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| AJ Kathleen Mulligan's Written Testimony at EEOC's Strategic Enforcement Plan Meeting in 2012 |
|
The following was taken from http://www.eeoc.gov/eeoc/meetings/7-18-12/mulligan.cfm.
Some emphasis in bold were added, some others not.
Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan
Written Testimony of Kathleen Mulligan, Administrative Judges Association (http://www.eeoc.
gov/eeoc/meetings/7-18-12/index.cfm)
Thank you for taking the time to respond to our letter of June 11, 2012, which addressed what had
been described to us as a proposed realignment of the federal hearings program within the EEOC
organization. We have conveyed your feedback to our members.
Enforcement of civil rights laws for federal employees is now a matter before the whole Commission
as it considers the Strategic Enforcement Plan [SEP]. We understand that development of the SEP
requires the Commission to look holistically at the various elements of our organization. However, our
main point in our last letter is also relevant to the SEP: this SEP must not continue the historial
neglect of the rights of federal employees embodied in all the prior SEPs. In our comments filed on
February 1, 2012, which we are attaching to this memo, we pointed out that the proposals specific to
the federal sector in the currently proposed plan continue that pattern.
1- Due Process
For over two years, we have gone back to the language of the statutes and made the case to the
Commission about the best way for you to carry out your obligations under those statutes, that is,
adoption of a due process model for hearings on federal employees' civil rights claims. The current
proposed SEP ignores what we have pointed out. The current Proposed SEP does nothing to
provide due process in federal hearings.
The adoption of the Administrative Procedures Act [APA] for federal civil rights hearings is not merely a
personnel matter. It provides the foundation for due process for federal employees which the current
program lacks(1). It would allow AJs to issue subpoenas for information necessary for an
adequate record. In contrast, the proposed SEP would continue to ignore the statutory authority
for the Chair to appoint administrative law judges [ALJs] and continue a defective program which
was never contemplated by Congress.
The APA has been called the constitution for administrative litigation. It is the foundation for the
parties' right to due process [i. e., decisions based on facts and law by competent, independent
decision-makers]. The Commission has rejected the "Constitution" applied by other federal
agencies in other employment cases, and has not even been willing to consider applying the APA
to federal hearings. The whole issue seems to be off the table, we believe because of economic
assumptions which have never been objectively examined.
Prior SEPs depended on and perpetuated the myth, as the Dallas District Director's email said last
year, that there are no real civil rights issues in the federal government, that we are already the
model employer. This myth is useful to those arguing for scarce resources for private sector
enforcement. This myth supports the incredibly strong bias of the Commission against funding real
enforcement in the federal sector. [And explains why when we were confronted time after time with
this bias inside the Commission, we turned for support to civil rights experts outside the
Commission, who quickly and easily grasped the necessity of serious reform.](2) This myth must be
firmly rejected in the next SEP, by providing real teeth to federal enforcement through
administrative litigation.
To provide substantive statutory protection for federal employees, at a minimum, the Commission
must provide the due process promised by the APA. We believe we have made it clear that the APA is
the foundation of due process, not a personnel rule, and we do not understand why the
Commission will not provide a due process hearing model for federal employees.
2- Declining case processing numbers
Putting aside the issue of due process, as the Commission has, the SEP focuses on alleged
improvements to the efficiency of the hearings process, through new technology and case
management programs. The SEP identifies the proposed technology and case management
programs, and the locations of the pilot programs which tested the assumptions of improved
efficiency, but, notably, it fails to state that the pilot programs in fact did improve efficiency. We urge you
to consider our comments on these alleged improvements.(3)
The numbers showing declining "efficiency" are stark. For the past five fiscal years, the rate at
which federal sector cases have been resolved within 180 days steadily worsened:
FY 2007 FY 2008 FY 2009 FY 2010 FY 2011
Target 50.0% 50.0% 50.0% 52.0% 53.0%
Result 42.8% 38.6% 40.6% 37.4% 34.3%
The Commission admitted in its PARS Report a few years ago:
support in reality. There has not been a greater emphasis on quality. The OFP liaisons have
performed basically the same type of quality review each year, using the same criteria. AJs have not
been advised that there has been an appreciable variation in quality.
