oversight

U.S. Department of Agriculture: Problems Continue to Hinder the Timely Processing of Discrimination Complaints

Published by the Government Accountability Office on 1999-01-29.

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

                 United States General Accounting Office

GAO              Report to the Honorable
                 Edolphus “Ed” Towns, Committee on
                 Government Reform, House of
                 Representatives

January 1999
                 U.S. DEPARTMENT
                 OF AGRICULTURE
                 Problems Continue to
                 Hinder the Timely
                 Processing of
                 Discrimination
                 Complaints




GAO/RCED-99-38
      United States
GAO   General Accounting Office
      Washington, D.C. 20548

      Resources, Community, and
      Economic Development Division

      B-281466

      January 29, 1999

      The Honorable Edolphus “Ed” Towns
      Committee on Government Reform
      House of Representatives

      Dear Mr. Towns:

      Civil rights at the U.S. Department of Agriculture (USDA) has long been a
      troubled area. Over the years, internal and external reports have described
      problems in USDA’s delivery of services to program beneficiaries—such as
      minority farmers—and in its treatment of minority employees. These
      studies have also cited weaknesses in the Department’s overall
      management of its civil rights programs.

      In February 1997, the Civil Rights Action Team, composed of senior USDA
      officials appointed by the Secretary of Agriculture, reported on its review
      of civil rights issues throughout the Department.1 Among other things, the
      team found that (1) USDA lacked an organizational structure to support an
      effective civil rights program, (2) USDA’s process for resolving
      discrimination complaints about the delivery of program benefits and
      services (program complaints)2 was a failure, and (3) USDA’s system for
      addressing complaints of employment discrimination (employment
      complaints) was untimely and unresponsive. The team made numerous
      recommendations to resolve these problems, one of which was to combine
      the Department’s civil rights functions in one office that reports directly to
      the Assistant Secretary for Administration—USDA’s top civil rights official.
      This was done in March 1997.

      The newly consolidated Office of Civil Rights (OCR) made one of its top
      priorities the resolution of the Department’s large backlog of program and
      employment complaints. OCR defines backlog complaints as complaints
      that were active before November 1, 1997; complaints filed with OCR on or
      after November 1, 1997, are considered “new” complaints. New program
      complaints are processed under procedures and time frames that were
      developed in conjunction with a recommendation in the Civil Rights
      Action Team’s report. Employment complaints—both new and backlog
      cases—are to be processed under the governmentwide regulations that


      1
        Civil Rights at the United States Department of Agriculture: A Report by the Civil Rights Action Team,
      U.S. Department of Agriculture (Feb. 1997).
      2
       A program complaint might allege, for example, that a USDA official discriminated against a farmer
      on the basis of race by failing to process a loan application.



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                   govern equal employment opportunity complaints. These regulations
                   require, among other things, that a federal agency complete an
                   investigation of a complaint and issue an investigation report within 180
                   days from the date the complaint was formally filed.3

                   Concerned about allegations of management weaknesses and of
                   discrimination in the Department, you asked us to (1) examine the
                   timeliness of OCR’s processing and closing of program and employment
                   discrimination complaints and (2) identify the reasons for delays in the
                   processes.


                   USDA’s efforts to process discrimination complaints are falling short of its
Results in Brief   goals for closing its complaint backlog—one of the Secretary’s top
                   priorities. The dates USDA established for closing its backlogs of program
                   and employment discrimination complaints have been extended several
                   times beyond its initial target date of July 1, 1997. As of October 1, 1998,
                   USDA had closed only 44 percent of its 1,088 backlog program cases and
                   64 percent of its 2,142 backlog employment cases. Its most recent goal was
                   to close all remaining backlog cases by December 31, 19984—the fourth
                   deadline it has set for backlog program cases and its third deadline for
                   backlog employment cases. In addition, (1) many of USDA’s new program
                   cases are missing interim milestones and are therefore not on track for
                   being closed in a timely manner and (2) the time spent processing its
                   employment cases continues to far exceed federally mandated time
                   frames. For example, on October 1, 1998, 82 percent of the 397
                   employment cases being investigated by USDA had already exceeded the
                   180-day mandated time frame for investigations.

                   Although USDA has provided additional resources to enhance its
                   capabilities to address discrimination complaints, a number of problems
                   are impeding its efforts to process complaints more expeditiously. These
                   problems include such long-standing issues as continuing management
                   turnover and reorganizations in the Office of Civil Rights; inadequate staff
                   and managerial expertise; a lack of clear, up-to-date guidance and
                   procedures; and poor working relationships and communication within
                   the Office of Civil Rights and between the office and other USDA entities.
                   Furthermore, the Department is not consistently using alternative dispute
                   resolution techniques, such as mediation, to address workplace and other

                   3
                    The 180-day limit may be extended another 90 days in certain instances.
                   4
                   As of Jan. 20, 1999, USDA had not responded to our request for information on whether or not it had
                   met its Dec. 31, 1998, goal of closing its backlog of program and employment complaint cases.



