Equal Employment Opportunity
DOD's EEO Pilot Program Under Way, but Improvements Needed to DOD's Evaluation Plan Gao ID: GAO-06-538 May 5, 2006Delays in processing of equal employment opportunity (EEO) complaints have been a long-standing concern. In 2000, as part of the Department of Defense's (DOD) fiscal year 2001 authorization act, Congress authorized DOD to carry out a 3-year pilot program for improving processes to resolve complaints by civilian DOD employees by testing procedures that would reduce EEO complaint processing times and eliminate redundancy, among other things. The act requires two reports from GAO--90 days after the first and last fiscal years of the pilot program's operation. In December 2005 and January 2006, we provided briefings on our initial review of the pilot program. This report (1) describes key features and status of the three programs and (2) assesses DOD's plan for evaluating the effectiveness of the pilot program.
In August 2004, the Secretary of Defense authorized 2-year programs in (1) Defense Logistics Agency (DLA), (2) the Defense Commissary Agency (DeCA), and (3) components of the U.S. Air Force (USAF) which became operational in fiscal year 2005. While the legislation stated that the pilot program is exempt from procedural requirements of current Equal Employment Opportunity Commission (EEOC) regulations, to a large extent two of the three programs were designed and are operating within existing EEOC requirements, with a specific emphasis on alternative dispute resolution (ADR) as encouraged in DOD's memo soliciting pilot program proposals. ADR techniques include, but are not limited to, conciliation, facilitation, mediation, or arbitration and usually involve the intervention or facilitation by a neutral third party. After the first year, program officials reported low case activity and stated that they plan to request approval from the Secretary to continue their respective programs for a third year. To carry out the programs, officials used similar strategies--outreach to inform eligible staff about the pilot programs, staff training, and the use of electronic data collection--but implemented them differently. Our assessment of DOD's evaluation plan for the pilot program found both strengths and limitations. A sound evaluation plan contains such features as criteria for determining program performance and measures that are directly linked to program objectives. Such key features increase the likelihood that the evaluation will yield sound results, thereby supporting effective program and policy decisions. Lacking these key features, DOD is limited in its ability to conduct an accurate and reliable assessment of the program's results, and Congress is limited in its ability to determine whether features of the overall program have governmentwide applicability. Officials from DOD's pilot program oversight entities have acknowledged shortcomings and have indicated a willingness to modify the plan.
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Report to Congressional Addressees:
May 2006:
Equal Employment Opportunity:
DOD's EEO Pilot Program Under Way, but Improvements Needed to DOD's
Evaluation Plan:
GAO-06-538:
GAO Highlights:
Highlights of GAO-06-538, a report to congressional addressees.
Why GAO Did This Study:
Delays in processing of equal employment opportunity (EEO) complaints
have been a long-standing concern. In 2000, as part of the Department
of Defense‘s (DOD) fiscal year 2001 authorization act, Congress
authorized DOD to carry out a 3-year pilot program for improving
processes to resolve complaints by civilian DOD employees by testing
procedures that would reduce EEO complaint processing times and
eliminate redundancy, among other things. The act requires two reports
from GAO”90 days after the first and last fiscal years of the pilot
program‘s operation. In December 2005 and January 2006, we provided
briefings on our initial review of the pilot program. This report (1)
describes key features and status of the three programs and (2)
assesses DOD‘s plan for evaluating the effectiveness of the pilot
program.
What GAO Found:
In August 2004, the Secretary of Defense authorized 2-year programs in
(1) Defense Logistics Agency (DLA), (2) the Defense Commissary Agency
(DeCA), and (3) components of the U.S. Air Force (USAF) which became
operational in fiscal year 2005. While the legislation stated that the
pilot program is exempt from procedural requirements of current Equal
Employment Opportunity Commission (EEOC) regulations, to a large extent
two of the three programs were designed and are operating within
existing EEOC requirements, with a specific emphasis on alternative
dispute resolution (ADR) as encouraged in DOD‘s memo soliciting pilot
program proposals. ADR techniques include, but are not limited to,
conciliation, facilitation, mediation, or arbitration and usually
involve the intervention or facilitation by a neutral third party.
After the first year, program officials reported low case activity and
stated that they plan to request approval from the Secretary to
continue their respective programs for a third year. To carry out the
programs, officials used similar strategies”outreach to inform eligible
staff about the pilot programs, staff training, and the use of
electronic data collection”but implemented them differently.
Our assessment of DOD‘s evaluation plan for the pilot program found
both strengths and limitations (see figure below). A sound evaluation
plan contains such features as criteria for determining program
performance and measures that are directly linked to program
objectives. Such key features increase the likelihood that the
evaluation will yield sound results, thereby supporting effective
program and policy decisions. Lacking these key features, DOD is
limited in its ability to conduct an accurate and reliable assessment
of the program‘s results, and Congress is limited in its ability to
determine whether features of the overall program have governmentwide
applicability. Officials from DOD‘s pilot program oversight entities
have acknowledged shortcomings and have indicated a willingness to
modify the plan.
Figure: Strengths and Limitations of DOD's Evaluation Plan:
[See PDF for Image]
[End of Figure]
What GAO Recommends:
GAO recommends that DOD
develop a sound evaluation plan that includes key evaluation features
to accurately and reliably assess the pilot programs‘ results.
DOD generally concurred with the recommendation and stated that it
would incorporate our recommended key features into the evaluation plan
as appropriate.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-538].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact George H. Stalcup at
(202) 512-9490 or Stalcupg@gao.gov.
[End of Section]
Contents:
Letter:
Results in Brief:
Background:
The Three Programs Emphasize ADR Techniques, Share Common
Implementation Strategies, and Report Low Case Activity:
Although Containing Some Strengths, Limitations in Its Evaluation Plan
Will Hinder DOD's Ability to Assess Pilot Program Results:
Conclusions:
Recommendations for Executive Action:
Agency Comments:
Appendixes:
Appendix I: EEO Laws and Regulations Applicable to Federal Employees:
Appendix II: Comments from the Department of Defense:
Appendix III: GAO Contact and Staff Acknowledgments:
Figures Figures:
Figure 1: The EEO Administrative Complaint Process with Related Time
Frames:
Abbreviations:
ADR: alternative dispute resolution:
AFB: Air Force Base:
AJ: administrative judge:
CORE: Compressed Orderly Rapid Equitable:
C.F.R.: Code of Federal Regulations:
DOD: Department of Defense:
DeCA: Defense Commissary Agency:
DLA: Defense Logistics Agency:
EEO: equal employment opportunity:
EEOC: Equal Employment Opportunity Commission:
ERO: early resolution opportunity:
MCAS: Marine Corps Air Station:
MD-110: Management Directive-110:
MSPB: Merit Systems Protection Board:
PECP: Pilot for Expedited Complaint Processing:
RESOLVE: Reach Equitable Solutions Voluntarily and Easily:
USAF: United States Air Force:
Letter:
May 5, 2006:
Congressional Addressees:
Federal employees or applicants for employment who allege that they
have been discriminated against by a federal agency may file a
complaint with that agency.[Footnote 1] The Equal Employment
Opportunity Commission (EEOC) has established procedures for federal
agencies to process equal employment opportunity (EEO) complaints,
including time frames for taking certain actions, and use of
alternative dispute resolution (ADR) programs.[Footnote 2] The federal
EEO complaint process consists of two stages--informal, or precomplaint
counseling, and formal, when a complaint is filed with the agency.