Even the high cost of attrition was glossed over. Losing experienced AJs to other agencies did not
merely cause a temporary glitch while cases were reassigned, it caused a long-term deficit of
experience in handling complex cases, just as the Commission was expanding its jurisdiction to
include claims under GINA and the ADAAA, and just as headquarters was advertising AJ vacancies for
less experienced lawyers, at a GS-12 or even -11 level, with two or three years legal experience,
without a thought to competence and the impact on efficiency. (4)
The Commission failed to admit far more significant reasons for higher case processing times,
discussed in our attached Comments:
The Commission has reflexively gone to the perennial cures for management problems: increased
tracking technology and increased centralized headquarters control. It has done so without ever
undertaking the most basic of management duties: obtaining reliable data. Why are some offices
more efficient? Why are some AJs more productive? What has caused wide disparities when we
all work within the limits of the same system?
The AJA believes that the reasons for such persistent "inefficiency" may be found in the
management model used by the Commission: hiring the least experienced lawyers, failing to train
them, making judges do clerical work for 200/0 of the day, using irrational management models
and district definitions, ignoring our duty to identify and remediate discrimination, and ignoring the
increasingly complex caseloads which defy management by numbers.
Administrative judges should be managed by judges. That is the model used under the APA, so the
due process model we advocated above would also provide for greater efficiency, as it has for
decades at the National Labor Relations Board, the Department of Labor, and most every other
federal agency. The Commission has never even offered to work with AFGE and AJA to develop a pilot
project to determine if using the AJA model would in fact increase productivity and quality while
providing due process.
Conclusions
The SEP persists in ignoring the glaring problem of denial of due process. The SEP defines the
problem of "inefficiency" incorrectly, as a function of a supposed AJ failure to review each case upon
assignment and determine the most efficient way to proceed to a fair resolution of the case. The SEP
then proceeds on the basis of an erroneous definition to propose solutions which have been tested,
yet are unproven: new technology and more centralized management.
The AJA has proposed a different solution which would provide due process, create a rational and
streamlined organization chart, improve morale and decrease attrition, and improve efficiency. Within
this context, we would welcome the opportunity to explore how more productive judges manage their
caseloads, so that we could share insights as guidance to our members.
We look forward to discussing this model with you.
Cc: David Norken, Vice-President; Board Members Ricardo Cuevas, Debra Sharp, Charles Shubow,
Lesley Troope, Nancy Weekse
Footnotes
1 Imagine if the OFCCP suddenly told federal contractors or stakeholder employees of those
contractors that their ability to bid on federal contracts, or to raise claims of under representation of
women, persons with disabilities, racial or ethnic groups, arising under E.O. 11246, would not be
decided on the record, by a competent Department of Labor ALJ protected from political influence or
control, but would instead be heard by a lawyer assigned to the case by an unnamed SES manager
who is not a judge, who decides how much discovery is needed and whether a hearing is necessary,
and requires the lawyer to run a draft decision by him/her before it can be sent to the parties; if there
is a finding of a statutory violation, then the "draft" sits for months or years while it is reviewed off
the record by the unidentified manager [who may or may not be a lawyer] under undisclosed
criteria for undisclosed reasons. Further imagine that none of this process, except the process
before the "judge", is disclosed to the parties or taken under authority of any rules adopted after
public notice and hearing.
2 In fact, even before we began advocating for reform, the National Employment Lawyers Association
provided the same input to the Obama transition team:
,NEsA Halle ........ pl." .... "'JW7eN jU.o~I.I" .. PROPOSALS FOR FEDERAL SECTOR EMPLOYMENT
REFORM OF mE EEO PROCESS December 19, 2008 Statutory Changes: 1. Statutory change to permit
the EEOC to issue and enforce subpoenas in its adjudicatory role. 2. Statutory change so EEOC and
MSPB "judges" would have to be administrative law judges.
3 "Again, the AJA would like information about the case prioritization system, including who will be
doing it and how. If this requires additional personnel, we believe a better use of resources would be
to have additional administrative staff assigned to hearings units, given that most AJs are responsible
for almost all of their own clerical work."
