Tuesday, July 22, 2014

KCNF comments to the EEOC on MD-110

EEO complaints filed by federal employees are governed by the EEOC’s regulations found at 29 C.F.R. Part 1614. The EEOC has also issued instructions for federal agencies to use in processing complaints. These instructions are contained in EEOC Management Directive 110 (MD-110). While the EEOC has not significantly revised MD-110 in more than 15 years, it has recently issued a new version to agencies and the public for comment. Kalijarvi, Chuzi, Newman & Fitch, P.C. was among the first law firms in Washington, D.C. to represent federal employees with discrimination complaints, and we have continued to serve that function for almost 40 years. Because of our experience, we provided comments to the EEOC, and we are presenting here the issues we believe are the most significant.

Chapter 3: ADR and Settlements
The draft revision to MD-110 recognizes the importance of enforcing settlement agreements. Unfortunately, EEOC has limited the remedies available to complainants when an agency breaches an agreement. The Commission currently holds that a complainant may seek specific enforcement of a settlement agreement, or reinstatement of the original discrimination complaint, but not both. The Commission does not impose on agencies any liability for damages resulting when they breach an agreement. The cause of Civil Rights will benefit from changing this policy to permit complainants to recover all damages resulting from a breach, including additional compensatory damages.

We believe that if agencies include in settlement agreements “non-disclosure” provisions, which limit the complainants’ ability to discuss the facts and claims that are being settled, the EEOC should require agencies to include in those agreements certain statements set forth in the Whistleblower Protection Enhancement Act (WPEA). As codified at 5 U.S.C. § 2302(b)(13), the WPEA requires that every non-disclosure agreement state that:

These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.

Agencies cannot pressure or discourage employees from making disclosures that are protected by law. The public has a right to know about settlements that touch on the public interest. In settling federal court matters with federal agencies, the Department of Justice has adopted a regulation setting out a general policy against confidentiality clauses. 28 C.F.R. § 50.23. The policy reflects the government's obligation to account to its taxpayers for how their funds are spent. The regulation permits some exceptions, such as in matters involving national security, and in protecting personal information protected by the Privacy Act. However, this policy will not apply in administrative matters involving other federal agencies.

Finally, the revised draft makes the important point that agency representatives must have the authority and responsibility to negotiate in good faith. Agency decisions to designate a representative who does not have adequate authority creates a significant impediment to successful ADR practice. The Commission needs to adopt and enforce this revision.

Chapter 4: Mixed Cases

Chapter 4 governs the processing of mixed cases. While this is a complex topic, the new MD-110 adds to the complexity and makes the subject matter difficult to understand, even for seasoned practitioners.

Section II.B.1 and 2 – Section II.B.1 governs Standing, i.e., who is permitted to file an appeal, while II.B.2 governs the actions that may be appealed. Paragraph 1 notes that probationers “generally” do not have the right to appeal, but also notes there are exceptions. Paragraph 1 is flawed to the extent it does not reference probationers who have a statutory right to appeal to the Board if they claim reprisal for whistleblowing. A probationer is entitled to file an EEO complaint alleging discrimination, and a probationer who has filed a complaint with the Special Counsel alleging whistleblowing reprisal is entitled to file an appeal to the MSPB if the matter has not been resolved by the Special Counsel. 5 U.S.C. § 1221. OFO has previously held that an appeal to the Board from the Special Counsel which includes an allegation of discrimination is not a mixed case. Because an appeal to the MSPB from the Special Counsel which includes an allegation of discrimination satisfies the criteria of 5 U.S.C. § 7702 (“any employee or applicant for employment who has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and alleges that a basis for the action was discrimination”), MD-110 should address whether employees claiming whistleblowing reprisal and discrimination can pursue a mixed case, or whether they are obligated to file two separate actions.

Chapter 6: Formal Investigations

Section XII invites an Administrative Judge to “exercise his/her discretion to issue sanctions.” When an AJ chooses to not enter sanctions, and fails to give any reason for not entering sanctions, the value of the whole investigative program breaks down. An agency can do no investigation at all and get away with it if the case is assigned to a judge who will not impose sanctions. We believe that the Commission should require an Administrative Judge to impose sanctions unless the Administrative Judge has made specific findings explaining why the sanctions would be unjust and not further the remedial purposes of Title VII.

Chapter 7: The Hearing

We believe that the summary judgment process as used by agencies during the EEOC hearing process imposes additional delays on complainants. Section 7.III.E (Summary Judgment), Paragraph 7.III.E.2 (summary judgment on Administrative Judge’s determination) of the proposed revisions to MD-110 provides as follows:
If the Administrative Judge determines that some or all of the material facts are not in genuine dispute, s/he may, after giving notice to the parties and providing them an opportunity to respond within 15 days of receipt of the notice, issue an order limiting the scope of the hearing or issue a summary judgment decision without conducting a hearing.

This paragraph should require the Administrative Judge to specify in the Notice why he or she believes that the complaint may be ripe for summary judgment, and which issues may not require a hearing. This will allow the parties to focus their efforts on those issues, which will lead to greater efficiency in the briefing.

In addition, Section 7.III.E imposes no burden on the party moving for summary judgment to a) identify the material facts it believes are not in dispute; or b) articulate why, in light of the undisputed facts, it is entitled to judgment as a matter of law (see F.R.Civ.P. 56(c)). Section 7.III.E.4 provides that

For example, when a complainant is unable to set forth facts necessary to establish one essential element of a prima facie case, a dispute over facts necessary to prove another element of the case would not be material to the outcome.

 and also

Moreover, a mere recitation that there is a factual dispute is insufficient. The party opposing summary judgment must identify the disputed facts in the record with specific ity or demonstrate that there is a dispute by producing affidavits or records that tend to disprove the facts asserted by the moving party. In addition, the non-moving party must explain how the facts in dispute are material under the legal principles applicable to the case.

It is fundamental that, before the non-moving party bears any burden regarding the availability of summary judgment, the moving party must demonstrate why it is entitled to judgment. More bluntly, before “the party opposing summary judgment must identify the disputed facts” the moving party must first identify the supposedly undisputed facts. As Section 7.III.E currently reads, the Commission has not imposed any burden on the moving party.

Summary

We believe that adoption of the above proposals would significantly enhance the EEO complaint process for federal employees, and make it more fair and equitable for both parties. EEOC received 51 comments about its proposed revisions to MD-110, and we can expect that it will take some time for the Commission’s staff to review them.

However, adopting our recommendations for the MD-110 will not be enough. Congress also needs to adequately fund EEOC’s federal sector program. Waiting 8 or 12 months, or longer, for assignment to an administrative judge is too long. Through the NO-FEAR Act, Congress found that federal managers do not have enough accountability for engaging in unlawful discrimination and retaliation. The long delays in the EEO process further diminish that accountability. Congress must increase funding to the EEOC’s federal sector program so that cases will be decided more quickly.

KCNF’s comments to the EEOC are available here:

By George Chuzi and Richard Renner

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