Delays in the processing of EEO complaints have been a long-standing
concern of EEOC, other federal agencies, and Congress. As an example of
such delays, from fiscal years 1993 to 2003, the time the federal
government took to investigate a formal EEO complaint rose from an
average low of 171 days to an average high of 343 days.[Footnote 3]
In 2000, as part of DOD's fiscal year 2001 authorization act,[Footnote
4] Congress authorized the Department of Defense (DOD) to carry out a 3-
year pilot program for improving processes for the resolution of EEO
complaints by civilian employees of DOD. The legislation provided that
the pilot program was to include procedures to reduce EEO complaint
processing times, eliminate redundancy, reinforce accountability, and
provide for early resolution. While not prescribing details of how the
pilots were to be designed or operated, the authorizing legislation
provided that complaints processed under the pilot program shall be
subject to the procedural requirements established for the pilot
program and exempt from the procedural requirements or other
regulations, directives, or regulatory restrictions prescribed by EEOC.
The programs DOD authorized in August 2004 were in (1) the Defense
Commissary Agency (DeCA), (2) Defense Logistics Agency (DLA), and (3)
components of the U.S. Air Force (USAF), and they became operational in
fiscal year 2005.
The 2001 authorization act requires GAO to submit two reports on the
pilot program--90 days after the first and last fiscal years of pilot
program operation. We provided briefings on the results of our initial
review of common features and preliminary case activity for the three
programs to interested congressional committees in December 2005 and
January 2006. This report provides additional information by (1)
describing key features and status of the programs and (2) assessing
DOD's plan for evaluating the effectiveness of the pilot program.
To describe the three programs and their key features, we reviewed
documents provided by DOD officials and interviewed those officials. In
addition, we reviewed information about the federal regulations
governing the federal EEO complaint process[Footnote 5] and our
reports.[Footnote 6] To assess DOD's plan for evaluating the
effectiveness of the pilot program, we reviewed the plan and DOD's 6-
and 9-month evaluation reports. We also interviewed DOD officials about
the evaluation reports. We consulted social science and evaluation
literature, along with our publicized guidance, to identify key
features of an evaluation plan. On the basis of criteria gathered from
these sources, we identified strengths and limitations of DOD's plan.
As the pilot program and the evaluation efforts were already under way
when we began our review, we focused on the plan's strengths and those
specific limitations where it would still be possible for DOD to
implement improvements.
Program officials provided data on case activity for the three
programs. The data are preliminary and because we do not use them to
develop findings, we did not conduct a data reliability assessment.
Because we did not assess the reliability of the data, the data are of
undetermined reliability.
We conducted our review in the Washington, D.C., metropolitan area from
August 2005 through March 2006 in accordance with generally accepted
government auditing standards.
Results in Brief:
All three programs are under way and emphasize the use of ADR
techniques to resolve allegations before they reach the formal
complaint stage--an option already available under the current EEO
regulations and encouraged in DOD's memo soliciting pilot program
proposals. While the legislation provided DOD considerable latitude in
designing its program, to a large extent, two of the three pilot
programs DOD authorized were designed to operate within the parameters
existing under law and EEOC regulations. In the case of DLA, program
officials indicated that the program's ADR features are the same as
those in the current EEO process. DeCA's program emphasizes early
resolution before the start of the informal precomplaint stage of the
current process through the use of a trained EEO facilitator who
attempts to negotiate resolution. In addition, according to a DeCA
official, DeCA's program seeks to reduce processing time frames in the
formal stage of the complaint process and replaces paper documents with
electronic files. Unlike the other two programs, USAF's focuses on the
formal stage, combining the two-step investigative and hearing phases
of the current EEO process into a single fact-finding process aimed at
reducing processing time and including voluntary participation in ADR.
The three programs also featured common implementation strategies--
DeCA's and USAF's programs conducted outreach to inform eligible staff
about the programs, and all three programs conducted staff training and
used electronic data collection. According to DOD and the pilot program
officials, as a result of the low case activity, program officials will
seek to extend their respective programs for an additional (third)
year.
Our initial assessment of DOD's evaluation plan for the pilot program
found both strengths and limitations. One strength of the plan was the
inclusion of forms for collecting baseline data (before the programs
began) and program data, which provides a tool for the programs to
measure some aspects of their progress. Although DOD developed an
evaluation plan for the overall pilot program, the plan lacked some key
features of a sound evaluation plan, including measures that are
directly linked to the program objectives, criteria for determining
individual pilot program performance, and an appropriate data analysis
plan for the evaluation design. The lack of established key evaluation
features in DOD's plan increases the likelihood of insufficient data,
further limiting confidence in pilot program results. Without
confidence in pilot program results, DOD will be limited in its
decision making regarding this pilot program, and Congress will be
limited in its decision making about the pilot program's potential
broader application.
We provided a draft of this report to the Secretary of Defense for his
review and comment. DOD generally concurred with our recommendations.
Concerning our recommendation that DOD establish regular intra-agency
exchange of information, DOD stated that it would begin convening
quarterly meetings with DOD pilot program managers to discuss and
exchange relevant information regarding pilot implementation processes.
As for the recommendation to develop a sound evaluation plan, DOD
partially concurred and stated that it will consider and incorporate
our recommended key features into its pilot program evaluation plan as
appropriate. DOD's written comments are reprinted in appendix II.
Background:
As of January 1, 2000, all federal agencies covered by EEOC regulations
were required to establish or make available an ADR program for both
the informal and formal complaint stages of the EEO process.
On March 9, 2000, at a joint hearing held by the Subcommittee on Civil
Service of the House Committee on Government Reform and the
Subcommittee on Military Readiness of the House Armed Services
Committee, the Navy discussed the results of its experiences under its
18-month pilot program for resolving EEO complaints through the use of
ADR, which resulted in resolution on an average of 31 days.
The Floyd D. Spence National Defense Authorization Act, for fiscal year
2001, authorized the Secretary of Defense to carry out at least three
pilot programs--one at a military department and two at DOD agencies.
The programs were authorized to operate for 3 years. The act exempts
the programs from EEOC's procedural requirements or
restrictions.[Footnote 7]
In 2004, DOD authorized the following as pilot programs: (1) DLA, which
provides worldwide logistics support--munitions and supplies--for the
missions of military departments; (2) DeCA, which operates a worldwide
chain of commissaries providing groceries to military personnel,
retirees, and their families at a discount; and (3) 31 bases of the
USAF, accounting for about one-third of USAF bases with federal EEO
programs. The pilot programs were authorized by the Secretary for 2
years with an option for an additional (third) year.
The legislative objectives for the programs are to:
* reduce processing time,
* eliminate redundancy,
* reinforce local management and chain of command accountability, and:
* provide the parties involved with early opportunity for resolution.
The legislation also provides that pilot program participants
voluntarily participate in the pilot program, and that participants
maintain their right to appeal final agency decisions to EEOC and file
suit in federal district court as is the case in the federal EEO
complaint process.
The Office of the Deputy Undersecretary of Defense for Civilian
Personnel Policy, the Office of the Deputy Undersecretary for Equal
Opportunity, and the Office of Complaint Investigations within the
Civilian Personnel Management Service have ongoing responsibility for
oversight, monitoring, and evaluation of the overall pilot program.
Under EEOC regulations, during the informal, or precomplaint counseling
stage, ADR techniques can be used. Counselors are to advise individuals
that, when the agency agrees to offer ADR in the particular case, they
may choose to participate in either counseling or in ADR. If the matter
is not resolved by counseling or if ADR is unsuccessful, the counselor
is required to inform the employee in writing of his or her right to
file a formal discrimination complaint with the agency. ADR can also be
used after an agency receives a formal complaint.
