oversight

Personnel Appeals Board: 1996 Annual Report

Published by the Government Accountability Office on 1997-01-27.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                                                                                   January          27,         1997
                                              Personnel
                                              Appeals
                                              Board




                The Honorable        James.F.    Hinchman
                Acting    Comptroller       General
                United    States    General     Accounting                           Office
                Room 7000
                441 G Street,       N.W.
                Washington,      D.C.     20548


                Dear       Mr.       Hinchman:

                            Attached        please     find a copy of the 1996 Annual Report                         of the
                Personnel        Appeals         Board of the U.'S. General               Accounting       Office.       As
                you know,         it is the Board's             responsibility           to consider,       decide,      and
                order      corrective          or disciplinary           action,      when appropriate,           in cases
                involving         employee        appeals,      prohibited        personnel     practices,
                prohibited          political        activity,       and discrimination.              The Board also
                has responsibility                for eeo oversight            of GAO and its program               and
                practices.           The attached           report    describes        the activities         of the
                Board,       its Office         of General         Counsel,      and its Office         of Equal
                Employment          Opportunity         Oversight        during     the last     fiscal     year.




                attachment




U. S. General     Accounting     Ofticc   l     Suite 560   l   Union   Center   Plaza II     l   Washington,     D.C.   20.548   .   Phone (202) 512-6137
    able            of Contents                      ..,............................................                          . . . .. . . .. . .. . . .. . . .. . . .. . .. . . .. . . . .. . .. . . . .. . . .. . .. . .. . . .. . .. .. .. . . .. . .. . . .. . . 3   I’

    Biographies                       of Board                 Members                    . .. . . .. . .. . .. . .. . . . .. . . .. . . .. .. . . . .. . . .. . . .. .. . . . .. . . .. . . .. . . .. .. . .. . . .. .. . . .. . .. .. .. . . .. . .. . . .. . . .. 6   LI
                                                                                                                                                                                                                                                                          r
’   Personnel                    Appeals                Board             and PAB Office                                of General                        Counsel                    Staff             . .. . . .. .. . ..*......................                  9     ii

    Chapter                 I:                                                                                                                                                                                                                                           1:
                                                                                                                                                                                                                                                                         E
    The Personnel   Appeals Board .. . .. . . .. . .. . . .. . .. . . . .. . .. . . .. . .. . . .. . . .. . . .. . .. . . . .. . . .. . .. . . . .. . . .. . . .. . .. . .. . . .. . .. . . .. . .. . . .. . . 11
    l About the PAB . . .. . . .. . .. . . .. . . .. . .. . . .. . .. . . .. . .. . .. . .. . . .. . . .. . . .. . . .. . .. . . .. . . .. . . .. .. . . . . .. . .. . . .. . . .. . . . .. . . .. .. . . .. . .. . . .. . . .. .. ....... 11                            ,
    l Expanded Jurisdiction              . .. . . .. . . .. . .. . . .. .. . . . .. . .. . .. . . .. . . . .. . .. . .. . .. . . . . .. . .. . .. . . .. . . . .. . . .. . . .. . . .. . . .. . .. . . .. .. . . . .. .. . . .. . . .. . .. . . 14

    Chapter      2:
    The Appeal Process .......................................................................................................................                                                                                                                  15
    * Prehearing Discrimination             Complaint Procedures ......................................................................                                                                                                                         15
                                                                                                                                                                                                                                                                16       I
    l Initiating    an Appeal .......................................................................................................................
    l Board Decisions .............................................................................................................................                                                                                                             17
    l Class Action Appeals to the Board ................................................................................................                                                                                                                        17


    Chapter 3:
    PAB Office of General                    Counsel Activities                         ................................................................................                                                                                        23
    l Case Activity .........................................................                    . .......................................................................                                                                                      23
    l Comments on Proposed Agency Action .........................................................................................                                                                                                                              23
    . PAB/OGC Employee Contacts .......................................................................................................                                                                                                                         23
    l PAB/OGC Investigative                    Authority ................................................................................................                                                                                                       24
      * Stays ............................................................................................................................................                                                                                                      24
         l   Other Relief .................................................................................................................................                                                                                                     24


    Chapter 4:
    Administrative                            Actions                ................................................................................................................                                                                           27
    l    Regulatory                  Revisions                ......................................................................................................................                                                                            27


    Chapter   5:
    Oversight    Projects                               .........................................................................................................................                                                                               29
    l Report on Hearing       on Age Issues ..................................................................................................                                                                                                                  29
    l    Downsizing Study ..........................................................................................................................                                                                                                            29
    l    Promotion Study ............................................................................................................................                                                                                                           29
    l    Report on the Discrimination             Complaint Process and Mediation                                       Program ................................                                                                                                30
Figures

Figure    1.1:   Organization   of the Personnel Appeals Board .......................................................                      12
Figure    2.1:   Cases .Filed with PAB ... . ..........................................................................................     18
Figure    2.2:   Process of Case From Charge to Termination                            of Appeal.. ......................................   19
Figure    2.3:   Process of Case to Final Board Member’s Decision with No Appeal .....................                                      20
Figure    2.4:   Process of Case from Charge to Judicial Review ...................................................                         21
Figure    2.5:   Process of Reduction-in-Force Case ........................................................................                22
Figure    2.6:   Cases Filed with PAB/OGC .....................................................................................             25