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             disputes before they become formal employment complaints. Federal law
             and regulations encourage the use of alternative dispute resolution in
             resolving federal workplace and other disputes.


             The past few years have been a period of upheaval for civil rights at USDA.
Background   During this period, an increasing number of USDA employees have filed
             discrimination complaints. Also, in December 1996, a group of minority
             farmers demonstrated in front of the White House to protest what they
             viewed as systemic, long-standing discrimination in the Department’s
             agricultural lending programs. In October 1997, minority farmers filed a
             class action lawsuit that charged USDA with discrimination in lending and
             other departmental farm programs between 1983 and 1997 and failure to
             investigate discrimination complaints.5 In addition, recent legislation
             would enable past complainants either to bring suit or to obtain a
             departmental hearing on the record. This legislation waives the statute of
             limitations6 for suits alleging discrimination between 1981 and 1996 that
             were filed with the Department before July 1, 1997.

             Concerned about allegations of discrimination, the Secretary of
             Agriculture, in December 1996, appointed the Civil Rights Action Team to
             review civil rights issues and develop recommendations to address
             institutional problems. The team held a dozen “listening sessions” with
             USDA customers and employees throughout the country before issuing its
             report in February 1997. The report made 92 recommendations to address
             four major problem areas: (1) the organizational structure of civil rights,
             (2) the lack of management commitment to civil rights, (3) program
             delivery and outreach, and (4) workforce diversity and employment
             practices. Shortly after the report was issued, the Secretary established a
             Civil Rights Implementation Team to implement the report’s
             recommendations. Several months later, in testimony before the House
             Committee on Agriculture, the Secretary stated that his goal was to get



             5
              Pigford v. Glickman, Civil Action No. 97-1978 (D.D.C. filed Oct. 23, 1997). On Oct. 9, 1998, the district
             court certified that the persons bringing the suit could represent the class of minority farmers, thereby
             allowing the case to continue as a class action. A multimillion-dollar settlement agreement was
             announced on Jan. 5, 1999. According to USDA, the district court judge presiding over the case is
             expected to give final approval to the agreement in March 1999. USDA’s civil rights investigative unit
             was dismantled in 1983. After that, USDA agencies conducted preliminary inquiries of program
             discrimination complaints that had been filed against them. However, in May 1997, OCR assumed
             authority for investigating cases.
             6
              The Omnibus Consolidated and Emergency Appropriations Act, 1999 (P.L. 105-277, Oct. 21, 1998,
             division A, sec. 101(a), title VII, section 741). The statute of limitations limits the time a plaintiff may
             bring an action in court against a defendant.



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USDA out from under the past and have it emerge as the federal civil rights
leader.

Regarding organizational issues, the action team’s report noted that USDA’s
civil rights program had been in a persistent state of chaos because of
numerous changes since the 1980s. The last reorganization prior to the
team’s report had occurred in October 1995, when departmental civil
rights responsibilities were divided between two offices with two separate
leaders—one office was responsible for employment and program
discrimination complaints and one for all remaining civil rights issues,
including the development of civil rights policy. In addition, most USDA
agencies had their own civil rights offices that performed some
complaint-processing functions. According to the report, this
fragmentation of responsibilities left employees and customers (such as
farmers) confused about where to go for help.

In March 1997, USDA consolidated its departmental civil rights functions
under a new Office of Civil Rights (OCR). While OCR has overall
responsibility for the Department’s civil rights program, USDA’s agencies
continue to have their own civil rights offices that are responsible for
ensuring agency-level compliance with civil rights laws and regulations.7
OCR’s fiscal year 1999 budget is about $13 million, about the same as in the
previous year. As of October 1, 1998, OCR had about 120 staff. OCR is
undergoing another reorganization that was expected to be effective
January 15, 1999.8 Under this reorganization, the office will consist of nine
divisions, as shown in figure 1.




7
 USDA has 12 agency civil rights offices—in some instances, several agencies in a mission area share a
civil rights office. The directors of these offices report to their agency or mission area heads but
receive guidance and oversight from OCR.
8
 As of Jan. 20, 1999, USDA had not responded to our request for information on whether the
reorganization was effective on Jan. 15, 1999.



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Figure 1: Proposed Reorganization of USDA’s Office of Civil Rights


                           Policy & Planning                         Director
                                Division




             Deputy                                                  Deputy                                         Deputy
             Director                                                Director                                       Director
            Employment                                               Program                                       Systems &
                                                                                                                  Administration




      Agency                                                                                                        Tracking,
                   Employment       Program                Program                                                                   Resource
     Support &                                                              Program                                Application
                   Complaints      Adjudication         Investigations                        Accountability                        Management
      Special                                                              Compliance                              & Analysis          Staff
     Emphasis



                                               Source: USDA’s Office of Civil Rights.