After a complainant files a formal discrimination complaint, the agency
must decide whether to accept or dismiss the complaint and notify the
complainant. If the agency dismisses the complaint, the complainant can
appeal the dismissal to EEOC.[Footnote 8] If the agency accepts the
complaint, it has 180 days to investigate the accepted complaint and
provide the complainant with a copy of the investigative file.[Footnote
9] Within 30 days of receipt of the copy of the investigative file, the
complainant must choose between requesting (1) a hearing and decision
from an EEOC administrative judge (AJ)[Footnote 10] or (2) a final
decision from the agency. When a hearing is not requested, the agency
issues a final decision. A complainant may appeal an agency's final
decision to EEOC.
In cases where a hearing is requested, the AJ has 180 days to issue a
decision and send the decision to the complainant and the agency. If
the AJ issues a finding of discrimination, he or she is to order
appropriate relief. After the AJ decision is issued, the agency can
issue a final order notifying the complainant whether or not the agency
will fully implement the decision of the AJ, and the employee can file
an appeal with EEOC.[Footnote 11] If the agency issues an order
notifying the complainant that the agency will not fully implement the
decision of the AJ, the agency also must file an appeal with EEOC at
the same time. See appendix I for more details and associated time
frames related to the EEO complaint process.
The Three Programs Emphasize ADR Techniques, Share Common
Implementation Strategies, and Report Low Case Activity:
Although features of the three programs vary by agency and focus on
different stages of the complaint process, they all emphasize the use
of ADR techniques available under the current federal EEO process. They
also share common implementation strategies, including outreach to
eligible staff to inform them about the programs, staff training, and
electronic data collection. In its 9-month evaluation, DOD observed
that pilot program activity had been lower than anticipated; DOD did
not provide a baseline for its comparison or elaborate on the reason
for this occurrence. After 12 months, program officials continue to
report low case activity.
DOD's Pilot Program Emphasizes ADR Techniques:
In developing the overall EEO pilot program, DOD allowed DLA, DeCA, and
USAF to determine their individual program design. However, in its memo
soliciting pilot program proposals, DOD encouraged potential
participants to work with the Office of Complaint Investigations to
develop the format and content of their proposals, offering the
assistance of the Office's experienced staff of certified complaint
investigators and mediators with success in using ADR techniques. Two
of the programs--DLA and DeCA--emphasize the use of ADR in the informal
stage, consistent with federal EEO regulations. Program officials said
that their programs are attempting to address the legislative objective
of providing early opportunity for resolution by focusing on ADR. The
third program, in selected bases of the USAF, changes the formal stage
of the federal EEO process by combining the investigative and hearing
phases after a complainant has filed a formal complaint. This program
also emphasizes the use of ADR techniques both during the informal
stage as well as at the time a complainant files a formal complaint.
DLA's Pilot Program:
DLA's program, Pilot for Expedited Complaint Processing (PECP), began
in October 2004 at DLA headquarters in Fort Belvoir, Va.[Footnote 12]
DLA considers:
several types of cases, such as those that challenge government policy,
inappropriate for PECP and screens them out.[Footnote 13]
The PECP process is similar to the informal stage of the current EEO
process. DLA officials said the PECP process has three steps. The first
step occurs when an employee who believes he or she has been
discriminated against makes initial contact with DLA's EEO office. An
EEO Intake Specialist collects specific information about the
employee's concerns and drafts an intake report, which includes a
description and basis of the claim. The EEO Intake Specialist advises
the employee orally and in writing about (1) PECP and how it compares
to the federal counseling process and (2) the employee's right to opt
out of the pilot program at any time before the filing of a formal
complaint. The second step begins when the employee chooses to
participate in PECP. At this time, the EEO Intake Specialist discusses
and offers the employee ADR. The EEO Intake Specialist also informs the
employee that participating in ADR is optional and can be used at any
stage of the complaint process. The EEO Intake Specialist considers two
methods of ADR--mediation or facilitation. Mediation is the primary
method used by PECP.[Footnote 14] According to DLA, the method of ADR
used is based on the employee's claim and the EEO Intake Specialist's
assessment of the method that would more likely encourage communication
between the employee and management and resulting resolution.
Under the third step, ADR takes place. DLA pilot program officials
acknowledged that the pilot program's ADR features do not differ from
those offered under the current EEO process. DLA has an ADR program
called Reach Equitable Solutions Voluntarily and Easily (RESOLVE),
which is used when mediation is offered. RESOLVE is managed by DLA's
General Counsel. According to DLA officials, RESOLVE mediators cannot
mediate precomplaints or complaints involving organizations they may
service in another capacity, thus ensuring the neutrality of the
mediator.[Footnote 15]
DeCA's Pilot Program:
DeCA's program, Early Resolution Opportunity (ERO), began in February
2005 and covers 23 stores[Footnote 16] in three zones (DeCA West Zone
16-San Diego, Calif; DeCA East Zone 28-Virginia Beach, Va; and DeCA
East Zone 6-San Antonio, Tex.) Using ADR techniques, ERO seeks to
provide early resolution opportunities, because according to DeCA,
ineffective communication between employees and supervisors or managers
often results in perceptions of discrimination. Moreover, DeCA believes
that disputes can be resolved before they enter the informal counseling
stage if a trained EEO facilitator[Footnote 17] can intervene to
negotiate resolution. Cases that involve alleged violent acts, theft,
sexual harassment, termination, or may be precedent setting, are
ineligible for ERO.[Footnote 18]
ERO is divided into two steps. In the first step, a trained DeCA
facilitator attempts to resolve a claim before the start of the
informal stage of the current process. Employees at stores
participating in ERO can call a toll-free number to discuss their
concerns with a trained facilitator. For example, an employee could
call about perceived discrimination over schedule changes, and the
facilitator may discuss what had occurred and rationale for schedule
changes (e.g., to cover absences). According to DeCA officials, some
employees "self screen" during the facilitation process, deciding not
to pursue an EEO complaint or to pursue another avenue, such as the
negotiated grievance process.[Footnote 19]
The second step of ERO, which follows if facilitation is unsuccessful
in resolving the employee's concerns, involves calling in a third-party
mediator. According to a DeCA official, DeCA uses mediators from DOD's
Office of Complaint Investigations, because they are trained,
experienced ADR professionals, and have a greater perception of
neutrality as they do not work for DeCA.
If mediation fails, an individual may choose to file a formal
complaint. According to a DeCA official, ERO seeks to reduce the
processing time of the formal stage. To help achieve this goal, DeCA
reduces processing times for two phases of the formal stage of the
complaint process: (1) after a complainant files a formal complaint,
DeCA has set a goal in ERO of 14 days to accept, partially accept, or
dismiss it; and (2) after the report of investigation is completed,
DeCA sends a notice informing the complainant that he or she has 7 days
to either request a hearing or a final agency decision, reducing the
time from 30 days under EEOC regulations. In addition, to further
reduce processing time for ERO cases, paper documents are replaced with
electronic files.[Footnote 20] Finally, according to a DeCA official,
officials from DeCA and the Office of Complaint Investigations can
download relevant case documents from a secure shared drive for
complaints filed under both ERO and under the current EEO process.
USAF's Pilot Program:
USAF's program, called Compressed Orderly Rapid Equitable (CORE),
focuses on the formal phase of the EEO complaint process. The program
began January 1, 2005, at 29 continental U.S. sites and 2 overseas
offices that we refer to as test bases.[Footnote 21] Although the 31
test bases account for less than one-third of all USAF bases with EEO
programs, they produce over 80 percent of all USAF EEO complaints.
