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| EEOC Report on the Common Errors in Dismissing the Claims |
|
Chungsoo J. Lee's comments on EEOC Report: "Preserving Access to the Legal System:
Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural
Errors." Sept. 15, 2014
The EEOC Report is an alibi to shirk its responsibility to really address the lack of procedural
rights for the complainants in the federal EEO process, including EEOC hearing.
The Report only addresses and examines the EEO cases where the complainants appealed the
Final Agency Decisions to OFO and the OFO/EEOC reversed the Agency's decision. This is a
very small pool of cases upon which the Report was based. What about all those other cases
where the dismissal was never overturned by OFO or never appealed to OFO? The lucky few
cases that got reversed constitute a very small percentage of the total caseload in the federal
EEO process. So, how serious was the Report in contributing, as it claims it does, toward
making "a sustainable impact in reducing and deterring discriminatory practices in the
workplace"?
Those others cases the Report did not examine include all those cases that never passed the
'pre-complaint' process where numerous cases are never filed as formal complaints after the
'initial contact' with the EEO office, due to the blatant suppression and discouragement of the
EEO counselors exerting pressure on or misleading the aggrieved not to file and pursue the
EEO matters. I will say some more on that later.
The Report does not mention, let alone address, all those cases that were appealed but were
denied appeal by OFO itself and as result were never submitted for a Reconsideration to be
reviewed again by OFO--not submitted after having been discouraged by the OFO's decision
denying the initial appeal. So many OFO decisions favoring the complainants were issued after
the OFO reversed its own earlier decision against the complainant. Just look at the precedent
setting cases OFO/EEOC posts in its website. Many, if not majority, were cases that OFO itself
denied the appeal initially, only to be reversed by the OFO's own reconsideration process. Many
complainants do not know this and quit after OFO denies the appeal. They do not request
reconsideration.
These cases that were not successfully appealed to OFO were not considered by the Report.
There are far more cases that were never submitted for reconsideration than those that were;
and of those cases, how many were dismissed by the Agency on the same grounds that this
Report cites as being dismissed improperly? By solely relying on those cases that OFO
reversed, the Report missed the whole throng of other cases where same or other improper
grounds could have been the reasons for improper dismissal.
How about all those cases that were dismissed by the Agency but were never appealed to OFO.
Majority of cases dismissed by the Agency are not appealed with OFO--again the
discouragement and exhaustion factor plays here for the complainants not to pursue any further.
This is so because after months, if not years, of dealing with EEO staff and Agency attorney,
most just give up. They give up due to lack of money or energy or both. Could there be improper
dismissal of those cases by the Agency, aided further and supported by EEOC AJ's erroneous
decisions?
As Judge Bullock mentioned, the OFO appeal decisions are issued one, two or even three years
after the appeal. Some even longer. No mention of this is made in the Report that claims to be
a product of the agency-wide Strategic Enforcement Plan (SEP) that in turn claims “to have a
sustainable impact in reducing and deterring discriminatory practices in the workplace” (p. 3). If
the Report was serious about achieving the stated goal, it should have looked at all EEO cases,
even the cases that were never formally filed after the 'initial contact' with the EEO office.
Even though the cases the Report examined come from a very small pool of cases that make up
the entire caseload in the federal EEO process, the rate of reversal due to EEO counselor’s or
EEO Director’s “errors” is staggering: 30 to 45% in the last 5 years. These cases so dismissed
need not have been dismissed at all in the first place—only to be reversed some 2 or 3 years
after the appeal to OFO and then to be remanded back to the Agency for another 180 days
investigation period and then to undergo the EEOC hearing process, if requested, that may
stretch to 2 or 3 or more years thereafter. From the improper dismissal to the OFO reversal may
have already lapsed 2 or 3 years. Then after the reversal and remand, the case would have
undergone another 2 or 3 years, if a hearing is requested. So, some 4 to 6 years of wasteful
time would have to be lapsed due to the EEO director's initial "error" in dismissing the case,
when it should never have been dismissed at all in the first place. What a shame. There is no
consideration for the suffering of the complainants during all these delays and waste. There is
no accountability for the "errors" committed by the EEO managers or directors, who are very well
paid by the Agency.
It is worth noting in the Report that the Agencies engaged in law enforcement were among those
that had the highest rate of reversal. Justice Department at 53.8% in FY2009 and at 48.6% in
FY2012; Homeland Security at 42.6% in FY2011 and FY2010. Some of other Agencies with high
rate of reversal are: SSA at 48.4% in FY2011, VA at 47.8% in FY2012. Transportation at 51.9% in
FY2009. If I were an employee at the Justice Department, I would be very discouraged to file,
knowing this statistics. I will have only about half chance of getting my allegation accepted for
investigation by the EEO Director.
The highest rate of improper dismissal, according to the Report, was based on the EEO Director’
s decision that the case “failed to state a claim.” 57% of improper dismissal were based on the
purported “failure to state a claim” (p. 8). The 24% of improper dismissal were for the purported
untimely filing.
The Report analyzes the types of the improper dismissal decisions based on the “failure to
state a claim.” It provides legal analyses, not the occupational, psychological, organizational,
political analysis as to why the cases were so dismissed by the EEO directors. I doubt, as the
Report implies, that the EEO Directors were not aware of the legal requirements for asserting
the “failure to state a claim” claim. It is rather that they intentionally distort the allegations so as
to dismiss them as 'failure to state a claim.' To analyze the intentional distortion, the Report
must and should have looked into how the complaint was written and how EEO Directors framed
the issues from the written complaint submitted. In order words, the Report should have
examined the distortions of complainants’ statements and misrepresentation thereof and
sometimes omissions of complainant’s crucial statements that were important for determining
the claim. The Report failed to account for these flaws, setting aside the question as to whether
these flaws were intentional or not.