                                               The reorganization will add three new divisions to the current
                                               structure—the Program Adjudication, Program Compliance, and Resource
                                               Management Staff divisions.9 It also creates a new position of Deputy
                                               Director for Systems and Administration, which was filled in
                                               September 1998. The Program Investigations and Adjudication Divisions
                                               will be responsible for processing program complaints; the Employment
                                               Complaints Division will continue to be responsible for processing
                                               employment complaints. While there are similarities in some of the steps
                                               followed in processing the two types of complaints (such as conducting an
                                               investigation and determining whether discrimination has occurred), the
                                               specific procedures used to process them and the laws and regulations
                                               that govern them are different.




                                               9
                                                The Program Adjudication Division will review reports of investigations and draft final agency
                                               decisions on program complaints; the Program Compliance Division will conduct employment and
                                               program compliance reviews; and the Resource Management Staff Division will be responsible for
                                               such issues as contracting, budget, travel, and training. Prior to the reorganization, compliance reviews
                                               and adjudications were part of the Program Investigations Division. Several staff positions (e.g.,
                                               special and confidential assistants, secretaries, and an agricultural economist) are not shown on the
                                               organizational chart.



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Program Discrimination   USDA  is responsible for enforcing many statutes, regulations, and executive
Complaints               orders that prohibit discrimination on such grounds as race, color,
                         national origin, and age in programs or activities that it conducts
                         (conducted programs) and in programs for which it provides federal
                         financial assistance (assisted programs). USDA’s conducted programs (such
                         as farm loan programs) are administered directly to participants through
                         agency offices; USDA’s assisted programs are those in which nonfederal
                         organizations (such as the states) are responsible for providing federal
                         assistance to participants, such as those in the Food Stamp Program.10 OCR
                         is responsible for processing complaints for both conducted and assisted
                         programs, but the great majority of its cases arise from conducted
                         programs. However, other than requiring that complaints generally be filed
                         within 180 days from the date the person knew or should have known of
                         the alleged discrimination (conducted programs) or the date of the alleged
                         discrimination (assisted programs), USDA’s codified regulations provide
                         few specifics on the program complaint process.11

                         On November 1, 1997, OCR began implementing a new system for
                         processing discrimination complaints in conducted programs. For
                         complaints accepted on or after that date, OCR requires that they be
                         resolved (through dismissal, withdrawal, settlement, or decision) within
                         180 days from the date the complaint is accepted. The system also
                         establishes interim time frames, including a requirement that the USDA
                         agency against which the complaint was filed provide OCR, within 24 days,
                         its perspective on the complainant’s allegations.

                         As of October 1, 1998, OCR had 611 cases remaining in the program
                         complaint backlog and 193 new program cases. In fiscal year 1998, OCR had
                         about 30 staff assigned to processing new and backlog program
                         complaints. The vast majority of program complaints come out of the
                         programs conducted by USDA’s Farm Service Agency (FSA) and Rural
                         Housing Service. As of October 1, 1998, 65 percent and 23 percent of new
                         open cases were related to FSA and Rural Housing Service programs,
                         respectively, as were 61 percent and 21 percent of open backlog cases.




                         10
                           According to an OCR official, most assisted program complaints concern (1) alleged violations of the
                         Fair Housing Act (42 U.S.C. 3601-3619) filed against participants in housing-related activities, which
                         are administered by USDA and investigated by the Department of Housing and Urban Development, or
                         (2) allegations against USDA’s Food and Nutrition Service programs, such as the Food Stamp Program.
                         11
                            In addition, a person who believes he or she has been discriminated against in a USDA-assisted or
                         -conducted program may file a case in court instead of filing an administrative complaint.



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Employment                  Several statutes protect federal employees against discrimination in
Discrimination Complaints   employment—particularly title VII of the Civil Rights Act of 1964, as
                            amended, which makes it illegal to discriminate in employment on the
                            basis of race, color, religion, sex, or national origin.12 Employment
                            discrimination complaints within USDA are to be processed under the Equal
                            Employment Opportunity Commission (EEOC) regulations that apply to
                            executive branch employees. These regulations also establish processing
                            time requirements for each stage of the complaint process.

                            Under EEOC regulations, before filing a formal complaint, employees who
                            believe that they have been discriminated against must first contact an
                            Equal Employment Opportunity (EEO) counselor within 45 days of the
                            alleged discrimination to attempt to informally resolve the complaint.13 If
                            this effort is unsuccessful, USDA employees can file a formal complaint
                            with OCR, which either accepts or dismisses it. OCR may dismiss a
                            complaint if it was improperly filed—for example, if it was not first
                            brought to the attention of an EEO counselor or formally filed within
                            prescribed time limits.14 If OCR accepts the complaint, it investigates and
                            issues an investigation report. Under EEOC regulations, OCR must generally
                            complete these activities within 180 days from the date of the
                            complainant’s formal filing.

                            After receiving the investigation report, an employee who pursues a
                            complaint has 30 days to either (1) request a hearing before an EEOC
                            administrative judge, who issues a recommended decision that the agency
                            can accept, reject, or modify in making its final decision or (2) forgo a
                            hearing and ask for a final agency decision. When there is no EEOC hearing,
                            regulations require that the complaint be decided within 270 days from the
                            filing date; with an EEOC hearing, the complaint must be decided within 450
                            days from the filing date. An employee dissatisfied with an agency decision
                            to dismiss a complaint or with a final agency decision may appeal to EEOC
                            or file a civil action in a federal district court. Figure 2 shows the process
                            and time frames for federal employment complaints as prescribed in EEOC
                            regulations.