Cases that involve class and mixed-case complaints[Footnote 22] or
cases related to claims already accepted under the current federal EEO
complaint process are not eligible to participate in CORE.[Footnote 23]
CORE has a two-step process that begins at the time the complainant
files a formal complaint. Until a complaint is filed, USAF officials
attempt early resolution of allegations of discrimination in the
informal stage using the current federal EEO process.[Footnote 24] If
resolution is not achieved during this stage, the complainant must
choose between CORE and the current federal EEO process. The first step
of CORE involves mediation. If the complainant declines mediation or
mediation is unsuccessful, step two begins, and a CORE Fact-Finding
Conference is conducted. USAF defines this conference as a "non-
adversarial, impartial fact-gathering procedure." The conference is
conducted by a CORE fact-finder, provided by the Office of Complaint
Investigations. During the conference, the fact-finder hears testimony
from witnesses and receives documentary evidence; also at this time, a
verbatim transcript is taken by a certified court reporter. Following
the conference, the fact-finder completes the record of the complaint
and recommends a decision[Footnote 25] in the case to the director of
the USAF Civilian Appellate Review Office. The director of the USAF
Civilian Appellate Review Office may accept, reject, or modify the fact-
finder's recommended decision. The director then prepares a final
agency decision for signature by the director of USAF Review Boards
Agency.[Footnote 26] The director of USAF Review Boards Agency issues
the final agency decision. Any further action on the complaint,
including rights to appeal to EEOC and file a lawsuit, are governed by
current federal EEO complaint procedures.
According to USAF, by combining the investigative and hearing phases of
the current federal EEO complaint process, USAF aims to issue a final
agency decision within 127 days or less of filing the formal complaint;
the current process can take up to 360 days plus another 70 days to
provide the complainant and the agency their allotted time for decision
making. USAF officials also indicated that through the CORE Fact-
Finding Conference, each complainant gets their "day in court," whereas
under the current EEO process, complainants often wait months to
request a hearing and can have their complaint dismissed by an EEOC AJ
without a hearing.
DOD's EEO Pilot Programs Share Common Implementation Strategies:
The three programs share common implementation strategies but implement
them differently. In our review of the programs and subsequent
discussions with DOD and program officials, DeCA and USAF conducted
some level of outreach to program-eligible employees to inform them
about the programs. For example, DeCA officials went to participating
stores and handed out brochures describing ERO. According to USAF
program officials, outreach on CORE included sending a letter to all
participating bases from the Chief of Staff for Personnel as well as a
notice to the unions. Additionally, CORE was publicized in USAF news
service and governmentwide media.
We also found that agencies varied in how they trained their EEO
employees about the programs. USAF officials used contractors to train
some employees in CORE over a 1-week period; in turn, those employees
trained others. DLA officials had informal in-house employee training.
DeCA sent EEO officials and an attorney from its headquarters trained
in ERO to each of its three zones to train EEO managers as well as
managers and supervisors at its 23 stores.
Finally, all three programs used electronic data collection for
tracking and monitoring, with each program developing its own
electronic data collection method. For example, USAF uses EEO-Net
system and software to collect program data.[Footnote 27] USAF also
uses USAF-specific software, the Case Management and Tracking System,
to manage the EEO process, including CORE, and an electronic case
identifier to mark CORE cases to help in monitoring those program cases
that reach EEOC on appeal. DeCA currently uses an Access database to
track ERO activity, and DLA uses an Excel spreadsheet to track PECP
activity.
Officials from both the programs and DOD's EEO pilot program oversight
entities have indicated their willingness to share information. As we
have previously reported, by assessing their relative strengths and
limitations through collaboration,[Footnote 28] agencies can look for
opportunities to address resource needs by leveraging each others'
resources and obtaining additional benefits that would not be available
if they were working separately. While the focus of our earlier work
was on coordination between agencies from different departments, the
findings would also be applicable to agencies within a department that
are engaged in similar activities.
DOD's EEO Pilot Programs Report Low Case Activity:
In its 9-month evaluation report, DOD stated that program activity for
all three programs had been lower than anticipated. At the end of the
first year, program officials reported continued low program activity.
However, in its report, DOD did not provide a baseline for its
comparison or elaborate on the reason for this occurrence. Instead,
DOD's evaluation plan states that data collected during the pilot
program are to be measured against fiscal year 2004 baseline data.
Therefore, we are including fiscal year 2004 data as reported to EEOC
for each program for comparison purposes. Since many cases are still
going through the program process, for comparison, we report only the
number of initial contacts or formal complaints.
According to DeCA officials, from January 1, 2005, through January 31,
2006, 42 employees contacted DeCA's EEO office; of those, 41 were
offered participation in ERO, and all opted for ERO. Of those who
completed ERO, 16 did so with resolution; 9 did so without resolution,
and 14 are still in process. Data are not available for DeCA test
stores for fiscal year 2004, the year before ERO was
implemented.[Footnote 29]
According to DLA officials, from January 1, 2005, through January 31,
2006, 15 employees contacted DLA's EEO office; of those, 13 were
offered participation in PECP, and 12 opted for it. Of those who
completed PECP, 10 did so with resolution; 1 declined participation,and
1 withdrew the precomplaint; 1 opted out of PECP. For fiscal year 2004,
the year before DLA implemented PECP, 26 employees contacted DLA's
headquarters EEO office.
According to USAF officials, from January 1, 2005, through January 31,
2006, a total of 634 formal complaints were filed USAF-wide. The CORE
process was available to 534 of the complainants. Of those complainants
offered CORE, 104 opted to process their complaint using CORE. Of these
104, 63 have been closed with resolution, and 28 CORE cases are still
in progress. Thirteen complainants opted out of CORE and chose to
return to the current EEO process. For fiscal year 2004, the year
before USAF implemented CORE, 667 formal complaints were filed USAF-
wide; of these, 488 were filed at what are now CORE test sites.
DOD's 9-month report stated that case activity was lower than expected.
As a result of the low case activity, program officials have said they
will seek to extend their respective programs for an additional (third)
year. According to the authorizing memo from DOD implementing the pilot
program, in April 2006 program officials can request to extend the
pilot program for a third year. At the time of this report, DeCA and
USAF had made requests of DOD to extend the operation of their pilot
programs for a third year.
Although Containing Some Strengths, Limitations in Its Evaluation Plan
Will Hinder DOD's Ability to Assess Pilot Program Results:
Our initial assessment of DOD's evaluation plan for the pilot program
found both strengths and limitations. One strength of the plan was the
inclusion of forms for collecting baseline data (before the programs
began) and pilot program data, which provides a tool for the pilot
programs to measure some aspects of their progress. Although DOD
developed an evaluation plan for the overall pilot program, the plan
lacked some key features of a sound evaluation plan, including measures
that are directly linked to the program objectives, criteria for
determining pilot program performance, and an appropriate data analysis
plan for the evaluation design. Without such features, DOD will be
limited in its ability to conduct an accurate and reliable assessment
of the programs' results. In addition, the lack of established key
evaluation features in DOD's plan increases the likelihood of
insufficient or unreliable data, further limiting confidence in pilot
program results. Without confidence in pilot program results, DOD will
be limited in its decision making regarding this pilot program, and
Congress will be limited in its decision making about the pilot
program's potential broader application.
Officials from DOD's pilot program oversight entities have acknowledged
shortcomings and have indicated a willingness to modify the plan.