4 The AJA, AFGE and some supervisors objected to Headquarters that even under current
Commission staffing, the announcements should identify the position as GS-13/-14.
5 There is no evidence that the backlogs are due to inefficiencies in busy districts. In fact some
districts with backlogs have higher rates of findings of discrimination and higher productivity per
AJ.
See AJ Mulligan's oral testimony, following her written testimony provided above
See other AJ's pleas.
Some emphasis in bold were added, some others not.
Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan
Written Testimony of Kathleen Mulligan, Administrative Judges Association (http://www.eeoc.
gov/eeoc/meetings/7-18-12/index.cfm)
Thank you for taking the time to respond to our letter of June 11, 2012, which addressed what had
been described to us as a proposed realignment of the federal hearings program within the EEOC
organization. We have conveyed your feedback to our members.
Enforcement of civil rights laws for federal employees is now a matter before the whole Commission
as it considers the Strategic Enforcement Plan [SEP]. We understand that development of the SEP
requires the Commission to look holistically at the various elements of our organization. However, our
main point in our last letter is also relevant to the SEP: this SEP must not continue the historial
neglect of the rights of federal employees embodied in all the prior SEPs. In our comments filed on
February 1, 2012, which we are attaching to this memo, we pointed out that the proposals specific to
the federal sector in the currently proposed plan continue that pattern.
1- Due Process
For over two years, we have gone back to the language of the statutes and made the case to the
Commission about the best way for you to carry out your obligations under those statutes, that is,
adoption of a due process model for hearings on federal employees' civil rights claims. The current
proposed SEP ignores what we have pointed out. The current Proposed SEP does nothing to
provide due process in federal hearings.
The adoption of the Administrative Procedures Act [APA] for federal civil rights hearings is not merely a
personnel matter. It provides the foundation for due process for federal employees which the current
program lacks(1). It would allow AJs to issue subpoenas for information necessary for an
adequate record. In contrast, the proposed SEP would continue to ignore the statutory authority
for the Chair to appoint administrative law judges [ALJs] and continue a defective program which
was never contemplated by Congress.
The APA has been called the constitution for administrative litigation. It is the foundation for the
parties' right to due process [i. e., decisions based on facts and law by competent, independent
decision-makers]. The Commission has rejected the "Constitution" applied by other federal
agencies in other employment cases, and has not even been willing to consider applying the APA
to federal hearings. The whole issue seems to be off the table, we believe because of economic
assumptions which have never been objectively examined.
Prior SEPs depended on and perpetuated the myth, as the Dallas District Director's email said last
year, that there are no real civil rights issues in the federal government, that we are already the
model employer. This myth is useful to those arguing for scarce resources for private sector
enforcement. This myth supports the incredibly strong bias of the Commission against funding real
enforcement in the federal sector. [And explains why when we were confronted time after time with
this bias inside the Commission, we turned for support to civil rights experts outside the
Commission, who quickly and easily grasped the necessity of serious reform.](2) This myth must be
firmly rejected in the next SEP, by providing real teeth to federal enforcement through
administrative litigation.
To provide substantive statutory protection for federal employees, at a minimum, the Commission
must provide the due process promised by the APA. We believe we have made it clear that the APA is
the foundation of due process, not a personnel rule, and we do not understand why the
Commission will not provide a due process hearing model for federal employees.
2- Declining case processing numbers
Putting aside the issue of due process, as the Commission has, the SEP focuses on alleged
improvements to the efficiency of the hearings process, through new technology and case
management programs. The SEP identifies the proposed technology and case management
programs, and the locations of the pilot programs which tested the assumptions of improved
efficiency, but, notably, it fails to state that the pilot programs in fact did improve efficiency. We urge you
to consider our comments on these alleged improvements.(3)
The numbers showing declining "efficiency" are stark. For the past five fiscal years, the rate at
which federal sector cases have been resolved within 180 days steadily worsened:
FY 2007 FY 2008 FY 2009 FY 2010 FY 2011
Target 50.0% 50.0% 50.0% 52.0% 53.0%
Result 42.8% 38.6% 40.6% 37.4% 34.3%
The Commission admitted in its PARS Report a few years ago:
- Over time, the EEOC's efforts to achieve this goal have become more difficult because of
increasing workloads and a greater emphasis on enhancing the quality of hearings.
