED ACCOUNTABILITY
MEASURES NEEDED
(Progress Review)

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

Presented by:
Tanya Ward Jordan, President and Founder
The Coalition For Change, Inc. (C4C)

Attending C4C Chair Members:

Paulette Taylor, Civil Rights Chair
Terri Williams, Executive Administrator
Arthuretta Holmes Martin, Health and Wellness Chair