The Federal EEO Complaint

Process:Increased Accountability
Measures Needed
Prepared for the
U.S. Equal Employment Office Commission
Office of Federal Operations
Director Carlton M. Hadden
Submitted by
The Coalition For Change, Inc. (C4C)
May 3, 2016
(Modified June 16, 2016)

STATEMENT OF NEED
The U.S. Equal Employment Opportunity Commission (EEOC)
needs to make Federal agencies / officials more accountable for
violating employment discrimination & whistleblower protection laws.
Agency EEO data, reported pursuant to the Notification and
Federal Employee Anti-discrimination and Retaliation Act (No
F EAR ) of 2 002 , u nde r s cor e s a cr i ti ca l ne e d f or e nh a n ce d
Accountability/transparency within the Federal EEO complaint
process.
The EEOC should adopt added accountability measures to
combat chronic retaliation against employees which:
negatively affects the governments operational efficiency,
increasingly puts employee and public safety at risk, and
annually costs the American taxpayer millions of dollars.

C4C STATEMENT OF CONCERN

Despite the No FEAR Act of 2002, Federal
workplace discrimination and unchecked
retaliation continues to adversely i m p a i r t h e
h e a l t h a n d w e a l t h o f c i v i l servants.
Notably, many qualified, highly skilled
and well-educated Black A m e r ic a n s ,
e i t h e r w o r k i n g o r s e e k i n g employment in
the Federal sector, suffer financially,
psychologically, and physically due to race
discrimination and reprisal by federal officials.

Image: Atlanta Black Star

C4C STATEMENT OF CONCERN

(contd)

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 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 (AJs) Finding Discrimination ONLY 4.2%. Source: EEOCs Annual Report of the
Federal Workforce FY 2014 Table B-15 FY 2014 Complaints Closed with Findings of Discrimination.

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

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.

Identify Unlawful Violation at Operating Unit Level

Example - U.S. Department of Agriculture (USDA )
Department of Agriculture (Cabinet
USDA Department
w/ 17 agencies and 18 major offices)
USDA

Forest Service (1 of 17 agencies)

National Forest System (10 Operating

USDA Units)
USDA

Lands and Realty Management (1 of 10 Operating

Unit under National Forest System)

Source: Information extracted from organizational chart

FY 2017 Budget Justification USDA Forest Service

Measure 2: Increase Use of Sanction

Authority For Agency Non-Compliance with 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 Administrations (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.]

Agencies routinely ignore provisions of 29 CFR 1614.

Example I: Kennedy v Vilsack
(EOC-570-2016-00127X)
USDA failed to timely comply
with EEOCs order to produce
complaint file by March 31, 2016.

Example II: 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.

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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.

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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.

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Measure 5: Disband Anonymity:

Identify Discriminating Official
Where EEOC issues a final finding of discrimination and no further
recourse for appeal at the administrative level exists, a supervisor found
guilty of violating a law should be listed by name ( in lieu of
S1 or Supervisor 1) in Federal Sector Appellate Decisions
and made available on EEOC page.

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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.

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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 EEOC issues a finding against supervisor/agency
and all appeal rights are exhausted--- the EEOC should
recommend discipline and forward discriminating
officials name to 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

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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 EEOCs Todd A. Cox replied in a (May 13,
2011) letter to Mr. Decatur: The m a t t e r s
y o u a r e c o n c e r n e d w i t h a r e 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 Saunders 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.

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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.

The EEOC should issue a statement opposing a

federal agencys 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.)

THE FEDERAL EEO COMPLAINT PROCESS:

INCREASED ACCOUNTABILITY
MEASURES NEEDED
Darkness Cannot Drive Out Darkness; Only

Light Can Do That

-- Dr. Martin Luther King, Jr.

Preparer:
Tanya Ward Jordan, President / Founder
The Coalition For Change, Inc. (C4C)
Federal EEO Complaint Analysis Review Team:
Paulette Taylor, Civil Rights Chair
Arthuretta Holmes Martin, Health and Wellness Chair
Terri Williams, Executive Administrator