Instead, the Report recommends more "training and outreach," as if these “errors” committed in
such overwhelming rates were purely out of innocent ignorance or harmless ignorance. The
recommended trainings and outreach would only turn into a paid vacation for the EEO
counselors and the EEO Directors. Unless they are held accountable, and as long as they are
paid by the Agency against whom the complaints are filed, they 'error' rate won't change.
As to the EEO counselor's blatant suppression, misinformation, and discouragements against
filing a complaint, the EEO counselors do not recognize phone calls as constituting the 'initial
contact' with the EEO office. Even if they spoke with the aggrieved regarding EEO matters, they
often deny such contact was ever made. The consequence is that often the complainants
exceed the 45-day jurisdictional time limits due to the EEO contact being made more than 45
days from the event alleged to be discriminatory. Instead of making note of the 'initial contact,'
the EEO counselors routinely suppress such a contact and never record it.
EEO counselors frequently misinform the aggrieved so that the aggrieved decides not to file. For
example, the aggrieved is told that a complain cannot be filed against an acting manager. A
complaint cannot be filed because the vacancy announcement was cancelled (one of the
frequent grounds for improper dismissal cited by the Report). If no basis is mentioned, the
counselor routinely dismiss the complaint as not having to do with discrimination (another
frequent reasons for improper dismissal cited by the Report). These incidents do not constitute
'errors' on the part of the counselor. They constitute the blatant and active interference with the
aggrieved attempt to file.
EEO counselors frequently misrepresent the allegations, so as to be dismissed later.
Frequently the dates of the events alleged to be discriminatory are misquoted, so as to make the
claim untimely or easy to be dismissed. For example, the notice of disciplinary action is cited
instead of the effective date of the discipline, so as to make the claim untimely (another frequent
reasons cited by the Report). The vacancy number is incorrectly written, so as to confuse the
readers of the complaint. Such mistakes may turn out to be crucial when the complaint involves
multiple non-selection issues. By creating confusion in the mind of the EEOC Judge, later on,
the Agency attorney would attempt to dismiss or undermine the claim. And EEOC judges will
readily take the Agency's proffers over Complainant's assertions without exploring further
through the hearing process. For another example, the claim of denied sick leave requested is
written to be: the manager forwarding the request to HR, so that the claim could be dismissed
as 'failure to state a claim.' Again, these are not innocent 'errors' but indicate all the signs of
intentional suppression of claims. And then, the counselors have the gull to notify the
complainant that the formal complainant must be written the way the counselors have framed
them. Some even demand that the formal complaint be identical to the list of allegations the
counselors created. The Report does not address these dereliction of duties at all. I always tell
my clients never to believe the EEO counselors, the EEO investigators, and the EEO Directors--
unless what they say is written down in black and white.
The EEO counselors and the EEO investigators actively team up with the Agency attorneys to
combat at the complainant's claims. They gather information and records to defeat the claims
even before they are filed as a formal complaint. Armed with these information and records
(false or not), they actively dissuade the aggrieved from filing or convince the complainants into
dropping the claims. If claims are filed as as a formal complaint, in the case of the EEO
investigators, the questions toward the complainants are formulated by Agency attorneys or EEO
directors or from the templates created by attorneys or EEO directors, or based on the
information gathered from the management, so as to defeat the complainant's claim. Both
counselors and investigators routinely believe management's claims (without any supporting
records) than they do the complainants'. Where the paychecks comes from really matters.
The so called Local Reasonable Accommodation Coordinators are part of the management
team with a deliberate intention to deny the complainants of any reasonable accommodations.
They team up with HR, manages, and with the Employee and Labor Relations to deny and delay
the accommodations. Why do they request the physicians to come up with specific
accommodations? Physicians are not the occupational counselors or rehabilitation
counselors. Why are they keep on asking for more medical records to show what
accommodations would be necessary? What are the RA coordinators for? They sit in the
Reasonable Accommodation Committee and assault, humiliate, and demoralize the
complainants in concert with the managers and the Employee Labor Relations people. 5 or 6
teaming up against one lonely complainant, assaulting and humiliating the complainant for
daring to request accommodations.
Shall I go into the EEO counselor arranged mediations? Why is the agency attorney sitting in the
informal mediation and arguing the case against the complainant? Why is the supervisor there
against whom the complainant seeks to file a complaint? Mediation supposed to be held on
equal footing. Complainant is supposed to be equal with the counter part with whom he or she
is negotiating. Instead, complainant is unmatched by number and organizational power and
hierarchy. And the mediator readily stands on the side of the management, the source of his
paycheck.
If EEOC is serious about making a 'sustainable impact in reducing and deterring the
discriminatory practices in the workplace,' it should not turn blind eyes to the problems I listed
above. Don't tell me that EEOC does not know these problems. Just read the case file--if you
don't want to talk to the complainants.
EEOC must conduct a 'customer survey' and seek inputs from the complainants at every stage of
the federal EEO process. If they do this, I will be convinced that they are serious about what they
claim to accomplish.