Abbreviations

AoC              Architect      of the Capitol
AOCFEP           Architect      of the Capitol Fair Employment                    Practices      Office
CAA               Congressional Accountability     Act
CR0              Civil Rights Office, GAO
eeo              equal employment     opportunity
EEOC             Equal Employment      Opportunity     Commission
FLRA             Federal Labor Relations Authority
GAO              General Accounting Office
GAOPA            General Accounting Office Personnel Act
MSPB             Merit Systems Protection Board
PAB/OGC          Personnel Appeals Board Office of General Counsel
PAB              Personnel Appeals Board
RIF              reduction-in-force
Biographies      of Board   Members




                                      Nancy A. McBride was appointed to the Board in 1991., served as Vice-Chair in
                                      fiscal years 1993 and 1994, and as Chair in fiscal years 1995 and 1996. She is a
                                      graduate of Georgetown University     and the Marshall-Wythe   School of Law of
                                      the College of William and Mary. Ms. McBride was an Assistant City Attorney
                                      for the City of Alexandria, Virginia for six years. She has been in private
                                      practice since 1989, serving as an arbitrator and hearing officer primarily in
                                      labor and education matters. Ms. McBride is a frequent instructor at the
                                      George Meany Center for Labor Studies in Silver Spring, Maryland.        Her term
                                      on the Board expired at the end of fiscaJ year 1996 but was extended through
                                      the first four months of fiscal year 1997.



Nancy A. McBride




                                      Leroy D. Clark was appointed to the Board in 1992, served as Vice-Chair in
                                      fiscal years 1995 and 1996, and was elected Chair for fiscal year 1997. A
                                      graduate of the City College of New York and the Columbia University Law
                                      School, Professor Clark has been an attorney for the N.A.A.C.P. Legal Defense
                                      Fund, Inc., and served as General Counsel of the U.S. Equal Employment
                                      Opportunity   Commission.   He is also an arbitrator listed with the American
                                      Arbitration  Association and the Federal Mediation and Conciliation        Service.
                                      Currently a faculty member at the Catholic University Law School, Professor
                                      Clark is also the co-author of a textbook on employment     discrimination     law.



         .-.
Leroy D. Clark
                                                                                                                          i
Biographies   of Board Members




                                 Harriet Davidson was appointed to the Board in 1993 and will serve as Vice-
                                 Chair in fiscal year 1997. She is a graduate of the University      of Rochester,
                                 New York University, and Brooklyn Law School. Ms. Davidson was a public
                                 interest lawyer, specializing in employment      and administrative   law, for seven
                                 years, and served as a clinical instructor at the Seton Hall University      School of
                                 Law. She was also Director of the Housing Division of the Philadelphia
                                 Redevelopment      Authority   Since 1987, Ms. Davidson has been a hearing officer
                                 and administrative     judge for Federal, state, and county agencies, primarily    in
                                 employment,     real estate and banking matters. In 1993, she was appointed to
                                 the Montgomery      County Human .Relations Commission (Maryland).



Harriet Davidson




                                 Alan S. Rosenthal was appointed to the Board in 1991 and served as Chairman
                                 in fiscal years 1993 and 1994. A graduate of the University of Pennsylvania
                                 and the Yale Law School, he retired in 1988 after nearly 40 years in the Federal
                                 service. Following a clerkship with a judge on the U.S. Court of Appeals for the
                                 District of Columbia Circuit, Mr. Rosenthal served for 20 years in the Appellate
                                 Section of the Civil Division of the Department  of Justice (for 14 years as
                                 Assistant Section Chief). In 1972, he became Chairman and Chief
                                 Administrative   Judge of the Atomic Safety and Licensing Appeal Panel of the
                                 Atomic Energy Commission (later Nuclear Regulatory Commission).           Mr.
                                 Rosenthal has taught at the University of Pennsylvania     Law School and the
                                 Washington College of Law of the American University       Mr. Rosenthal’s term
                                 on the Board expired during fiscal year 1996.
Alan S. Rosenthal
                                                                                      ,
\      Personnel     Appeals     Board
       Nancy A. McBride                                        Chair
       Leroy D. Clark                                          Vice-Chair
       Alan S. Rosenthal                                       Member
       Harriet Davidson                                        Member

       Personnel     Appeals. Board       Staff      ,

       Executive Director                                      Beth L. Don
       Co-Directors, EEO Oversight                             M. Gail Gerebenics
                                                               Barbara Lipsky
    ‘,I, Solicitor to the Board                          :     Catherine McNamara*
         Staff Attorney                                        Susan I?. Inzeo
         Administrative   Operations Assistant                 Sarah L. Hollis
         & Acting Clerk of the Board