                            12
                              Other statutes protect federal employees from discrimination in such areas as age and disability.
                            13
                             In USDA, EEO counselors work in agency civil rights offices and attempt to informally resolve the
                            employment complaint. Also, in certain instances, the 45-day limit may be extended.
                            14
                              Other reasons for dismissal include the inability to locate the complainant, the complainant’s failure
                            to provide information to the agency, or the complainant’s failure to accept a full settlement offer. In
                            addition to dismissal, employment complaint cases can be closed (1) if the complainant withdraws the
                            case, (2) through settlement, or (3) through a final agency decision on the case’s merits.



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Figure 2: Process and Time Frames for Federal Employment Complaints

                  270 days allowed from date a complaint is filed to an agency decision without a hearing

                                                                                                                  60 days for
                                                                      30 days to request         180 days for a                     No standard
      180 days to dismiss/accept and investigate complaint                                                          agency
                                                                           hearing                  hearing                            time
                                                                                                                   decision

                                                                                                                                       Possible
                                                                            Does                                                     complainant
                          Does agency      Accept                                          Yes
   Complaint                                          Complaint          complainant                 EEOC         Final agency          appeal
     filed                 accept or                 investigated          request                  hearing         decision         to EEOC or
                           dismiss?                                       hearing?                                                    court suit

                                                                                No
                                 Dismiss




                                                    Note: If a complainant requests an EEOC hearing, an additional 180 days are allowed for the
                                                    hearing, for a total of 450 days for the entire process.

                                                    Source: GAO’s analysis of 29 C.F.R. part 1614 and EEOC Management Directive 110.




                                                    While OCR has categorized its employment cases into backlog cases and
                                                    new cases, all employment cases are to be processed according to EEOC
                                                    regulations.

                                                    As of October 1, 1998, OCR had 761 employment complaint cases remaining
                                                    in the backlog and 701 new cases, for a total of 1,462 cases in its
                                                    employment complaint inventory. The largest percentage (about
                                                    21 percent) of these cases were from the Forest Service, USDA’s largest
                                                    agency, followed by the Animal and Plant Health Inspection Service,
                                                    which accounted for 14 percent. OCR has about 30 staff members
                                                    responsible for processing employment complaints. Currently, these
                                                    complaints are processed along functional lines, with staff specializing in
                                                    various phases of the complaint process, such as acceptance/dismissal,
                                                    report of investigation, and adjudication (drafting a final agency decision).

                                                    Since the early 1990s, both the federal and private sectors have seen a
                                                    dramatic increase in the number of workplace discrimination complaints
                                                    and the cost and time involved in trying to resolve them. To address these
                                                    complaints, private companies and federal agencies, including USDA, have
                                                    turned to alternative dispute resolution (ADR) as a way of resolving



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                                     workplace problems.15 ADR includes a variety of dispute resolution
                                     techniques that usually involve intervention or facilitation by a neutral
                                     third party. Examples of ADR techniques include mediation, arbitration,
                                     and dispute resolution boards.


                                     OCR is not processing discrimination complaints within its own deadlines
USDA Is Not                          for program complaints or within the EEOC requirements for employment
Processing Cases in a                complaints. OCR did not meet the original goal of resolving its backlog of
Timely Manner                        program and employment complaints within 120 days after the issuance of
                                     the Civil Rights Action Team’s report, and its deadline for closing the
                                     backlog of complaints has been extended several times. In addition,
                                     (1) OCR’s new program cases are often missing interim milestones and are
                                     not on track for being closed in a timely manner and (2) employment cases
                                     are continuing to exceed EEOC time frames.


Substantial Backlogs                 As of October 1, 1998, OCR had closed only 477 (or 44 percent) of its
Remain, and OCR Has                  backlog of 1,088 program cases and 1,381 (or 64 percent) of its backlog of
Extended Deadlines for               2,142 employment cases. OCR’s goal was to close all remaining backlog
                                     cases by December 31, 1998—its fourth deadline for backlog program
Closure Several Times                cases and its third deadline for backlog employment cases.

                                     The initial goal of July 1, 1997, for closing the backlog of program cases
                                     was extended first to July 1, 1998, and then to October 1, 1998. Table 1
                                     shows the status of the backlog program cases as of July 1 and October 1,
                                     1998. The initial date of July 1, 1997, is not included because OCR could not
                                     determine the number of cases in its program backlog until November 1,
                                     1997.

Table 1: Status of Backlog Program
Cases, July 1 and October 1, 1998                                                Cases closed                    Cases remaining
                                     Deadline                                  Number           Percent          Number            Percent
                                     July 1, 1998                                   400                37              688               63
                                     Oct. 1, 1998                                   477                44              611               56

                                     Source: GAO’s analysis of USDA’s data.




