By Deryn Sumner, February 15, 2017
For years, those of us here at FELTG have not been shy about identifying the ways in which the EEOC can improve its federal sector case processing. Cases can languish for years before getting assigned to administrative judges. And even after one gets assigned, it can take a few more years to get a ruling on a pending motion for summary judgment, scheduled for a hearing, or receive a decision issued after a hearing. Sometimes, administrative judges issue decisions relying on incorrect application of the law, or award remedies not allowed by the law, such as punitive damages or compensatory damages in age discrimination cases. Appeals to the EEOC’s Office of Federal Operations can sit for years and inquiries about when a party can expect to receive a decision all receive the same boilerplate letter in response that essentially says, “we have a lot of appeals to deal with and your case is one of them, but we can provide no timeframe by which you can expect to receive a decision.” I am not exaggerating when I share that a case I worked on as a law clerk while in law school is still pending a decision on an appeal of remedies before the Office of Federal Operations. Further, I am personally aware of decisions issued by the Office of Federal Operations that contained clear misstatements of the factual record.
So given all that, it was heartening to see the EEOC acknowledge that federal sector case processing can improve. On January 17, 2017, the EEOC announced the publication of Federal Sector Quality Practices. In the Commission’s own words, the purpose is “to address the quality of the agency’s hearings and appeals in federal employee employment discrimination complaints.” Given this, I was pretty excited to read the plan. I allowed myself to dream that this publication would talk about increased refresher training for administrative judges to keep them up-to-date in developments in the law. Perhaps the EEOC would be rolling out an e-file system like the one the MSPB has used for years? Maybe the Office of Federal Operations would, as Ernie Hadley has preached for years, start issuing summary decisions on clear-cut cases to speed up the process? But much like a Falcons fan on the night of the Super Bowl, my dreams were dashed.
The EEOC’s Federal Sector Quality Practices for Effective Hearings, Appeals and Oversight does lay out quality practices for the hearing stage, appeals, and oversight of federal agencies in EEO programs, but there’s nothing groundbreaking in the actual practices laid out. You can find the Quality Practices here: https://www.eeoc.gov/federal/quality-practices.cfm
- Administrative judges should oversee discovery and grant summary judgment when appropriate.
- Administrative judges should also schedule hearings, make “accurate” rulings on evidentiary issues during the hearing, and issue a decision afterwards.
- Appeals should be acknowledged, Commission staff should follow up on obtaining the record if the agency doesn’t provide it, and decisions on appeal should be accurate and supported by the record.
Sigh. Yes, these are all good things, but this doesn’t represent much of anything in terms of new developments. The most notable thing I found in my review was the codification of the requirement to hold initial status conferences that many administrative judges have been holding for years under the EEOC’s Pilot Program. I do appreciate the efforts by the EEOC to focus on improvements in federal sector case processing; I just wish it went a little farther to set goalposts for change. Sumner@FELTG.com