       Personnel     Appeals     Bobd/Office      of General      Counsel    Staff
      General Counsel                                          Jessie James, Jr.
      Senior Trial Attorney                                    Janice E. Willis
      Senior Trial Attorney                                    Janice M. Reece
      Administrative   Operations    Assistant                 Deborah Y. McKissick
      Secretary                                                Darian C. Jackson

       * No longer with the Board
Personnel   Appeals   Board   1999




                                     =5
                                     d
The Personnel             Appeals        Board                   expiration of a current member’s term. GAC
                                                                 advertises the vacancy and solicits applica-
About the PAB                                                    tions from candidates who have expertise in
                                                                 the areas of EEO, labor. law, arbitration,    me-
      The Personnel Appeals Board (PAB or the                    diation, and adjudication.     A screening pane13,
Board) was created by Congress in 1980 to                        chaired by the Special Assistant to the Comp-
 adjudicate disputes, issue decisions and order                  troller General, is established to review the
corrective or disciplinary     action,. when appro-              applications and interview the candidates it
priate, in cases involving prohibited personnel                  determines to be the best qualified. The
practices, prohibited political activity, and                    panel’s recommendations       are then forwarded
discrimination    involving employees of the U.S.                to the Comptroller    General who appoints each
General Accounting Office.’ The Board also                       Board member. The Board elects its own
was granted responsibility       for oversight of                Chair and Vice-Chair for one-year renewable
equal employment       opportunity     at GAO.                   terms.
      The PAB operates as an independent                               The Executive Director manages Board
agency in the legislative branch, combining                      staff and its operations; the Solicitor advises
the adjudicatory functions of its executive                      the Board members on legal matters; and the
branch counterparts:       the Merit Systems Pro-                Director of EEO Oversight conducts studies
tection Board (MSPB); the Federal Labor Rela-                    and produces reports on selected topics involv-
tions Authority (FLRA); and the Equal Em-                        ing equal employment       opportunity   at GAO.
ployment Opportunity        Commission (EEOC).                   The General Counsel, who is selected by the
The Board’s Office of General Counsel (PAB/                      Board and appointed by the Comptroller        Gen-
OGC) performs the investigatory          and                     eral, serve,s at the pleasure of the Board Chair.
prosecutorial functions of the Office of Special                 The General Counsel investigates charges
Counsel and the FLRA General Counsel.                            filed with his or her office and, if he or she
      By statute, the Board is comprised of five                 concludes that reasonable cause exists, offers
members who serve five-year, non-renewable                       to represent the employee or applicant for
terms.2 The process of selecting a Board                         employment     before the Board with the assis-
member begins several months prior to the                        tance of senior trial attorneys.




i The Board also has the authority to certify collective bargaining representatives and to adjudicate unfair labor practices
but, in the absence of a union at GAO, has not had the occasion to do so.
2 The vacancy that occurred with the expiration of a member’s term in September, 1994 has not been filled. The vacancy
that occurred with the expiration of a member’s term in June, 1996, was filled early in fiscal year 1997.
3 In addition to the Special Assistant who chairs the panel, the other voting members are three assistant or deputy assistant
comptrollers general, the Director of the Civil Rights Oftice, and the General Counsel. The non-voting members are an
Executive Secretary appointed by the Comptroller General, and a member and alternate from each of six employee councils.
                                                                                                 :   i   I,,.   ..;,   ..:i
                                                .^   I




Figure       1.1: Organizational             chart for the Personnel    Appeals   Board
                                                                             “*           ’ ‘.
    Board Member                                         Board Member




                 Office of General Counsel
         I            Genen 31Counsel




                                       Senior Trial
                                        Attorney




    I    Paralegal

                               -u       Secretary
0   /   Vice Chair        \               Board Member




                                         Executive Director

                                  ‘-
                                  ’              I



                Co-Directors of                                   Solicitor to the
                EEO Oversight




                                       Administrative Assistant
                      Expanded                       Jurisdiction

                             From 1994 UntilJanuary       23,1996, the
                        Board had the authority to hear appeals of
                        employees of the Archi&ct%f the”Ca$ol
                        (AoC), the Botanic Garden, and the Senate
                        Restaurants that alleged discrimination       in
                        employment    based on race, color, religion, sex;
                       national origin, age, or disability4 The Board
                       was to hear those appeals after the employees
                       exhausted their internal administrative        com-
                       plaint process. Appeals from those employees
                       are now handled by the Office of Compliance
                       which was established by the Congressional
                       Accountability   Act of 1995 (C%LQ5 That Act
                       makes eleven civil rights and worker protec-
                       tion laws apphcable to employees of Congress
                    ._ and legislative branch agencies.        ,,,‘. I -’




                           ,.           ..   .   .
,,.       ,,
      ’        ,I     ,.        /   ,




                                                        :




                    4 Architect of the Capitol Human Resources Act (ACHRA), Pub. L. 103-283, $312, 108 Stat. 1443, went into effect on July
                    22, 1994. The Act also amended the GAOPA to reflect the Board’s expanded jurisdiction.    &, §312(e)(4)(A-C).
                    5 Pub. L. No. 104-1, 109 Stat. 3 (Jan. 23, 1995). An employee previously covered by the ACHRA may file charges with the
                    Board if the action forming the basis of the complaint occurred before January 23, 1996.
:,
I