                                     15
                                       In a previous report, we noted that, overall, ADR has been more widely available within private firms
                                     than among federal agencies. See Alternative Dispute Resolution: Employers’ Experiences With ADR
                                     in the Workplace (GAO/GGD-97-157, Aug. 12, 1997).



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                           In September 1998, USDA’s Office of Inspector General (OIG) reported that
                           OCR had not made significant progress in reducing its backlog of program
                           complaints nor attained the efficiency needed to systematically reduce its
                           caseload.16 To address this impasse, the OIG recommended that the
                           Secretary convene a complaint resolution task force (independent of OCR)
                           to immediately assume control of the backlog.

                           In response, OCR established a task force, consisting of six teams, that
                           began work on October 19, 1998, to review the backlog of open program
                           cases17 and some closed program cases that may not have been adequately
                           processed and reviewed. Four teams were to review about 250 backlog
                           open cases (most of which had been investigated) to recommend
                           resolution actions, and two were to review about 500 backlog cases that
                           were closed administratively.18 Each team includes agency staff familiar
                           with the agency’s programs as well as OCR staff and a legal adviser from
                           the Office of General Counsel (OGC). According to the Director of OCR, the
                           groups’ mandate was to close all backlog cases under review by
                           December 31, 1998.

                           With regard to backlog employment cases, USDA’s goal for closure was also
                           December 31, 1998. As with program complaints, July 1, 1997, was the
                           initial target date for resolving backlog employment cases. When this date
                           was not met, a second date of July 1, 1998, was established. As of
                           October 1, 1998, 1,381 (or 64 percent) of the 2,142 backlog employment
                           cases, had been closed. OCR’s Employment Complaints Division has been
                           focusing its resources on processing the backlog cases in order to meet its
                           December 31 goal.


Processing of New          As discussed, effective November 1, 1997, USDA established the goal of
Program Complaints Often   closing each new program complaint within 180 days as well as interim
Falls Short of Interim     time frames for processing these complaints. At any time in the process, a
                           complainant may withdraw or settle the complaint.
Goals


                           16
                            Evaluation of the Office of Civil Rights’ Efforts to Reduce the Backlog of Program Complaints
                           (Evaluation Report No. 60801-1-Hq, Sept. 1998). This report was the OIG’s fifth evaluation of USDA’s
                           effort to reduce the backlog of program complaints and to improve the complaint-processing system.
                           17
                             Open cases that involve complainants who are part of the class action lawsuit were not to be
                           reviewed by the task force.
                           18
                            A case may be closed administratively if it fails to comply with legal or procedural requirements—for
                           example, if the complainant fails to respond to OCR’s request for additional information or is not a
                           member of a protected class.



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                                   Before a complaint is accepted as a new complaint, OCR reviews it to
                                   determine its basis (such as racial discrimination) and whether it falls
                                   within OCR’s jurisdiction. If more information is needed, OCR may request it
                                   from the complainant. Even though several months may be spent
                                   obtaining and reviewing information from the complainant, OCR does not
                                   count this time as part of the 180 days that it has to close new cases. OCR
                                   then accepts the complaint and determines if the case should be closed
                                   administratively or processed (if, for example, it should be investigated).
                                   Cases closed for administrative reasons are often shown in OCR’s reports
                                   as having been closed on the same day they were accepted as a complaint.
                                   For example, as of October 1, 1998, 101 of the 130 new program cases OCR
                                   had closed were reported as closed on the first day of the process.

                                   OCR’soperations manual for program complaints, developed by the Civil
                                   Rights Implementation Team, includes time frames for the stages in the
                                   program complaint process, as shown in table 2.

Table 2: Stages in the Program
Complaint Process and Associated   Processing stage                                                        Number of calendar days
Time Frames                        OCR acknowledges complaint                                                                              3
                                   Agency charged with discrimination
                                   responds to OCR                                                                                        24
                                   OCR conducts preliminary inquiry                                                                        6
                                   OCR (1) closes case through dismissala or
                                   referral or (2) proceeds to investigation                                                               5
                                   OCR investigates and drafts report                                                                     49
                                   OCR director and OGC, if requested, review
                                   report                                                                                                 14
                                                                              b
                                   OCR director issues decision on case                                                                    7
                                   Note: Although OCR’s operations manual calls for offering the complainant a mediation option at
                                   the time the complaint is acknowledged, OCR has not offered mediation, and this stage is not
                                   included in the table. In addition, it should be noted that while the manual calls for most cases to
                                   be resolved within 180 days, the cumulative number of days in the complaint process stages total
                                   less than 180 days.
                                   a
                                    This stage may take up to 14 days if dismissal is under consideration to ensure a fully informed
                                   decision and adequate documentation of the reasons for dismissal.
                                   b
                                    When discrimination is found in cases involving a loan subject to the Equal Credit Opportunity
                                   Act, damages must be determined before a final decision is made. The damages determination
                                   and decision take an estimated 64 days.

                                   Source: USDA.




