Reply posted on LinkedIn, June 23, 2014, revised on June 25, 2014.
Dear Judge Bullock,
Thank you for your heartfelt outcry against the deep-seated corruption and inaptitude in EEOC. I am somewhat familiar with the type of problems you described from my own experience with a state anti- discrimination agency I worked for 9 years. You are absolutely right, unless there is surgical elimination of all rotten apples in an organization, you cannot reform it. True, a change of Commissioner or Executive Director alone won't do. The change must accompany elimination of rotten middle managers, down to the investigators and, dare I say, AJ's at EEOC. The change must be surgical but broad, deep, and nationwide.
My own state agency underwent the so called a Business Processing Review (BPR). After a million or so was spent, we got a computerized system, another assistant to the Executive Director, and nothing else. The case processing still lagged behind; the problem with backlogged cases still untouched. There was no strategic surgery. There was no willingness to change at the top of the leadership. The executive director never even attended the BPR meetings.
There are professional managers who know how to answer questions posed by a new leader at the top; they know how to come up with excuses not to change. They are at this many times and have become, what I call, the professional buck passers (as in “passing the buck”). They have become bureaucrats in the worst sense.
That's why I believe if President would appoint a top Executive Commissioner at EEOC with the mission to change radically, surgically, broadly, deeply, and nationwide --- meaning, replacing about half of the staff, up and down--the EEOC can be reformed. It would take such a power in the magnitude of the President’s.
Giving the subpoena power to AJ's must also accompany such a reform. Rigorous monitoring of the federal EEO process, including the conducts of EEO Directors, EEO counselors, and EEO investigators, must be implemented.
The federal EEO process needs its own Inspector General to receive complaints from Complainants about the EEO process. The OFO (Office of Federal Operations, a branch of EEOC) does not accept the grievance filed on the federal EEO process. The Field Activities Program in the OFO does not do anything when you file a grievance about the EEO process.
The information posting requirement about the EEO must be strictly enforced. People do not know whom to contact to file an EEO complaint or to request a reasonable accommodation based on disability.
When a contact is made with EEO counselor, the counselors routinely sign up the aggrieved for mediation, where the aggrieved would be humiliated by Agency attorneys and the managers, where Agency would engage in a discovery process to find out how much the aggrieved knows and what evidence he or she has. After such a waste of time, Complainant only realizes that by requesting a mediation, he or she has given the automatic additional 60-day extension to the otherwise 30-day pre- complaint counseling period. This must stop.
What are the Agency attorneys doing in the pre-complaint process and in the mediation? Why are they involved in the EEO investigation process? The managers receive assistance from HR, Labor Relations, and Agency attorneys. Who is assisting the Complainants?
EEO counselors routinely re-articulate and misrepresent the allegations so as to undermine the claim. Some counselors advise the aggrieved that an EEO claim cannot be filed against an acting manager, because the manager is acting, or any proposed disciplinary action (such as a proposed removal) cannot be filed because it is only a proposal, not actual. There are host of other “advises” the counselors offer to refuse the EEO claims or to have the claims delayed and thus expire the 45-day window period. They routinely fail to leave a record of the “initial contact” so that the aggrieved may pass the 45-day deadline. The counselors do not forward the records or evidence the aggrieved provide during the counseling period, so that when a formal complaint is filed and when an investigator is assigned, those records may be passed on to the investigator. Rather, in some instances, those records are destroyed. Since the pre-complaint process is not a formal process, no records are kept. In some cases, based on the complaint received or information obtained during the mediation, the relevant records that may expose the Agency’s liability may be destroyed. The fraud must stop.
When a formal complaint is filed, EEO Directors routinely dismiss valid and timely filed claims. They hardly recognize the on-going and continuous actions that would not be limited by the 45-days time limits. They routinely suppress the class complaints. Period.
Many EEO Directors assign an investigator to a case after some150 days from the filing date, leaving only 30 days to investigate. Some Agencies do not investigate at all well beyond the 180-day time frame, hoping that Complainant would just go away somehow, forget about the complaint they filed, or would not know about the Agency’s obligation to produce ROI (Report of Investigation) within the 180- day investigation period.
EEO investigators must be required to obtain the comparative data--the data on the similarly situated individuals within and without the protected classes. Hardly any ROI has the comparative records and the data, without which most discrimination complaints could not succeed.
EEO investigators are supplied with information and documents Agency provides prior to contacting Complainant. Based on these records and information, the investigator, or sometimes the Agency itself drafts the questions for the investigator to pose to Complainant at the interview or at the fact- finding conference conducted by the investigator. Since the investigator is paid by the Agency either as an employee or as a contractor, they have no choice but to do what the EEO director tells them to do. One investigator recently refused to write down the names of the comparators Complainant identified during the interview, invoking (erroneously or in bad faith) the privacy violation.
EEO investigators require Complainant’s response to investigator's questions to be further edited by the investigators themselves--after giving Complainant only 5 days or so to respond to the questions— so as to change and to further water down the affidavit. (They require that the response be sent via email in Word doc format so that the investigator can further change it.) Investigators write Complainant’s testimony during the interview; but many times what they write is not what is said by Complainant; or the testimony is eschewed so as to undermine Complainant’s claim. Many investigators don’t provide the management affidavits to Complainant so as to have Complainant provide a rebuttal affidavit. Many investigator do not ask records from Complainants; while almost all do from the Agency. If Complainant presents records, many investigators refuse, citing various erroneous or made-up reasons. Or, those records may be received by the investigators but are not found later in the ROI.
EEO Director must not be allowed to suppress from or omit in the ROI (Report of Investigation) the evidence Complainant presented to the EEO counselor or to the investigator.
None of these people are accountable to the public. These EEO staff are accountable to only those who encourage these deviant behaviors (Counselors and Investigators report to EEO Directors, who in turn report to the Agency Head, who in turn might be named as the Responsible Managing Officer (RMO) in the complaint).
EEOC Administrative Judges (AJ's) should enforce Complainant's Motion to Compel. Often Agency’s motions are quickly granted but not Complainant’s. AJ's must stop holding telephonic conferences on the motions parties already submitted and responded to; and require to re-argue the motion verbally all over again at the conference. AJ's must stop holding conferences without fully reading the case file or the pending motions. AJ's must enforce sanctions against Agency for failure to produce ROI within 180 days (when no extension was granted). AJ’s must stop ex parte communication with Agency attorneys.
AJ's decisions must be appealable (without going through another layer of Agency adopting it in the Final Agency Decision, which can be appealed to the OFO (Office of Federal Operations)). AJ's must be required to cite the specific ROI pages and the Hearing Exhibits for each and every crucial finding of facts they write in the Decision. (They no longer do this at least in the decisions issued from Charlotte EEOC.) AJ's should not require Agency or Complainant to write the closing argument, so that they can cut and paste it in the decision they issue, almost all in favor of the Agency.
EEOC needs an independent unit to review and assess the EEO counseling/investigation process and another unit to review and assess the EEOC hearing process. The OFO appeal system is not functioning, when decisions are issued after 2 or 3 years of appeal. OFO appeal process does not even look at allegations not filed due to the flawed advices the EEO counselors provide. And how many countless complainants entered into meager, if not downright unlawful, settlement agreements under pressure or threat to their jobs!
No one could implement the radical reform of EEOC proposed here without a serious Executive Order from the President that seeks to follow through on the sweeping reform it should recommend specifically and rigorously. Of course, it takes funding to implement such a reform—a lot of funding and more staff.