           The Appeal           Process                                       den, or the Senate Restaurants arising from
                                                                              (1) a complaint of discrimination       based on
                An employee, a group of employees, a la-                      race, color, religion, sex, national origin, age,
          bor organization6 or an applicant for employ-                       handicap or disability’      or (2) a complaint of
          ment at GAO may file an appeal with the                             intimidation     or reprisal for exercising rights
          Board, which can hear individual          complaints                granted by the AoC Human Resources Act.
          as well as class actions. An appeal by a GAO                                           .’      ., I.1
                                                                                                            : ._/
          employee may arise from (1) a removal, a sus-
          pension for more than 14 days, a reduction in                      Piehearing          Discrimination
          grade or pay, or a furlough of not more than 30                    Complaint          Procedures
          days; .(2) a prohibited personnel practice; (3)                                       >’ *‘,
          an unfair labor practice or other labor rela-                            At GAO, the’eeo complaint process begins
          tions issue; (4) an action involving prohibited                    with a consultation   with a’civil rights counse-
          discrimination;     (5) prohibited political activity;             lor, contact with whom must occur within 45
          and, (6) any other personnel issues that the                       days of the alleged incident8     If the matter
          Comptroller     General, by regulation, deter-                     cannot be resolved, a formal written complaint
          mines that the Board should hear.                                  may be filed with the Affirmative Action/Civil
                For actions forming the basis of complaints                  Rights Office (AA/CR01 within 15 days of re-
          arising before January 23,1996, the Board                          ceipt from the counselor of notice of the right
          may hear appeals from employees of the Ar-                         to file a complaint; The Director of the
                                                                                                     .;
          chitect of the Capitol (AoC), the Botanic Gar-




          6 Labor organizations at GAO are covered by the GAOPA; the AoC Human Resources Act does not cover such organizations.
          7 Definitions of discrimination   are consistent with $717 (Title VII) of the Civil Rights Act of 1964 (42 U.S.C. $2000e-16); $15
     I’   of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 8633a); $501 of the Rehabilitation Act of 1973 (29 U.S.C.
          $791); and @102-104 of the Americans with Disabilities Act of 1990 (42 U.S.C. @12112-14).                                           1
          * The complete procedures for tiling a complaint may be found at US. General Accounting Office Operations Manual, Order
          2713.2, “Discrimination    Complaint Process” (October 14, 1994) (hereafter GAO Order 2713.2).                                      ;
                                                                                                                                              I5
       AA/CR0 can either accept or dismiss the com-                      ity to investigate and to prosecute alleged
       plaint.” If the complaint is accepted, it is in-                 violations of the law over which the Board has
       vestigated by AA/CR0 staff which then sub-                       jurisdiction.     Once an individual      complaint is
1      mits a report to the Director of AAKRO.               If          investigated by PAB/OGC, the complainant             is
       the complaint cannot be resolved through ne-                      advised about appeal rights and settlement
       gotiation with GAO management,              the Director          options. If no settlement occurs, PAB/OGC
       submits a recommended decision to the Comp-                       issues a right-to-appeal    letter notifying the
       troller General who then issues a final agency                    employee, the affected agency management,
      ‘decision. The decision of the Comptroller              Gen-       and the Board that the investigation          has been
       eral. may he appealed to the Board, as may AA/                    completed.
       CRO’s decision to dismiss a complaint.                                  The employee also receives PAB/OGC’s
             ,For appeals involving complaints arising                   confidential statement that includes the re-
       from incidents that occurred before January                       sults of the investigation     and a determination
    1 23,1996, employees of the AoC, the Botanic                         of whether there is a legal and factual basis
       Garden, or the Senate Restaurants must file a                     for an appeal. At this point, PAB/OGC advises
       written Request for Formal Advice with the                        the employee whether there are reasonable
       Architect of the Capitol Fair Employment                          grounds to believe that the employee’s rights
       Practices Office (AOCFEP) within 180 days of                      under the GAO Personnel Act or the AoC Hu-
       the alleged ,discrimination      or retaliation.‘O       If       man Resources Act have been violated. If
       no resolution is reached during the Formal                        PAB/OGC determines that such grounds exist,
      Advice period, a factfinder is assigned to in-                     it offers to represent the employee before the
      vestigate the employee’s claim. The factfinder                     Board at no expense to the employee or the
       submits a written report to the employee and                      employee may retain private counsel. If the
       to the head of the division with which the em-                    determination     is made by PAB/OGC that there
       ployee has a complaint.      After the Factfinding                are no reasonable grounds to support the
       Report has been submitte,d, the employee has                      claim, nevertheless, the employee may appear
       20 days to prepare a Formal Complaint detail-,                   pro se or retain private counsel to represent
       ing the claim of alleged discrimination            or re-        him or her in the appeal.
      taliation.    The Architect reviews the Formal                           If an employee chooses to pursue an ap-
       Complaint and the Factfinding Report and                          peal, he or she must file a petition for review
      makes a determination        on any claims that                   with the Board within 30 calendar days after
      were not resolved in the foregoing steps. The                      service of the right-to-appeal      letter from the
       Determination      of the Architect may be ap-                    PAB/OGC. Upon receipt of the petition, the
      pealed to the Board.                                               Chair may appoint a single Board member to
                                                                        hear and decide the case’or determine that the
      Initiating        an Appeal                                        Board will hear the case en bane.
                                                                               The Board member’s decision is final un-
            When the prehearing complaint proce-                         less the Board member grants a party’s motion
      dures have been completed and the complaint                        to reconsider; the PAB, on its own motion,
      has not been resolved or, in the case of non-                      decides to review the initial decision; or a
      discrimination   complaints, within 30 days of                    party requests full Board review. Final deci-
      the incident that precipitated  the complaint, a                   sions, with few exceptions, are appealable to
      charge may be filed with the Board’s Office of                     the U.S. Court of Appeals for the Federal Cir-
      General Counsel. That office has the author-                       cuit.