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                                   Even though OCR has been using this new system for over a year, many of
                                   its cases are still in the early stages of the process—as of October 1, 1998,
                                   44 percent were in the agency response stage. Many of these complaints
                                   have already missed the time frames established for the initial stages, with
                                   serious delays occurring in the 24-day agency response stage. (See table
                                   3.) The Acting Assistant Secretary for Administration expressed concern
                                   that the agencies’ failure to respond in a timely manner may hinder OCR’s
                                   efforts to achieve its goal of processing complaints within 180 days. As of
                                   October 1, 1998, 69 cases had exceeded the 180-day goal for closing new
                                   program cases.19

Table 3: Timeliness of Agency
Responses, as of October 1, 1998                                    Agency               Agency
                                   Agency                        responses            responses
                                   responses                    received on         received late              Agency         Average days
                                   requested by              time (within 24       (more than 24            responses            to receive
                                   OCRa                               days)                days)              overdue             response
                                   186b                                       3                  69                      85             91
                                   Note : The agency responses include both open and closed cases.
                                   a
                                    An agency response is to include, among other things, (1) a statement of agreement or
                                   disagreement with the allegations and an explanation for any disagreements; (2) the agency’s
                                   perspective of the events that led to the filing; (3) the criteria the agency used to justify its
                                   position; and (4) additional relevant material, such as the complainant’s file.
                                   b
                                    In addition, 23 of the requested responses are not yet due, and 6 cases were closed without
                                   receiving the requested agency responses.

                                   Source: GAO’s analysis of USDA’s data.



                                   Although fewer cases have completed the 49-day investigation stage,
                                   delays are occurring here as well. As of October 1, 1998, the five cases that
                                   had completed this stage had spent an average of 150 days in it.

                                   USDA is currently revising its program complaint process. According to the
                                   Director, as of November 20, 1998, departmental regulations describing the
                                   revised program have been cleared for issuance and are awaiting the
                                   Secretary’s signature.20 The revised program complaint process is
                                   expected to go into effect by spring 1999.




                                   19
                                       These include cases that are still open as well as those that have been closed.
                                   20
                                     In its Jan. 20, 1999, comments on our draft report, USDA stated that it is currently revising the
                                   departmental regulation that documents the processing of complaints of discrimination. See app. II for
                                   the complete text of USDA’s comments.



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USDA’s Record for        USDA has been unable to process employment complaints within the
Processing Employment    regulatory time frames. Its record for processing complaints is particularly
Complaints Has Been      troublesome when compared over the years with the average processing
                         times for the rest of the federal government. For example, in fiscal year
Among the Worst in the   1991, USDA’s average processing time for employment complaints was 675
Federal Government       days, over twice the governmentwide average of 341 days.21 In fiscal year
                         1997—the latest period for which governmentwide data are available from
                         EEOC—USDA’s average processing time was 669 days, compared with the
                         governmentwide average of 391 days.

                         Similarly, in fiscal year 1997, USDA took an average of about 1,100 days, or
                         about 3 years, to decide employment cases in which there was no EEOC
                         hearing—over 4 times as long as the 270-day limit and over twice the
                         governmentwide average of 529 days. Furthermore, 98 percent of USDA’s
                         investigations exceeded the 180-day EEOC standard for completing an
                         investigation from the date the complaint was filed, compared with a
                         governmentwide average of 76 percent of cases exceeding the standard.
                         (See table 4.)




                         21
                          Overall processing time is the average time it takes to close cases through dismissal, withdrawal,
                         settlement, or final agency decision with or without an EEOC hearing.



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Table 4: Time Taken by USDA to
Investigate and Close Employment                                                                     Percent of
Complaint Cases Compared With                                                                             cases
Other Federal Agencies, Fiscal Year                                              Number              exceeding                 Average
1997                                                                         of cases in               180 days          days to decide
                                                                      inventory at close                through          a case without
                                      Agency                               of fiscal year         investigationa               hearingb
                                      Veterans Affairs                               2,749                      43                     574
                                      Navyc                                          2,146                      79                     734
                                      Justice                                        2,020                      66                    1,016
                                      Armyc                                          1,882                      48                     313
                                      USDA                                           1,494                      98                    1,101
                                      Treasury                                       1,467                      45                     544
                                                 c
                                      Air Force                                      1,301                      63                     244
                                      Transportation                                   815                      71                     496
                                      Health and Human                                 776                      67                     893
                                      Services
                                      Governmentwide                                34,286                      76                     529
                                      Note: Comparison data are provided for the eight agencies with case inventories closest in size to
                                      USDA’s (four have more cases, and four have fewer).
                                      a
                                       EEOC regulations stipulate that agencies take no more than 180 days to complete an
                                      investigation, including the time the agency takes to decide whether to accept or dismiss the
                                      case.
                                      b
                                       Agencies have 270 days to issue a final agency decision in a case without an EEOC hearing
                                      (180 days to accept/dismiss and investigate, 30 days for the complainant to decide whether to
                                      request an EEOC hearing, and 60 days for the final agency decision).
                                      c
                                      The data for military agencies represent complaints by civil service employees.

