AJ Kathleen Mulligan's Oral Testimony at EEOC Strategic Enforcement Plan Meeting

Testimony delivered in the afternoon session on July 18, 2012.  Bold and parenthesis added.  

MS. MULLIGAN: May I speak since I am the sole voice of the federal hearings program? First of all I, this is sort of following up on this earlier session. The quality in the investigations in the federal sector is poor to dreadful. Every once in a while, somebody issues a report, I don't know if it's somebody in Headquarters, I don't know if it's a contractor, which says that the investigations meet some criteria at a very high rate and all the judges shake their heads and scratch their hands and say how could this possibly be? Why is it that out of the 2000 case files I've looked at, two were adequate?

I'll give you an example, one example, they put documents in the file with no foundation. There is no declaration from anybody saying where they came from, that it's a complete production that they looked for them. It's just ten random pages stuck in there. And that is assumed to be responsive to a request for production of documents during the investigation.  It's because the agencies are economizing so much that they are paying so little that the investigators are not properly trained and can't do a good job.

The second thing is, that that makes discovery [during the EEOC hearing process] incredibly important. And the Commission needs to address this on a systemic basis, on a nationwide basis. There are too many agencies abusing discovery, especially with unrepresented parties, especially in disability cases where they are engaging in over broad discovery, asking for way too much medical information, asking for tax returns, asking for discovery they are not entitled to.

These complainants who are unrepresented because private attorneys general do not exist in the federal sector. Why? Because federal agencies don't settle. They don't face the same economic consequences when they are liable, either in terms of bad publicity because everything we do is not published. Or in terms of any consequences financially because it comes out of a fund. The manager doesn't suffer. So the discovery process is just full of abuse especially with unrepresented parties. And it's not an availability of private counsel except perhaps in the D.C., Baltimore area where you have higher level people who can afford to pay.

But if the Commission would take a comprehensive approach to the discovery process, and I'll throw out an egregious example so that you can see how this would simplify case processing. If agencies could not assert a Privacy Act privilege in discovery responses, without doing what they're supposed to do to assert a privilege, have a log, have a declaration, have descriptive evidence which they have to give in their responses to discovery, then that would cut down on abuse quite a bit.

Because right now complainants are not getting discovery responses. The agency says we claim Privacy Act, period, that's it. And they don't know, they don't, they can't figure out, the complainants, how to get around that. They assume because a federal agency lawyer is telling them they're not entitled to something, they have no remedy to get it unless they've been through the process before and then they'll know. But there are ways to streamline discovery process which would make routine discovery disputes which consume a lot of time as every litigator knows, which would be very helpful.

The other thing would be if there would be more definitive requirements for specific parts of the investigative files, that would be very helpful. The rest of it depends on, I think if you had judicial managers talking to judges to see how to improve the process we could find a lot more of them than the current system.

- from http://www.eeoc.gov/eeoc/meetings/7-18-12/transcript.cfm#hirsch

AJ Kathleen Mulligan's Written Testimony at EEOC's Strategic Enforcement Plan Meeting in 2012

The following was taken from http://www.eeoc.gov/eeoc/meetings/7-18-12/mulligan.cfm.  Some emphasis in bold were added, some others not.

Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan Written Testimony of Kathleen Mulligan, Administrative Judges Association (http://www.eeoc.gov/eeoc/meetings/7-18-12/index.cfm)

Thank you for taking the time to respond to our letter of June 11, 2012, which addressed what had been described to us as a proposed realignment of the federal hearings program within the EEOC organization. We have conveyed your feedback to our members.

Enforcement of civil rights laws for federal employees is now a matter before the whole Commission as it considers the Strategic Enforcement Plan [SEP]. We understand that development of the SEP requires the Commission to look holistically at the various elements of our organization. However, our main point in our last letter is also relevant to the SEP: this SEP must not continue the historical neglect of the rights of federal employees embodied in all the prior SEPs. In our comments filed on February 1, 2012, which we are attaching to this memo, we pointed out that the proposals specific to the federal sector in the currently proposed plan continue that pattern.

1- Due Process

For over two years, we have gone back to the language of the statutes and made the case to the Commission about the best way for you to carry out your obligations under those statutes, that is, adoption of a due process model for hearings on federal employees' civil rights claims. The current proposed SEP ignores what we have pointed out. The current Proposed SEP does nothing to provide due process in federal hearings.

The adoption of the Administrative Procedures Act [APA] for federal civil rights hearings is not merely a personnel matter. It provides the foundation for due process for federal employees which the current program lacks(1). It would allow AJs to issue subpoenas for information necessary for an adequate record. In contrast, the proposed SEP would continue to ignore the statutory authority for the Chair to appoint administrative law judges [ALJs] and continue a defective program which was never contemplated by Congress.