      B Reasons for dismissal of a complaint include that it fails to state a claim; that it was not filed in a timely manner; that it
      alleges a matter that was not raised in pre-complaint counseling; that it contains allegations not within the jurisdiction of
      the CRO; or that it sets .forth matters that are contained in a pending complaint or are the basis of a petition for review
      before the PAR or of a pending civil action in a Federal Court in which the complainant is a party; or that is a matter that
      has been finally decided. A complaint may also be dismissed at any time during the process for failure of the complainant
      to prosecute the complaint. GAO Order 2713.2, ch. 3, $5.
      lo Architect of the Capitol, Eaual Rmnlovment Onoortunitv Procedures Manual.
Board Decisions                                                     The Board’ went on to hold that the dis-
                                                              abled veterans were not entitled to an
       Early in fiscal year 1996, a Board member              attorney’s fee award inasmuch as they were
 decided a case involving a class comprised of                not the prevailing party in the proceeding.
 disabled veterans employed by GAO between                    (Docket No. 91-03, June 4,1996)
 October 31,1990, and January 17,1992. The
 Petitioners had alleged, among other things,                      Another case before the Board involved an
that GAO had failed to establish an affirma-                  appeal filed by an employee of the Personnel
tive action plan for disabled veterans. During                Appeals Board. The.petition      for review al-    *
lengthy pre-trial proceedings, it was deter-                  leged that a suspension and performance ap-
mined that the agency was indeed bound to                     praisal constituted prohibited personnel prac-
honor its voluntary commitment         in Chapter 10          tices. Because’this was an internal Board
 of GAO Order 2306.1, in effect between 1980                  matter, the Chief Administrative      Law Judge of
 &d 1992, to establish such a plan for disabled               the Merit Systems Protection Board sat in
veterans. That determination        made it neces-            place of the Personnel Appeals Board.” The
 sary to ascertain whether the disabled veter-                Administrative     Judge granted the Board’s
ans had been harmed by the non-observance of                  motion to dismiss the case for lack of jurisdic-
the commitment.        The question of whether the            tion because the Board’s rescission of the two
Petitioners had suffered cognizable harm be-                  personnel actions rendered the petition moot.
came the sole issue remaining       to be decided in          (Docket No. 95-03, April 22,1996)
the case. The presiding member decided that                        The employee, appealed the decision to the
the Petitioners neither showed’ any harm nor                  united States Court ‘of Appeals for the Federal
proved any damages arising from the absence                   Circuit which affirmed the Administrative
of an affirmative     action plan for disabled vet-           Law Judge’s decision.12
erans. (Docket No. 91-03, Nov. 20,1995)
                                                                   Three of the cases before the Board in
       In a unanimous decision, the full Board                fiscal year 1996 were settled prior to the issu-
 affirmed the initial decision described above.               ance of initial decisions.
The Board found that disabled veterans in
GAO’s employ were not entitled to damages
because of the agency’s failure to adopt and/or               Class Action         Appeals       to the Board
implement      an affirmative action plan for them
during the 1980-92 period.                                           Equal employment  opportunity class ac-
       The full Bo;ard agreed with the pivotal                tion appeals are processed through an admin-
conclusion inthe initial decision that GAO                    istrative hearing in the GAO complaint pro-
Order 2306.1 did not require an affirmative                   cess, bypassing the PAB/OGC investigation
action program for disabled veterans thatcon-                 and proceeding directly to the Board for re-
tained goals and timetables.      In this connec-             view.
tion, the Board found that the record con-
tained nothing to suggest that disabled veter-
ans were underrepresented       at the agency dur-
ing the relevant period in grades 7-15.




I1 In the event of an appeal from a Board employee, the Board’s regulations provide for the appointment and detail of an
administrative law judge from the MSPB or the EEOC to perform the Board’s adjudicative functions. 4 C.F!R. $28.17
(1996).
I2 Docket No. 96-6001, Oct. 10, 1996 (Fed. Cir.)