Additionally, the Commission's efforts to achieve this goal have been compounded by the
departure of a number of AJs who accepted ALJ positions at other agencies, which prompted
the reassignment of their complaints, creating larger caseloads and further delays in
complaint processing.
support in reality. There has not been a greater emphasis on quality. The OFP liaisons have
performed basically the same type of quality review each year, using the same criteria. AJs have not
been advised that there has been an appreciable variation in quality.
Even the high cost of attrition was glossed over. Losing experienced AJs to other agencies did not
merely cause a temporary glitch while cases were reassigned, it caused a long-term deficit of
experience in handling complex cases, just as the Commission was expanding its jurisdiction to
include claims under GINA and the ADAAA, and just as headquarters was advertising AJ vacancies for
less experienced lawyers, at a GS-12 or even -11 level, with two or three years legal experience,
without a thought to competence and the impact on efficiency. (4)
The Commission failed to admit far more significant reasons for higher case processing times,
discussed in our attached Comments:
- Irrational staffing patterns - "At this time, our best estimates are that approximately 200/0 of all
AJ time is spent on clerical or administrative tasks such as copying, mailing and IMS entry"; - Imposing technology which frustrates rather than supporting efficiency - -"For example, the
current IMS system could do a number of tracking tasks, or be modified to do so, but given its
lack of user friendliness it appears the voluntary use by Judges is minimal. In addition, if the
goal is actually improving the processing time rather than merely improving management's
ability to capture data, the focus must be on useful features for the Judges, which has not
been the initial focus of IMS. If the IMS prototype is followed, the system is likely to be a
spectacular failure." - Ignoring the reality of systemic enforcement in the federal sector - - "This objective contains a
number of suggestions for hortatory procedures to target discrimination within federal
agencies through use of the 'compliance process.' However, currently the EEOC compliance
process is totally advisory. Only an Order issued by an Administrative Judge in resolution of
an actual complaint can require agencies to take corrective action. Nevertheless, this section
focuses on the wholly toothless 'compliance process' and ignores the power of the federal
sector class complaint to effectuate change and combat discrimination." - Ignoring the responsibility of a sole AJ for huge class cases - - " In the private sector, the
Commission has committed enormous resources in the past few years: new SES positions
have been created, training funds have been committed, and new staff have been hired at
professional grade levels commensurate with advanced degrees in psychology, statistics and
other relevant fields. The Commission litigates "class cases" in federal court without technical
compliance with Rule 23's requirement of numerosity ... so that "class cases" may include a
class of two or more individuals. In contrast, the federal sector looks to Rule 23 as a model
and [our AJs] have resolved ... class cases with tens of thousands of class members ...
involving the failure to accommodate disabilities in the [Postal Service], the refusal to promote
[employees with disabilities] at the Social Security Administration, as well as a number of
class cases inside the Department of Agriculture ... As in the private sector, such class cases
are an effective way to focus limited resources on large systemic patterns of discrimination.
However, [AJs] are left to manage nationwide class cases without any support,
administrative or legal. Unlike [Legal Unit cases] where typically several attorneys work
the case, as well as generally a paralegal, and sometimes an additional contract paralegal
or clerk to deal with claims, the [AJ] responsible for managing class cases is doing her
own faxing and mailing of orders, and maintaining her own files, as well as research and
writing complex decisions that determine whether class-wide relief for thousands of
federal employees is appropriate." - Ignoring the administrative costs of redefining federal sector districts - - Creating new district
jurisdictions without considering federal sector caseloads is one reason for widely different
caseloads for districts, causing enormous administrative transaction costs for Supervisory
Administrative Judges to absorb, first, to convince OFP to allow a transfer, and then to actually
transfer cases from overloaded districts to those with insufficient caseloads.(5) - Failing to consider the duty to identify and remediate discrimination - - it is every AJ's duty to
find and remedy discrimination as warranted by the evidence, but doing so inevitably
requires more time writing the decision in view of the inevitable appeal by the agency found
to have discriminated, and the additional tasks of determining remedies, fees, and costs.