Strengths of DOD's Evaluation Plan:
Considering the evaluation plan itself and interviews with DOD
officials, we found that DOD's plans for assessing the pilot programs
had some strengths, including:
* Forms in the evaluation plan for collecting baseline data (before the
pilot programs began) and pilot program data. According to the
evaluation plan, baseline data from fiscal year 2004 are recorded on a
template (i.e., a modified version of EEOC Form 462) appropriate to the
part of the complaint process the pilot program focuses on. Data
collected during the programs will be measured against the baseline
data collected in the prior year's EEOC Form 462.[Footnote 30] Pilot
program and nonpilot program data are to be collected by an Individual
Data Report form, which is to collect processing-time data, comparative
information on early ADR, and early management involvement in cases at
each pilot program site. Comparing data from the modified EEOC Form 462
to data from the program as well as to nonprogram cases is expected to
help DOD determine whether processing times and redundancy were reduced
concerning early resolution and streamlining as a result of the pilot
program.
* Detailed time frames, roles and responsibilities, and report planning
in the evaluation plan. The evaluation plan includes a schedule that
details tasks, roles and responsibilities, and milestones for
completing set tasks in evaluating the pilot program. This schedule
provides a framework that is organized and easy to follow.
* Inclusion of reasonable research design. The evaluation plan includes
a reasonable method for assessing pilot program results. Because the
pilot program legislation mandates voluntary participation in the
program, DOD was restricted from one form of design (i.e., randomly
assigning employees alleging or filing complaints of discrimination to
participate in the pilot program). As a result, DOD chose to compare
prepilot and postpilot program data as well as pilot and nonpilot
program cases.
In addition, DOD officials said that the plan can be adjusted to the
extent feasible to ensure that the data collected are sufficient for
evaluating the pilot program.
Without Key Evaluation Plan Features, DOD Will Be Limited in Its
Ability to Assess Pilot Programs' Results:
DOD's plan for evaluating the effectiveness of the pilot program lacks
some key features that are essential to assessing performance. Well-
developed evaluation plans, which include key evaluation features, have
a number of benefits, perhaps most importantly, increasing the
likelihood that evaluations will yield methodologically sound results,
thereby supporting effective program and policy decisions. The lack of
established key evaluation features in DOD's plan increases the
likelihood of insufficient or unreliable data, limiting confidence in
pilot program results. Without confidence in pilot program results, DOD
will be limited in its decision making regarding this pilot program,
and Congress will be limited in its decision making about the pilot
program's potential broader application.
Some key features of a sound evaluation plan include:[Footnote 31]
* well-defined, clear, and measurable objectives;
* measures that are directly linked to the program objectives;
* criteria for determining pilot program performance;
* a way to isolate the effects of the pilot programs;
* a data analysis plan for the evaluation design; and:
* a detailed plan to ensure that data collection, entry, and storage
are reliable and error-free.
DOD's evaluation plan contains the following limitations:
* The objectives in DOD's evaluation plan are not well defined or
clear, which makes measurement problematic. For example, the evaluation
plan identifies management accountability as an objective without
defining it, who it applies to, and how it will be measured. Without
well-defined, clear, and measurable objectives, the appropriate data
may not be collected, thus hindering the assessment of pilot program
progress.
* DOD's data collection efforts are not linked to objectives in the
evaluation plan. For example, the evaluation plan contains a variety of
surveys that the individual pilot programs can use to measure customer
satisfaction, but customer satisfaction is not included in the
evaluation plan as an objective of the plan. Directly linking
objectives and measures is a key feature of an evaluation plan. Without
such linkage, data collection efforts may not directly inform stated
objectives, and in turn, may not inform the evaluation effort.
* DOD's evaluation plan does not establish standards for evaluating
pilot program performance. For example, DOD's plan does not state the
amount or type of change required to indicate that a pilot program has
succeeded in reducing processing time. Without targets or standards for
determining success, it will be difficult to determine if the pilot
program was effective.
* DOD's evaluation plan does not mention controlling for possible
outcomes that are attributable to factors other than the effects of the
programs. A preferred research method is to use random assignment of
program participants to provide greater confidence that results are
attributable to a program. As we mentioned, DOD was restricted from
randomly assigning employees alleging or filing complaints of
discrimination to participate in the pilot program. As a result, other
factors, such as the type of complaint, complainant, or the mediator
may affect pilot program outcomes. Establishing controls for such
factors could help isolate the effects attributable to the pilot
programs. When an evaluation design involves, for example, a comparison
between prepilot and postpilot program conditions, the research design
should include controls to ensure that results will be attributable to
the pilot program and not to other factors.
* DOD's evaluation plan does not explain how the data will be analyzed.
Although the evaluation plan has templates for collecting data,
including pilot program baseline data, individual data reports, and
various surveys, it does not state how the data collected will be
analyzed. A data analysis plan is a key feature of an evaluation plan
as it sets out how data will be analyzed to determine if program
objectives have been met. Without a data analysis plan, it is not clear
how the data will be analyzed to inform the objectives of the
evaluation and assess the performance of the programs.
* DOD's plan does not explain how the integrity of the data collected
will be ensured. A detailed plan to ensure that data collection, entry,
and storage are reliable and error-free is a key feature of an
evaluation plan that gives greater confidence to data quality and
reliability and to any findings made from these data. Without a
detailed plan to ensure that data collection, entry, and storage are
reliable and error-free, confidence in pilot program results will be
limited.
Conclusions:
All three programs share a common feature of emphasizing the use of ADR
to meet the legislative mandate to improve the efficiency of the EEO
complaint process. In addition, although authorized to operate outside
of current EEOC regulations, to a large extent, two of the three
programs have been designed by DOD to operate within the requirements
of current regulations. While sharing common strategies in such areas
as electronic data collection, the pilot programs implemented them
differently. As the challenges of the 21st century grow, it will become
increasingly important for DOD to consider how it can maximize
performance and results through the improved collaboration of its
organizations. Officials from the programs and DOD's EEO pilot program
oversight entities have indicated their willingness to share
information and strategies.
To better ensure that it will provide useful results, DOD needs to make
changes to its evaluation plan. Although DOD's evaluation plan had some
strengths, the plan's shortcomings may impede DOD's ability to produce
sound results that can inform both program and policy decisions
regarding the overall pilot program. The lack of key evaluation
features, such as clear and measurable objectives, measures linked to
these objectives, and established criteria for determining pilot
program performance may limit confidence in pilot program results.
Recommendations for Executive Action:
To improve the performance and results of the pilot program, we
recommend that the Secretary of Defense direct the Deputy
Undersecretary of Defense for Civilian Personnel Policy, the Deputy
Undersecretary for Equal Opportunity, and the Civilian Personnel
Management Service to take the following actions:
Establish regular intra-agency exchanges of information on outreach
strategies, training, and electronic data collection from which the
pilot programs could achieve potential benefits that would not be
available if working separately.
Develop a sound evaluation plan to accurately and reliably assess the
pilot programs' results, including such key features as:
* well-defined, clear, and measurable objectives;
* measures that are directly linked to the program objectives;
* criteria for determining pilot program performance;
* a way to isolate the effects of the pilot programs;
* a data analysis plan for the evaluation design; and:
* a detailed plan to ensure that data collection, entry, and storage
are reliable and error-free.
Agency Comments:
We provided a draft of this report to the Secretary of Defense for his
review and comment. The Principal Deputy Undersecretary of Defense
provided written comments, which are included in appendix II.
DOD generally agreed with our recommendations. Regarding the
establishment of regular intra-agency exchanges of information among
the pilot programs to leverage potential benefits, DOD stated that it
will hold quarterly meetings with pilot program managers. Concerning
the development of an evaluation plan that accurately and reliably
assesses the pilot programs' results, DOD partially concurred with the
recommendation and stated that it would consider and incorporate the
recommended key features into the evaluation plan as appropriate.