                                                                                                                           e
Figure,S.E: Number             of cases filed with the Personnel Appeals               ,Board in each of the past ten
fiscal years ,                     :              ,’
      .:     :                         I                8,’      I’.
                          10                                                 ,

                                                                                                                          9




   ,;                                                               ‘I   ,




                           The steps to process cases before the Board           l   Final prehearing or status conference
                            are:                                                     held, if necessary
        ,./,/        .,       ‘8: ‘.!*‘:!        ”
                                                                                  l  Hearing held
                            l   Petition for review filed                         0’ Posthearing briefs filed, if required
                I.         l <Notice of petition    for review sent out by        l  Board Member/Administrative        Judge
                                                                                                        ‘~,
                                Board (with service list)                            issues decision I’? 5
                           L Board Member/Administrative          Judge          .* Motions to reconsider or notice of appeal
                                assigned                                             for review by full Board filed
                           l    GAO responds to the petition for review           l  Final decision issued by full Personnel
                           l    Discovery                                            Appeals Board
                           l    Prehearing matters and motion practice            l  Appeal to the U.S. Court of Appeals for the
                           l    Board Member/Administrative       Judge              Federal Circuit.
                                rules on motions
                          l     Each side files witness list, exhibits and
                                prehearing brief, if required
                                                                                                                                          _’
                                                                                                                                    :..

                                                                                                                                               i

Figures 2.2 through       2.5 show the process of cases once a charge is filed.,                 ,,   ,

Figure    2.2: Process of Case From Charge                 to Termination        of Appeal                ‘,
 Charge Filed by Individual                       Investigation by PAB
    With PAB Offibe bf ’
      General Counsel




                                                                         Termination of Appeal
                                                                                                                   .’
                                                                               .      .’ ,:’                   :        ..,.   ,’
                                     ,
Figure   2.3: Process of Case to Final              Board Member’s           Decision    With No Appeal
         Charge Filed by Individual                   Investigation by PAB                         Right-to-Appeal Letter
            With PAB Office of                                                                b From PAB Office of General
                                                +
              General Counsel                           General Counsel                            Counsel to Petitioner




     Petition for Review From         Discovery, Motions,
+     Petitioner to the Board
          (Within 30 Days)




                                                                [       Final Decision    k                                  1
Figure   2.4: Process of Case From Charge                  to Judicial        Review
         Charge Filed by Individual                   Investigation by PAB                              Right-to-Appeal Letter
            With PAB Office of’                                                                    b From PAB Office of General
              General Counsel                             General Counsel                               Counsel to Petitioner




     Petition for Review From
      Petitioner to the Board




                                      Motion for Review                      Response to Motion                       Full Board
                                         Full Board                         Review by Full Board
Figure    2.5: Process of Reduction-in-Force                Case (employee’s   option)
     Petition Filed by Individual     Discovery, Motions,
 with Clerk of poard within 30 days
       of effective date of RIF
PAB Office          Of General’         Counsel                   PABIOGC             Employee   Contacts
Activities
                                                                        In addition to investigating      and prosecut-
 Case Activity                                                    ing cases, PAB/OGC also provides information
                                                                  to employees about their personnel and equal
      The Office of General Counsel began fiscal                  employment       rights. To accomplish this, the
year 1996 with 19 cases open from the previ;                      PAB Office of General Counsel periodically
ous year; 57 new charges were filed with PAB/                     makes presentations        to GAO’s employee coun-
OGC during the fiscal year. Fifty of the new                      cils;updating      them on recent changes in the
cases concerned prohibited personnel prac-                        law and Board procedures.
tices, 6 alleged discrimination,13 and one in-                          In May, 1996, the PAB/OGC sponsored a
volved a suspension. PAB/OGC closed 49 cases                      symposium for administrative           and support
during the fiscal year and negotiated four                        personnel, a group that received a high per-
settlement agreements.                                            centage of the RIF notices. During the sympo-
                                                                  sium, the General Counsel and his staff pro-
Comments,          on Proposed           Agency                   vided information       about employees’ rights in a
Actions                                                           RIF as well as the Board’s appeal process and
                                                                  answered questions from the participants.           In
        GAO’s reduction-in-force,    which prompted               addition, the General Counsel spoke at several
  a record number of charges filed with PAB/                      employee-sponsored        conferences about the
  OGC in FY 96, was preceded by the promulga:                     RIF, again, emphasizing employees rights and
 tion of new agency RIF regulations.14 The                        the appeal process.
 draft order was circulated for comment and                              Another significant activity of the Office
 the Board’s Office of General Counsel sug-                       of General Counsel involves responding to
 gested a number of changes to be made prior                      individual     employee questions about diverse
 to the finalization    of the Order. Among the                   issues such as personnel actions, performance
 suggestions were the following: limit the                        appraisals, grievances, complaint processing,
 agency’s discretion in the establishment      of                 and performance and development options.
 zones of consideration; place part-time and                      Ninety-two informational        inquiries were
 full-time employees on the same retention                        fielded in FY 1996 by the staff of the PAB’s
 register; allow an employee who has received                     Office of General Counsel, the majority of
 an improved rating to have it considered as                      them related to the RIF.
,the annual performance rating; allow appeals
 to the PAB within 30 days of receipt of a RIF
 notice; and apply all RIF procedures to post
 transfer of function RIFs. The agency adopted
 the suggestions relating to the retention regis-
 ter.