The APA has been called the constitution for administrative litigation. It is the foundation for the parties' right to due process [i. e., decisions based on facts and law by competent, independent decision-makers]. The Commission has rejected the "Constitution" applied by other federal agencies in other employment cases, and has not even been willing to consider applying the APA to federal hearings. The whole issue seems to be off the table, we believe because of economic assumptions which have never been objectively examined.

Prior SEPs depended on and perpetuated the myth, as the Dallas District Director's email said last year, that there are no real civil rights issues in the federal government, that we are already the model employer. This myth is useful to those arguing for scarce resources for private sector enforcement. This myth supports the incredibly strong bias of the Commission against funding real enforcement in the federal sector. [And explains why when we were confronted time after time with this bias inside the Commission, we turned for support to civil rights experts outside the Commission, who quickly and easily grasped the necessity of serious reform.](2) This myth must be firmly rejected in the next SEP, by providing real teeth to federal enforcement through administrative litigation.

To provide substantive statutory protection for federal employees, at a minimum, the Commission must provide the due process promised by the APA. We believe we have made it clear that the APA is the foundation of due process, not a personnel rule, and we do not understand why the Commission will not provide a due process hearing model for federal employees.

2- Declining case processing numbers

Putting aside the issue of due process, as the Commission has, the SEP focuses on alleged improvements to the efficiency of the hearings process, through new technology and case management programs. The SEP identifies the proposed technology and case management programs, and the locations of the pilot programs which tested the assumptions of improved efficiency, but, notably, it fails to state that the pilot programs in fact did improve efficiency. We urge you to consider our comments on these alleged improvements.(3)

The numbers showing declining "efficiency" are stark. For the past five fiscal years, the rate at which federal sector cases have been resolved within 180 days steadily worsened:

                     FY 2007        FY 2008        FY 2009        FY 2010        FY 2011
Target           50.0%            50.0%           50.0%           52.0%            53.0%
Result           42.8%            38.6%           40.6%           37.4%            34.3%

The Commission admitted in its PARS Report a few years ago:

• Over time, the EEOC's efforts to achieve this goal have become more difficult because of increasing workloads and a greater emphasis on enhancing the quality of hearings. Additionally, the Commission's efforts to achieve this goal have been compounded by the departure of a number of AJs who accepted ALJ positions at other agencies, which prompted the reassignment of their complaints, creating larger caseloads and further delays in complaint processing.

Other than the admittedly high cost of attrition of experienced AJs, these asserted excuses lack of  support in reality. There has not been a greater emphasis on quality. The OFP liaisons have performed basically the same type of quality review each year, using the same criteria. AJs have not been advised that there has been an appreciable variation in quality.

Even the high cost of attrition was glossed over. Losing experienced AJs to other agencies did not merely cause a temporary glitch while cases were reassigned, it caused a long-term deficit of experience in handling complex cases, just as the Commission was expanding its jurisdiction to include claims under GINA and the ADAAA, and just as headquarters was advertising AJ vacancies for less experienced lawyers, at a GS-12 or even -11 level, with two or three years legal experience, without a thought to competence and the impact on efficiency. (4)

The Commission failed to admit far more significant reasons for higher case processing times, discussed in our attached Comments:

• Irrational staffing patterns - "At this time, our best estimates are that approximately 200/0 of all AJ time is spent on clerical or administrative tasks such as copying, mailing and IMS entry";
• Imposing technology which frustrates rather than supporting efficiency - -"For example, the current IMS system could do a number of tracking tasks, or be modified to do so, but given its lack of user friendliness it appears the voluntary use by Judges is minimal. In addition, if the goal is actually improving the processing time rather than merely improving management's ability to capture data, the focus must be on useful features for the Judges, which has not been the initial focus of IMS. If the IMS prototype is followed, the system is likely to be a spectacular failure."
• Ignoring the reality of systemic enforcement in the federal sector - - "This objective contains a number of suggestions for hortatory procedures to target discrimination within federal agencies through use of the 'compliance process.' However, currently the EEOC compliance process is totally advisory. Only an Order issued by an Administrative Judge in resolution of an actual complaint can require agencies to take corrective action. Nevertheless, this section focuses on the wholly toothless 'compliance process' and ignores the power of the federal sector class complaint to effectuate change and combat discrimination."
• Ignoring the responsibility of a sole AJ for huge class cases - - " In the private sector, the Commission has committed enormous resources in the past few years: new SES positions have been created, training funds have been committed, and new staff have been hired at professional grade levels commensurate with advanced degrees in psychology, statistics and other relevant fields. The Commission litigates "class cases" in federal court without technical compliance with Rule 23's requirement of numerosity ... so that "class cases" may include a class of two or more individuals. In contrast, the federal sector looks to Rule 23 as a model and [our AJs] have resolved ... class cases with tens of thousands of class members ... involving the failure to accommodate disabilities in the [Postal Service], the refusal to promote [employees with disabilities] at the Social Security Administration, as well as a number of class cases inside the Department of Agriculture ... As in the private sector, such class cases are an effective way to focus limited resources on large systemic patterns of discrimination. However, [AJs] are left to manage nationwide class cases without any support, administrative or legal. Unlike [Legal Unit cases] where typically several attorneys work the case, as well as generally a paralegal, and sometimes an additional contract paralegal or clerk to deal with claims, the [AJ] responsible for managing class cases is doing her own faxing and mailing of orders, and maintaining her own files, as well as research and writing complex decisions that determine whether class-wide relief for thousands of federal employees is appropriate."
• Ignoring the administrative costs of redefining federal sector districts - - Creating new district jurisdictions without considering federal sector caseloads is one reason for widely different caseloads for districts, causing enormous administrative transaction costs for Supervisory Administrative Judges to absorb, first, to convince OFP to allow a transfer, and then to actually transfer cases from overloaded districts to those with insufficient caseloads.(5)
• Failing to consider the duty to identify and remediate discrimination - - it is every AJ's duty to find and remedy discrimination as warranted by the evidence, but doing so inevitably requires more time writing the decision in view of the inevitable appeal by the agency found to have discriminated, and the additional tasks of determining remedies, fees, and costs.