However, DOD also stated that the purpose of the plan was to assist
pilot program evaluators in their work by specifying those procedures,
tools, and objectives that would be unique to the pilot programs. In
its comments, DOD reasons that because all pilot program officials
agreed on a particular objective, which was common to both the pilot
and traditional EEO complaint procedures, that it was not necessary to
link data collection efforts to that objective or incorporate either
the objective or the data collection effort in the evaluation plan.
Because the plan is the long-term guide for the pilot program
evaluation process and because staff changes occur, it is important
that DOD include all objectives and methods they intend to use in the
plan, allowing the evaluation process to be more transparent and
provide clearer guidance to the pilot program officials on evaluation
procedures.
In its response, DOD also commented on our observation that to a large
extent two of the three pilot programs were designed and are operating
within existing EEOC requirements. DOD noted that this was due in large
part to a presidential memorandum issued when the legislation was
signed. The memorandum, which addressed the implementation of the pilot
program, required that a complaining party be allowed to opt out of the
pilot program at any time. According to DOD, adhering to this
requirement necessitated using a similar design to the current EEO
process so that complaining parties who decided to opt out would not be
penalized by having to start at the very beginning of the current EEO
complaint process. It is not clear to us that ensuring the ability to
opt out at any point necessitates returning the complaining party to
the very beginning of the current EEO process in all cases. Rather, the
complaining party would be returned to the current EEO process at an
appropriate point based on what was achieved through the pilot program
process. Overall, we see nothing in the presidential memorandum that
would limit DOD's legitimate use of the procedural flexibility granted
by Congress through the pilot program authority.
We will send copies of this report to other interested congressional
parties, the Secretary of Defense, and the Chair of EEOC. We also will
make copies available to others upon request. In addition, the report
is available on GAO's home page at [Hyperlink, http://www.gao.gov].
If your staff have questions about this report, please contact me on
(202) 512-9490. Key contributors to this report are listed in appendix
III.
Sincerely yours,
Signed by:
George H. Stalcup:
Director, Strategic Issues:
List of Congressional Addressees:
The Honorable John Warner:
Chairman:
The Honorable Carl Levin:
Ranking Member:
Committee on Armed Services:
United States Senate:
The Honorable Duncan Hunter:
Chairman:
The Honorable Ike Skelton:
Ranking Member:
Committee on Armed Services:
House of Representatives:
The Honorable George V. Voinovich:
Chairman:
The Honorable Daniel K. Akaka:
Ranking Member:
Subcommittee on Oversight of Government Management, the Federal
Workforce, and the District of Columbia:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
The Honorable Jon C. Porter:
Chairman:
The Honorable Danny K. Davis:
Ranking Member:
Subcommittee on the Federal Workforce and Agency Organization:
Committee on Government Reform House of Representatives:
[End of section]
Appendix I: EEO Laws and Regulations Applicable to Federal Employees:
Title VII of the Civil Rights Act of 1964, as amended, makes it illegal
for employers, including federal agencies, to discriminate against
their employees or job applicants on the basis of race, color,
religion, sex, or national origin.[Footnote 32] The Equal Pay Act of
1963 protects men and women who perform substantially equal work in the
same establishment from sex-based wage discrimination.[Footnote 33] The
Age Discrimination in Employment Act of 1967, as amended, prohibits
employment discrimination against individuals who are 40 years of age
or older.[Footnote 34] Sections 501 and 505 of the Rehabilitation Act
of 1973, as amended, prohibit discrimination against qualified
individuals with disabilities who work or apply to work in the federal
government.[Footnote 35] Federal agencies are required to provide
reasonable accommodation to qualified employees or applicants for
employment with disabilities, except when such accommodation would
cause an undue hardship. In addition, a person who files a complaint or
participates in an investigation of an equal employment opportunity
(EEO) complaint or who opposes an employment practice made illegal
under any of the antidiscrimination statutes is protected from
retaliation. The Equal Employment Opportunity Commission (EEOC) is
responsible for enforcing all of these laws.
Federal employees or applicants for employment who believe that they
have been discriminated against by a federal agency may file a
complaint with that agency.[Footnote 36] The EEOC has established
regulations providing for the processing of federal sector employment
discrimination complaints.[Footnote 37] This complaint process consists
of two stages, informal, or precomplaint counseling, and formal. Before
filing a complaint, the employee must consult an EEO counselor at the
agency in order to try to informally resolve the matter. The employee
must contact an EEO counselor within 45 days of the matter alleged to
be discriminatory or, in the case of a personnel action, within 45 days
of the effective date of the action. Counselors are to advise
individuals that, when the agency agrees to offer alternative dispute
resolution (ADR) in the particular case,[Footnote 38] they may choose
to participate in either counseling or in ADR.
Counseling is to be completed within 30 days from the date the employee
contacted the EEO office for counseling unless the employee and agency
agree to an extension of up to an additional 60 days. If ADR is chosen,
the parties have 90 days in which to attempt resolution. If the matter
is not resolved within these time frames, the counselor is required to
inform the employee in writing of his or her right to file a formal
discrimination complaint with the agency. The written notice must
inform the employee of the (1) right to file a discrimination complaint
within 15 days of receipt of the notice, (2) appropriate agency
official with whom to file a complaint, and (3) duty to ensure that the
agency is informed immediately if the complainant retains counsel or a
representative.
After a complainant files a formal discrimination complaint, the agency
must decide whether to accept or dismiss the complaint and notify the
complainant. If the agency dismisses the complaint, the complainant has
30 days to appeal the dismissal to EEOC.[Footnote 39] If the agency
accepts the complaint, it has 180 days to investigate the accepted
complaint and provide the complainant with a copy of the investigative
file.[Footnote 40] Within 30 days of receipt of the copy of the
investigative file, the complainant must choose between requesting (1)
a hearing and decision from an EEOC administrative judge (AJ)[Footnote
41] or (2) a final decision from the agency. When a hearing is not
requested, the agency must issue a final decision within 60 days. A
complainant may appeal an agency's final decision to EEOC within 30
days of receiving the final decision.
In cases where a hearing is requested, the AJ has 180 days to issue a
decision and send the decision to the complainant and the
agency.[Footnote 42] If the AJ issues a finding of discrimination, he
or she is to order appropriate relief. After the AJ decision is issued,
the agency has 40 days to issue a final order notifying the complainant
whether or not the agency will fully implement the decision of the AJ,
and the employee has 30 days to file an appeal with EEOC of the
agency's final order.[Footnote 43] If the agency issues an order
notifying the complainant that the agency will not fully implement the
decision of the AJ, the agency also must file an appeal with EEOC at
the same time. Parties have 30 days in which to request reconsideration
of an EEOC decision. Figure I illustrates the EEO complaint process.
Figure 1: The EEO Administrative Complaint Process with Related Time
Frames:
[See PDF for image]
[A] Where the agency agrees to offer ADR in the particular case,
employees may choose between participation in ADR and counseling
activities. ADR generally refers to any procedure agreed to by the
parties in a dispute that is used to resolve issues in controversy
including, but not limited to, mediation.
[B] Where ADR is chosen, the parties have up to 90 days in which to
attempt resolution.