The Commission has reflexively gone to the perennial cures for management problems: increased
tracking technology and increased centralized headquarters control. It has done so without ever
undertaking the most basic of management duties: obtaining reliable data. Why are some offices
more efficient? Why are some AJs more productive? What has caused wide disparities when we
all work within the limits of the same system?
The AJA believes that the reasons for such persistent "inefficiency" may be found in the
management model used by the Commission: hiring the least experienced lawyers, failing to train
them, making judges do clerical work for 200/0 of the day, using irrational management models
and district definitions, ignoring our duty to identify and remediate discrimination, and ignoring the
increasingly complex caseloads which defy management by numbers.
Administrative judges should be managed by judges. That is the model used under the APA, so the
due process model we advocated above would also provide for greater efficiency, as it has for
decades at the National Labor Relations Board, the Department of Labor, and most every other
federal agency. The Commission has never even offered to work with AFGE and AJA to develop a pilot
project to determine if using the AJA model would in fact increase productivity and quality while
providing due process.
Conclusions
The SEP persists in ignoring the glaring problem of denial of due process. The SEP defines the
problem of "inefficiency" incorrectly, as a function of a supposed AJ failure to review each case upon
assignment and determine the most efficient way to proceed to a fair resolution of the case. The SEP
then proceeds on the basis of an erroneous definition to propose solutions which have been tested,
yet are unproven: new technology and more centralized management.
The AJA has proposed a different solution which would provide due process, create a rational and
streamlined organization chart, improve morale and decrease attrition, and improve efficiency. Within
this context, we would welcome the opportunity to explore how more productive judges manage their
caseloads, so that we could share insights as guidance to our members.
We look forward to discussing this model with you.
Cc: David Norken, Vice-President; Board Members Ricardo Cuevas, Debra Sharp, Charles Shubow,
Lesley Troope, Nancy Weekse
Footnotes
1 Imagine if the OFCCP suddenly told federal contractors or stakeholder employees of those
contractors that their ability to bid on federal contracts, or to raise claims of under representation of
women, persons with disabilities, racial or ethnic groups, arising under E.O. 11246, would not be
decided on the record, by a competent Department of Labor ALJ protected from political influence or
control, but would instead be heard by a lawyer assigned to the case by an unnamed SES manager
who is not a judge, who decides how much discovery is needed and whether a hearing is necessary,
and requires the lawyer to run a draft decision by him/her before it can be sent to the parties; if there
is a finding of a statutory violation, then the "draft" sits for months or years while it is reviewed off
the record by the unidentified manager [who may or may not be a lawyer] under undisclosed
criteria for undisclosed reasons. Further imagine that none of this process, except the process
before the "judge", is disclosed to the parties or taken under authority of any rules adopted after
public notice and hearing.
2 In fact, even before we began advocating for reform, the National Employment Lawyers Association
provided the same input to the Obama transition team:
,NEsA Halle ........ pl." .... "'JW7eN jU.o~I.I" .. PROPOSALS FOR FEDERAL SECTOR EMPLOYMENT
REFORM OF mE EEO PROCESS December 19, 2008 Statutory Changes: 1. Statutory change to permit
the EEOC to issue and enforce subpoenas in its adjudicatory role. 2. Statutory change so EEOC and
MSPB "judges" would have to be administrative law judges.
3 "Again, the AJA would like information about the case prioritization system, including who will be
doing it and how. If this requires additional personnel, we believe a better use of resources would be
to have additional administrative staff assigned to hearings units, given that most AJs are responsible
for almost all of their own clerical work."
4 The AJA, AFGE and some supervisors objected to Headquarters that even under current
Commission staffing, the announcements should identify the position as GS-13/-14.
5 There is no evidence that the backlogs are due to inefficiencies in busy districts. In fact some
districts with backlogs have higher rates of findings of discrimination and higher productivity per
AJ.
See AJ Mulligan's oral testimony, following her written testimony provided above
See other AJ's pleas.