                                      Source: GAO’s analysis of EEOC’s data.



                                      In addition to using EEOC’s governmentwide data, we also used USDA’s
                                      employment complaint data from its own database. Our analysis of USDA’s
                                      open employment cases shows that most are exceeding EEOC standards for
                                      processing times. We did not distinguish between new and backlog
                                      employment cases, since they are both processed under the same
                                      EEOC-regulated system and are considered to be part of USDA’s inventory of
                                      open employment cases. New and backlog employment cases are
                                      distinguishable from one another only because they were filed either
                                      before or after November 1, 1997.

                                      Table 5 shows the number of cases in the investigation and final agency
                                      decision stages as of October 1, 1998. Of the cases that have been accepted
                                      and are being investigated, 82 percent (325 cases) had already exceeded



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                                      the 180-day limit, with 405 days being the average time that cases had been
                                      in this stage. Similarly, cases had been in the final agency decision stage22
                                      for an average of 180 days—120 days more than the 60 days required by
                                      EEOC regulations. These are cases still pending in their respective
                                      stages—thus, the final number of days to complete the stages will be
                                      higher than that shown in table 5.

Table 5: Cases in Investigation and
Final Agency Decision Stages of the                                             Average       Number of        Percent of
Employment Complaint Process, as of                                           number of           cases            cases
October 1, 1998                                              Number of       days cases       exceeding        exceeding          EEOC
                                      Processing               cases in       have been           EEOC             EEOC        standard
                                      stage                      stage          in stage       standard         standard     time frame
                                      Investigationa                 397              405             325               82             180
                                      Final agency                   231              180             146               63             60
                                      decisionb
                                      a
                                       Includes the time taken by OCR to accept a case and assign it to an investigator and excludes
                                      cases that are still in the acceptance/dismissal phase.
                                      b
                                       Excludes cases in which the final agency decision is being made after an EEOC hearing.

                                      Source: GAO’s analysis of USDA’s data.




                                      Although USDA has taken a number of actions to strengthen its civil rights
Several Factors                       processes, such as providing additional resources for its program
Hinder Efforts to                     complaint process, several problems are impeding its efforts to process
Improve Timeliness                    complaints more efficiently. First, conditions that caused delays in the
                                      past continue to undermine current efforts—continuing management
                                      turnover and reorganizations in OCR; inadequate staff and management
                                      expertise; a lack of clear, up-to-date guidance and procedures; and poor
                                      working relationships and communication within OCR and between OCR
                                      and other USDA entities. Second, USDA and its agencies are not consistently
                                      using alternative dispute resolution (ADR) techniques with a neutral third
                                      party to address workplace and other disputes. ADR has the potential to
                                      reduce the number of employment complaints, thereby lessening OCR’s
                                      administrative burden and the time required to process these complaints.


Management Turnover and               OCR’smanagement turnover and reorganizations continue to be serious
Reorganizations in OCR                obstacles to improving the management of USDA’s civil rights program.
Continue to Create                    These problems are long-standing. Numerous reorganizations since the
                                      1980s had left USDA’s civil rights programs in a “persistent state of chaos,”
Instability
                                      22
                                          Excludes cases where final agency decision is being made after an EEOC hearing.



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    according to the Civil Rights Action Team’s report, which also noted that
    the turnover of civil rights directors had contributed to the disarray.

    Similarly, management changes in the civil rights office have been
    frequent: Since October 1990, the office has had eight directors; between
    1991 and 1998, six individuals served as Chief of the Program
    Investigations Division; and since January 1993, the Employment
    Complaints Division has had eight chiefs.23 Furthermore, the Department’s
    civil rights program has been reorganized three times since 1993, resulting
    in numerous changes at the division and staff levels. OCR’s latest
    reorganization was expected to be completed by mid-January 1999.

    According to USDA civil rights officials and OIG reports, the instability
    resulting from this ongoing cycle of management turnover and
    reorganizations has affected the quality of OCR’s work and contributed to
    poor morale and low productivity. For example:

•   Previous civil rights directors have had many agendas and different
    priorities, according to the Acting Assistant Secretary for Administration.
    The resulting lack of consistency, she believes, is a major problem
    affecting the quality of OCR’s work. Furthermore, the frequent changes in
    leadership in the Employment Complaints Division have been a major
    cause of the delays in processing employment discrimination complaints.
•   Keeping staff motivated is difficult because of continually changing
    priorities, according to a former Chief of the Employment Complaints
    Division. In addition, a manager from that division said that management
    changes have created an environment in which staff are not held
    accountable for their work.
•   The OIG’s September 1998 report stated that staff who process program
    complaints had expressed concern about the impact of management
    turnover. Staff felt that the turnover resulted in a lack of consistent
    direction and in a changing vision of OCR’s purpose.
•   An EEO counselor said that OCR was unable to finalize and issue policies
    because of the lack of continuity resulting from ongoing reorganizations.