I3 Three of these six eeo cases involved employees of the Architect of the Capitol.
I4 GAO Order 2351.1
PABIOGC       Investigative       Authority           quested stay, require further briefing and/or
                                                      oral argument or conduct an evidentiary hear-
      The Office of General Counsel is respon-        ing. In fiscal year 1996, PAB/OGC received
sible for initiating  an investigation  when infor-   one request for a stay that was resolved
mation comes to its attention suggesting that         through settlement negotiations.
a prohibited personnel practice has occurred,
is occurring, or will occur, regardless of            Other Relief
whether a charge has been filed. If an indi-
vidual brings an allegation to the attention of            When PAB/OGC finds reasonable grounds
PAB/OGC, that individual        may remain anony-     to believe that a prohibited personnel practice     I
mous in most cases. After an investigation,      if   may have occurred, it may recommend correc-         i
PAB/OGC finds insufficient grounds to con-            tive action to management      and, if the recom-   i
clude that a prohibited personnel practice was        mendation is not followed, it may then petition
committed, it prepares a report, closing the          the Board to order corrective action.
case, and sends it to the individual    who                If the PAIYOGC determines after an in-
brought the complaint and to GAO manage-              vestigation that there are reasonable grounds
ment. If it is determined that there are suffi-       to believe that a prohibited personnel action
cient grounds to support the existence of a           has occurred or exists, it may propose disci-
prohibited personnel practice, the Office may         plinary action against the employee respon-
seek a stay of the personnel action, propose          sible for the practice. The Office may also
corrective action, or propose disciplinary   ac-      propose disciplinary    action against an em-       I
tion.                                                 ployee engaging in prohibited political activity
                                                      In either case, PAB/OGC’s proposal for disci-
                                                      pline is presented to the Board and to the em-      I
Stays                                                                                                     I
                                                      ployee. After a hearing, the Board decides
     When an employee requests that PAB/              whether discipline is warranted and what is
OGC seek a stay of a personnel action, the            appropriate.
Office of General Counsel is authorized to                 PAB/OGC did not initiate any information
conduct an investigation   into the allegations.      investigations,   recommend any corrective ac-
                                                      tion, or institute disciplinary proceedings in      I
PAB/OGC may request that the Board issue
an ex parte stay, not to exceed 30 days, of any       the past fiscal year.
proposed personnel action that, in the General
Counsel’s judgment, may constitute a prohib-
ited personnel practice. If the request for an
ex parte stay is granted, the General Counsel
may then request either a further temporary
stay or a permanent stay of the proposed ac-
tion The Board may grant or deny the re-
                                                                                             :              .,    r,.



                                                                                      ,.         :“’         .,




Figure   2.6: New cases filed with PAB/OGC   in each of the past ten fiscal years

                 60
                                                                                                       i7



                 50



                 40



                 30



                 20



                 10



                 0

                      1967    1968   1989     1990    1991    1992    1993     1994        1995        1996
:,


i-
Administrative           Actions                             appeal letter from the PAR Office of General
                                                              Counsel (PAB/OGC). An individual          could chal-
Regulatory         Revisions                                 lenge a RIF-based separation by filing an ap-
                                                             peal with the Clerk of the Board within 30
      During GAO’s appropriations      cycle for             days after the effective date of the RIF action.
fiscal year 1996, Congress determined that it                      Individuals   subject to the new provisions
would reduce GAO’s funding by 25 percent: 15                 may, nonetheless, choose to follow the PAB’s
percent in fiscal year 1996 and 10 percent in                normal process, by filing a charge with the
fiscal year 1997. Agency management          con-            PAB/OGC. That office investigates the
cluded that, because nearly 80 percent of                    charges and, if it finds reasonable grounds to
GAO’s budget is consumed by salaries and                     believe that the employee’s rights have been
personnel-related     costs,15 GAO could’not ab-             violated, represents the individual      before the
sorb such a cutback without reducing the                     PAB unless the employee elects not to be rep-
workforce. The agency decided to accomplish                  resented. If the PAB/OGC does not find rea-
the reduction through a variety of methods,                  sonable grounds to believe that a violation has
including offering separation incentives, clos-              occurred, the employee may still pursue the
ing field offices, and conducting a reduction-in-            matter before the Board after the PAB/OGC
force.                                                       issues a right to appeal letter.
      Prior to the issuance of the RIF notices,                    In July, after the period to allow for com-
the Board reviewed its own regulations to de-                ments had expired and the comments had
termine whether the RIF warranted any                        been reviewed and considered, the Board is-
changes in Board procedure. In interim regu-                 sued its final regulations that, for the most
lations published in March, the Board decided                part, followed the interim regulations.        In fi-
to revise its regulations to streamline, at the              nalizing the regulations, the PAB clarified that
employee’s option, the procedure for filing an               in RIF-based termination       cases involving eeo
appeal from a separation from employment                     allegations, an individual     may pursue his or
resulting from a RIF action. The new provi-                  her claim on an expedited basis by filing di-
sions were published on an interim basis to                  rectly with the Board, bypassing both the
allow for comment from employees and agency                  agency’s Civil Rights Office and the PAB/OGC.
officials. They amended PAB regulations to
give individuals    who lose their jobs through a
RIF the option of filing an appeal directly with
the Board, without first obtaining a right to