[End of figure]
If a complaint is one that can be appealed to the Merit Systems
Protection Board (MSPB) such as a removal, reduction in grade or pay,
or suspension for more than 14 days,[Footnote 44] the complaint is a
"mixed-case complaint." EEOC regulations provide that an individual may
raise claims of discrimination in a mixed case, either as a mixed-case
EEO complaint with the agency or a direct appeal to MSPB, but not
both.[Footnote 45]
A complainant may file a civil action in federal district court at
various points during and after the administrative process.[Footnote
46] The filing of a civil action will terminate the administrative
processing of the complaint. A complainant may file a civil action
within 90 days of receiving the agency's final decision or order, or
EEOC's final decision. A complainant may also file a civil action after
180 days from filing a complaint with his or her agency, or filing an
appeal with EEOC, if no final action or decision has been made.
[End of section]
Appendix II: Comments from the Department of Defense:
Office Of The Under Secretary Of Defense:
4000 Defense Pentagon:
Washington, D.C. 20301-4000:
Personnel And Readiness:
Mr. George H. Stalcup:
Director, Strategic Issues:
U.S. Government Accountability Office:
441 G Street, N. W.
Washington, DC 20548:
Dear Mr. Stalcup:
This is the Department of Defense response to the GAD draft report,
"EQUAL EMPLOYMENT OPPORTUNITY: DoD's EEO Pilot Program Under Way, but
Improvements Needed to DoD's Evaluation Plan," dated March 28, 2006.
(GAO Code 4504671/GAO-06-538). We have reviewed the draft report and
generally concur with its recommendations. Specific responses to the
report's recommendations are attached.
In several places, the report expresses concern that the general design
of the DOD pilot programs seem to operate within the existing
parameters of law and regulation rather than creating a totally new
process. This parallelism was necessitated by a memorandum to the
Secretary of Defense issued by the President when he signed the
authorizing legislation. In that memorandum, the President directed
that participation in the pilot programs should be strictly voluntary
and that pilot design should provide that complaining parties could opt
out of the pilot program at any time. In order not to penalize
complaining parties who opt out of the pilot program by making them
start the traditional complaint process at the very beginning with pre-
complaint counseling, the DOD pilots were designed to parallel the
traditional complaint process so that individuals who do opt out could
be inserted into the appropriate phase of the traditional process.
Thank you for the opportunity to review and comment upon the draft
report.
Sincerely,
Signed by:
Gail H. McGinn:
Performing the Duties of the Principal Deputy:
GAO DRAFT REPORT - DATED MARCH 28, 2406 GAO CODE 450467/GAO-06-538:
"EQUAL EMPLOYMENT OPPORTUNITY: DoD's EEO Pilot Program Under Way, but
Improvements Needed to DoD's Evaluation Plan"
Department Of Defense Comments To The Recommendations:
RECOMMENDATION 1: The GAO recommended that the Secretary of Defense
direct the Deputy Undersecretary of Defense for Civilian Personnel
Policy, Deputy Undersecretary for Equal Opportunity, and the Civilian
Personnel Management Service to establish regular intra-agency
exchanges of information on outreach strategies; training, and
electronic data collection from which the pilot programs could achieve
potential benefits that would not be available if working separately.
(p. 19-20/GAO Draft Report):
DOD RESPONSE: The DOD concurs with this recommendation. Quarterly
meetings will be held with DOD pilot program managers to discuss and
exchange relevant information regarding pilot implementation processes.
RECOMMENDATION 2: The GAO recommended that the Secretary of Defense
direct the Deputy Undersecretary of Defense for Civilian Personnel
Policy, Deputy Undersecretary for Equal Opportunity, and the Civilian
Personnel Management Service to develop a sound evaluation plan to
accurately and reliably assess the pilot programs' results, including
such key features as:
* Well-defined, clear, and measurable objectives;
* Measures that are directly linked to the program objectives;
* Criteria for determining pilot program success;
* a way to isolate the effects of the pilot programs;
* a data analysis plan for the evaluation design; and:
* a detailed plan to ensure that data collection, entry, and storage
are reliable and error-free. (p. 19-20/GAO Draft Report):
DOD RESPONSE: The DOD partially concurs with the recommendation. The
DOD will consider and incorporate these recommendations into our
evaluation plan as appropriate. However, it should be noted that the
principal purpose of the DOD document was to assist pilot evaluators in
their work by specifying those procedures or tools that would be unique
to the pilots. When pilot and traditional procedures were common, there
did not appear to be a need to include them. For example, the EEOC uses
time consumed in each of the various phases of processing
discrimination complaints as the principal measure to assess federal
agency effectiveness. From the very beginning, therefore, DOD pilot
planners agreed that a principal objective of the pilots would be to
significantly reduce the processing time between the filing of a formal
written complaint and the issuance of a final agency decision. Since
everyone involved with the pilots accepted and agreed with that
objective, it did not seem necessary to state it in the monitoring
document. Also, since the pilot programs would rely upon the same staff
and procedures to record and enter statistical data necessary for both
the traditional complaint process and the pilot process, there did not
appear to be a need to outline the methodology in the monitoring
document.
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
George H. Stalcup, (202) 512-9490 or stalcupg@gao.gov:
Staff Acknowledgements:
In addition to the individual named above, Belva M. Martin, Assistant
Director; Karin K. Fangman; Cindy Gilbert; Emily Hampton-Manley;
Anthony Patterson; Rebecca Shea; Linda Sidwell (detailee); and Kiki
Theodoropoulos made key contributions to this report.
(450467):
FOOTNOTES
[1] Federal employees are protected by various federal laws that
prohibit employment discrimination because of race, color, religion,
sex, national origin, age, or handicap. In addition, federal employees
are protected from retaliation for filing a complaint, participating in
an investigation of a complaint, or opposing any practice made unlawful
under these antidiscrimination laws. (See app. I.)
[2] ADR techniques include but are not limited to, conciliation,
facilitation, mediation, or arbitration. ADR techniques usually involve
intervention or facilitation by a neutral third party.
[3] Federal Sector Investigations - Time and Cost (EEOC, Office of
Federal Operations). An agency has 180 days to investigate a formal
complaint and provide the complainant with a copy of the investigative
file, which can be extended by 90 days when both parties agree. 29
C.F.R. 1614.108(e).
[4] Section 1111 of P.L. 106-398 (Oct. 30, 2000).
[5] 29 C.F.R. Part 1614.
[6] GAO, Federal Employee Redress: An Opportunity for Reform, GAO/T-
GGD-96-42 (Washington, D.C.: Nov. 29, 1995); Equal Employment
Opportunity: Rising Trends in EEO Complaint Caseloads in the Federal
Sector, GAO/GGD-98-157BR (Washington, D.C.: Jul. 24, 1998); Equal
Employment Opportunity: Complaint Caseloads Rising, With Effects of New
Regulations on Future Trends Unclear, GAO/GGD-99-128, (Washington,
D.C.: Aug. 16, 1999); and Equal Employment Opportunity: Discrimination
Complaint Caseloads and Underlying Causes Require EEOC's Sustained
Attention, GAO/T-GGD-00-104 (Washington, D.C.: Mar. 29, 2000).
[7] See, for example, 29 C.F.R. Part 1614.
[8] An agency may dismiss an individual's complaint for a number of
reasons, including failure to contact an EEO counselor in a timely
manner, failure to file a complaint in a timely manner, or failure to
state a claim based on covered discrimination.
[9] This period can be extended an additional 90 days when both parties
agree.
[10] A complainant may request a hearing at any time after 180 days
have elapsed from the filing of the complaint, regardless of whether
the agency has completed its investigation.
[11] If the agency does not issue a final order within 40 days, the
decision of the AJ becomes the final action of the agency.