The Commission has reflexively gone to the perennial cures for management problems: increased tracking technology and increased centralized headquarters control. It has done so without ever undertaking the most basic of management duties: obtaining reliable data. Why are some offices more efficient? Why are some AJs more productive? What has caused wide disparities when we all work within the limits of the same system?

The AJA believes that the reasons for such persistent "inefficiency" may be found in the management model used by the Commission: hiring the least experienced lawyers, failing to train them, making judges do clerical work for 200/0 of the day, using irrational management models and district definitions, ignoring our duty to identify and remediate discrimination, and ignoring the increasingly complex caseloads which defy management by numbers.

Administrative judges should be managed by judges. That is the model used under the APA, so the due process model we advocated above would also provide for greater efficiency, as it has for decades at the National Labor Relations Board, the Department of Labor, and most every other federal agency. The Commission has never even offered to work with AFGE and AJA to develop a pilot project to determine if using the AJA model would in fact increase productivity and quality while providing due process.

Conclusions

The SEP persists in ignoring the glaring problem of denial of due process.  The SEP defines the problem of "inefficiency" incorrectly, as a function of a supposed AJ failure to review each case upon assignment and determine the most efficient way to proceed to a fair resolution of the case. The SEP then proceeds on the basis of an erroneous definition to propose solutions which have been tested, yet are unproven: new technology and more centralized management.

The AJA has proposed a different solution which would provide due process, create a rational and streamlined organization chart, improve morale and decrease attrition, and improve efficiency. Within this context, we would welcome the opportunity to explore how more productive judges manage their caseloads, so that we could share insights as guidance to our members.

We look forward to discussing this model with you.

Cc: David Norken, Vice-President; Board Members Ricardo Cuevas, Debra Sharp, Charles Shubow, 
Lesley Troope, Nancy Weekse

Footnotes

1. Imagine if the OFCCP suddenly told federal contractors or stakeholder employees of those contractors that their ability to bid on federal contracts, or to raise claims of under representation of women, persons with disabilities, racial or ethnic groups, arising under E.O. 11246, would not be decided on the record, by a competent Department of Labor ALJ protected from political influence or control, but would instead be heard by a lawyer assigned to the case by an unnamed SES manager who is not a judge, who decides how much discovery is needed and whether a hearing is necessary, and requires the lawyer to run a draft decision by him/her before it can be sent to the parties; if there is a finding of a statutory violation, then the "draft" sits for months or years while it is reviewed off the record by the unidentified manager [who may or may not be a lawyer] under undisclosed criteria for undisclosed reasons. Further imagine that none of this process, except the process before the "judge", is disclosed to the parties or taken under authority of any rules adopted after public notice and hearing.
2.  In fact, even before we began advocating for reform, the National Employment Lawyers Association provided the same input to the Obama transition team: ,NEsA Halle ........ pl." .... "'JW7eN jU.o~I.I" ..PROPOSALS FOR FEDERAL SECTOR EMPLOYMENT REFORMOF mE EEO PROCESSDecember 19, 2008 Statutory Changes:1. Statutory change to permit the EEOC to issue and enforce subpoenas in its adjudicatory role. 2. Statutory change so EEOC and MSPB "judges" would have to be administrative law judges.
3. "Again, the AJA would like information about the case prioritization system, including who will be doing it and how. If this requires additional personnel, we believe a better use of resources would be to have additional administrative staff assigned to hearings units, given that most AJs are responsible for almost all of their own clerical work."
4. The AJA, AFGE and some supervisors objected to Headquarters that even under current Commission staffing, the announcements should identify the position as GS-13/-14.
5. There is no evidence that the backlogs are due to inefficiencies in busy districts. In fact some districts with backlogs have higher rates of findings of discrimination and higher productivity per AJ.