I5 Statement of John H. Luke, Deputy Assistant Comptroller General for Human Resources, GAO, before the Subcommittee
on Civil Service, Committee on Government Reform and Oversight, House of Representatives (May 23, 1996).
    I
’   1
                                                                                                                          r
Oversight         Projects                                    Downsizing           Study

      The GAO Personnel Act ‘directs the Board                     Throughout   the past fiscal year, the Board           i-e
to oversee equal employment     at GAO through                continued its 15 month study of GAO’s                       E
                                                                                                                          r
review and evaluation of GAO’s procedures                     downsizing efforts. l7 The Board’s study, which
 and practices.16 Pursuant to this mandate,                   will culminate in a report to be issued in N                /j
the Board’s Office of Oversight conducts stud-                97, focuses on the eeo implications,    if any, of
ies of selected issues and prepares evaluative                the downsizing activity that occurred at GAO
reports that contain specific recommendations                 between July 1,1995 and September 30,1996,’                 i
to the agency The Office of Oversight focus in                a period that encompassed the buyouts and
fiscal year 1996 was on the agency’s                          early retirement   offers, three field office clos-         I
downsizing efforts, age issues in employment,                 ings, and the reduction-in-force.
and promotions.
                                                              Promotion          Study                                    I
Report      on Hearing         on Age Issues
                                                                   The Board also began work on a new over-
       In N 95, the Board held its first informa-             sight study addressing rates of promotions of
 tional hearing to examine issues that affect                 GAO employees between 1990 and 1995. The
 older workers, generally, and those employed                 purpose of the study is to determine whether
by GAO, specifically      Participants    at the hear-        there were significant differences in the rates
ing included representatives        from the Ameri-           based on race, gender, national origin, age, or
can Association of Retired Persons (AARP), the                disability. During the study, which also will
Equal Employment         Opportunity     Commission           result in a report in N 97, the Board will also
(EEOC), the Office of Personnel Management                    review GAO’s promotion system to determine
(OPM), GAO management,             and GAO employee           whether there are any potential barriers to
councils and a private attorney representing                  equal employment      opportunity.
some employees who have filed an age dis-
crimination    suit against GAO.
      In N 96, the Board issued a report that
summarized the participants’          remarks, as well
as supplemental     information      subsequently
provided by GAO’s Personnel Office.
      The issues addressed by the participants
were downsizing, promotions, recruitment             and
hiring, and training,     The summary report
focuses on those topics, highlighting        the differ-
ing perspectives that the representatives         of
the private and public sectors, and manage-
ment and employees brought to the discus-
sions.




I6 31 U.S.C. $732(f)(2)(A); & applicable regulations at 4 C.F.R. $628.91 and 28.92. The Board was not granted oversight   I
authority for the AoC, the Botanic Garden, or the Senate Restaurants.                                                     /!
l7 The Board’s study began with the last quarter of FY 95 (July 1,1995 through September 30,1995) when the buyouts were   I/
offered and ended on the last day of FY 96 (September 30, 1996).
                                                                                                                          I
       GAO’S Discrimination             Complaint                  Subsequent to the agency’s review of the
       Process and Mediation             Program             report for comment and before the publication
                                                             of the report, the agency adopted and imple-
             The Board’s report on GAO’s internal com-       mented a number of the Board’s recommenda-
       plaint process was completed late in FY 95            tions. AAKRO, for example began providing
       and published at the beginning of FY 96. In           informational      packages to all complainants
       the report, entitled GAO’s Discrimination             and participants      in the mediation program.
       Complaint Process and Mediation Program,              The office also began developing a customer
       the Board made a number of recommenda-                satisfaction qu.estionnaire; began exploring the
       tions to ensure continued improvement        in the   possibility of annual training for counselors
       discrimination    complaint process and the me-       and complaint counseling through the use of
       diation program; Among those recommenda-              video-conferencing;       and put in place a com-
       tions were that civil rights counselors and           plaint tracking system that complies with the
       mediators participate in annual training; that        Board’s’specifications.
       AA/CR0 adhere to internal timeframes;         that          In addition, the Deputy Assistant Comp-
       eeo and personnel function be separated at the        troller General for Human Resources assured
,. j   management      level; that complainants    and       the Board that the agency will begin a full
       mediation participants     be fully apprised of       review of all relevant regulations and Orders
       their rights, including procedures to enforce         to determine if there is a more effective way to
       settlement agreements; and that customer              conduct the eeo complaint process.
       satisfaction surveys be used to assess the me-                   \
       diation program. ’
/-_
I

i