[12] According to DLA, 1,545 employees are eligible to participate in
PECP.
[13] Other types of cases that would be inappropriate for PECP include
those that (1) involve potentially precedent setting issues; (2)
significantly affect other employees who are not part of the ADR
proceedings; (3) involve prohibited personnel practices or sensitive
issues regarding the health, safety, and security of DLA employees; (4)
concern disputed law, not fact; and (5) involve unsuccessful prior ADR
attempts or breaches of the confidentiality of a previous ADR session.
[14] Mediation is a process in which a trained neutral third party
helps disputants negotiate a mutually agreeable settlement. A mediator
has no authority, does not render a decision, but may suggest some
substantive options to encourage the parties to expand the range of
possible resolutions under consideration. Any decision must be reached
by the parties themselves.
[15] According to DLA, if an internal mediator is used, DLA works to
ensure his/her neutrality by never having that person serve as a
mediator in the same case in which he/she was an Intake Specialist.
[16] According to DeCA, it has 2,083 employees who are eligible to
participate in ERO in three zones: DeCA West, Zone 16: Camp Pendleton,
El Centro, Imperial Beach, North Island, San Diego, San Onofre, Miramar
Marine Corps Air Station (MCAS), and 29 Palms (stores in Southern
California) and Yuma MCAS and Yuma Proving Ground (both located in
Western Arizona); DeCA East, Virginia Beach, Zone 28: Fort Eustis,
Langley Air Force Base (AFB), Little Creek Naval Air Base, Oceana Naval
Air Station, Portsmouth Naval Station, Norfolk Naval Base, and Fort Lee
(stores located in Central Virginia); and DeCA East, San Antonio, Zone
6: Fort Hood I and II, Fort Sam Houston, Lackland AFB, Randolph AFB,
and Dyess AFB (stores located in Central Texas).
[17] Facilitation, a form of ADR, involves the use of techniques to
improve the sharing of information in a meeting between parties to a
dispute, focusing on the process involved in resolving a matter.
[18] According to DeCA, a definitive or authoritative resolution of the
matter is required for precedential value. An ADR proceeding is not
likely to be accepted, generally, as an authoritative precedent.
[19] When a person is employed by an agency subject to 5 U.S.C. 7121
and is covered by a collective bargaining agreement that permits claims
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a claim of alleged
employment discrimination may raise the claim under either Part 1614 or
the negotiated grievance procedure, but not both.
[20] Formal complaints under the current EEO process are not expedited
in this way.
[21] These test bases are as follows: Altus, Bolling, Brooks,
Charleston, Columbus, Dobbins, Dover, Edwards, Eglin, Elmendorf,
Hanscom, Hill, Holloman, Homestead, Keesler, Kirtland, Lackland,
Langley, Laughlin, Los Angeles, March, McGuire, Nellis, Peterson,
Ramstein, Scott, Seymour Johnson, Tinker, Travis, Robins, and Wright-
Patterson.
[22] A complaint is a mixed-case complaint if it is a matter that can
be appealed to the Merit Systems Protection Board such as removal,
reduction in grade or pay, or suspension for more than 14 days.
[23] According to USAF officials, 128,074 employees are eligible to
participate in CORE.
[24] USAF asks all aggrieved parties to choose between ADR and informal
counseling in the informal stage. In addition, during the initial
counseling session of the informal stage, the individual is briefed on
the CORE process and told that if he or she decides to file a formal
complaint, a decision must be made whether to use CORE or follow the
current federal EEO process.
[25] Under the current EEO complaint process, fact-finding conferences
may be used by agencies in developing an appropriate factual record.
The fact-finders, under this process, are not responsible for providing
a recommended decision.
[26] The Director of Air Force Review Boards Agency is a position with
delegated authority from the Secretary of the Air Force to make
decisions under 29 C.F.R. 1614.110 on individual EEO complaints.
[27] EEO-Net is designed to automate data entry, case tracking, and
reporting requirements.
[28] Collaboration among federal agencies can take many forms,
including establishing mutually reinforcing or joint strategies to
achieve an outcome; identifying and addressing needs by leveraging
resources; and developing mechanisms to monitor, evaluate, and report
the results of collaborative efforts. See GAO, Results-Oriented
Government: Practices That Can Help Enhance and Sustain Collaboration
Among Federal Agencies, GAO-06-15 (Washington, D.C.: Oct. 21, 2005).
[29] For fiscal year 2004, 222 employees contacted their particular EEO
offices DeCA-wide.
[30] Agencies are to use EEOC Form 462 to report the discrimination
complaint processing statistics for individual complaints of
discrimination, including such information as total number of
individuals counseled during a reporting period, number counseled where
counseling was completed within 30 days, and the number of formal
complaints filed.
[31] P.H. Rossi, M.W. Lipsey, and H.E. Freeman, Evaluation: A
Systematic Approach (Thousand Oaks, Calif.: 2004); GAO, Designing
Evaluations, GAO/PEMD-10.1.4 (Washington, D.C.: May 1991); GAO,
Assessing Social Program Impact Evaluations: A Checklist Approach,
(Washington, D.C.: October 1978); B.R. Worthen, J.R. Sanders, & J.L.
Fitzpatrick, Program Evaluation: Alternative Approaches and Practical
Guidelines (New York: 1997); L. Scharf, "Evaluating ADR Programs", in
Federal ADR Program Manager's Resource Manual.
[32] 42 U.S.C. secs. 2000e et seq.
[33] 29 U.S.C. sec. 206(d).
[34] 29 U.S.C. secs. 621 et seq.
[35] 29 U.S.C. secs. 791 and 794a.
[36] For allegations of discrimination under Title VII and the
Rehabilitation Act, filing an administrative complaint is a
prerequisite to filing a civil action in court. See 42 U.S.C. sec.
2000e-16(c) and 29 U.S.C. sec. 794a(a)(1).
[37] 29 C.F.R. Part 1614. EEOC has supplemented these regulations with
additional guidance relating to the processing of complaints with
Management Directive-110 (MD-110).
[38] ADR generally refers to any procedure agreed to by the parties in
a dispute that is used to resolve issues in controversy including, but
not limited to, conciliation, facilitation, or mediation. As of January
1, 2000, all federal agencies covered by 29 C.F.R. Part 1614 were
required to establish or make available an ADR program during the
informal (precomplaint counseling) and formal complaint stages of the
EEO process.
[39] An agency may dismiss an individual's complaint for a number of
reasons, including failure to contact an EEO counselor in a timely
manner, failure to file a complaint in a timely manner, or failure to
state a claim based on covered discrimination.
[40] This period can be extended an additional 90 days when both
parties agree.
[41] A complainant may request a hearing at any time after 180 days
have elapsed from the filing of the complaint, regardless of whether
the agency has completed its investigation.
[42] The AJ can extend this time for issuing a decision by making a
written determination that good cause exists to do so.
[43] If the agency does not issue a final order within 40 days, the
decision of the AJ becomes the final action of the agency.
[44] MPSB is an independent quasijudicial agency in the executive
branch that adjudicates employee appeals of personnel actions and
conducts studies of the federal merit system.
[45] For employees of agencies subject to 5 U.S.C. sec. 7121(d) and
covered by a collective bargaining agreement that permits claims of
discrimination to be raised in a negotiated grievance procedure, the
employees similarly must elect to file an EEO complaint or grievance.
[46] There are different time requirements for filing a civil action in
district court alleging discrimination under the Equal Pay Act and for
filing civil actions relating to mixed-case complaints. See 29 C.F.R.
sec. 1614.408 and sec. 1614.310.
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