    In addition to these problems, USDA officials said that management and
    staff (particularly those involved in processing program complaints) have
    been intermittently diverted from their day-to-day activities to respond to a
    court order resulting from a lawsuit brought against USDA by minority
    farmers. For example, the OIG reported in September 1998 that, as part of


    23
      These positions have been held in either a permanent or an acting capacity.



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                                the court order, OCR staff had to collect and copy over 5 million pages of
                                county files over a 2-week period in November 1997.


Inadequate Expertise Has        Inadequate staff and management expertise continues to be a significant
Contributed to Processing       obstacle to improving the timely processing of discrimination complaints,
Delays                          according to USDA civil rights officials. The Civil Rights Action Team’s
                                report noted that USDA employees generally viewed the Department’s civil
                                rights offices as a “dumping ground” for many staff who had settled their
                                EEO complaints. The issue of inadequate staff expertise surfaced on many
                                occasions during our review. For example:

                            •   A former OCR director stated that while his priority on becoming director
                                in March 1997 had been to resolve complaints, he soon realized that the
                                office lacked the necessary staff mix and expertise to effectively carry out
                                its functions. He said he ultimately spent much of his time hiring new staff
                                to build up capabilities for processing program complaints, including 14
                                permanent investigators, 14 temporary investigators, and a number of
                                economists, statisticians, and computer specialists. Shortly before leaving
                                USDA in May 1998, he told us that the processing of employment complaints
                                was taking too long and that more training was needed to improve staff
                                efficiency in the Employment Complaints Division.
                            •   Several USDA officials said that low productivity was a problem in the
                                Employment Complaints Division—they attributed this to employees not
                                having adequate training or the right skills to function efficiently. These
                                concerns were reiterated by a former deputy director for employment,
                                who said that low employee productivity, low performance expectations,
                                and inadequate training had contributed to delays in processing
                                employment complaints.
                            •   In September 1998, the OIG reported that staff hired in November 1997 as
                                investigators in the Program Investigations Division were made
                                adjudicators several months later because of bottlenecks in the
                                adjudication process. However, these individuals were not trained in
                                reviewing investigation reports and writing final agency decisions.
                                Furthermore, they had virtually no knowledge of the complexities of USDA
                                programs. As a result, OGC has had to return numerous drafts of final
                                agency decisions prepared by the adjudicators for extensive revisions.

                                The OIG also reported that high-level civil rights officials lacked civil rights
                                experience or expertise. For example, the former OCR director, appointed
                                in March 1997, was experienced in USDA programs but lacked a strong civil
                                rights background. Similarly, OCR’s former deputy director for programs



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                          had an advanced degree in statistics but lacked a background in civil
                          rights.

                          According to the Acting Assistant Secretary, upgrading management and
                          staff resources within OCR is her top priority. She cited inadequate staff
                          expertise as an initial obstacle in resolving the backlog of program
                          complaints and the lack of qualified staff as a significant contributor to
                          delays in processing employment complaints. Furthermore, even though
                          many new staff had recently been hired (particularly in the Program
                          Investigations Division), many individuals still lack the skills needed for
                          their positions. To address this issue, she and the Director of OCR have
                          developed a list of 36 staff members (almost one-third of OCR’s staff) that
                          she described as being inappropriately placed in their current positions.
                          These staff were identified by OCR managers or had requested transfers out
                          of OCR. As of mid-November 1998, OCR was working with USDA’s personnel
                          office to develop procedures for placing these individuals in other
                          positions within USDA. The Director said that all 36 positions will be refilled
                          with qualified individuals.

                          While managers cited a need for additional training to build expertise,
                          funding for training has been scarce. For example, managers in the
                          Employment Complaints Division told us they had no budget for training
                          and that staff had received minimal training in the past 3 years. The chief
                          of that division gave us a detailed list of training that managers and staff
                          felt was needed to improve their skills; however, OCR was unable to fund
                          the training requests. Similarly, for staff in the Program Investigations
                          Division, the OIG reported in September 1998 that training for specific job
                          responsibilities appeared to be lacking.

                          The Director of OCR said that during the summer of 1998, OCR’s Policy and
                          Planning Division provided in-house training on a range of topics related
                          to civil rights. According to the Director, however, the training was
                          inadequate and did not thoroughly address all aspects of the process for
                          handling discrimination complaints. She plans to hire a training
                          coordinator to develop a comprehensive program using outside
                          contractors.


Clear, Up-To-Date         USDA does not have clear, up-to-date guidance and procedures for its
Guidance and Procedures   program or employment complaints. Specifically, USDA has not issued
Are Lacking               departmental regulations, which establish program policy and prescribe
                          procedures, for either type of complaint. In addition, its operations



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                             manuals, which provide more detailed and technical guidance and
                             instructions than do the regulations, do not accurately reflect the existing
                             processes for program and employment complaints.

Program Complaint Guidance   USDA  has not issued departmentwide policies and procedures governing
and Procedures               the receipt, handling, and resolution of program discrimination complaints
                             within established time frames. In USDA, this level of guidance is typically
                             issued as a departmental regulation. In December 1994, the OIG
                             recommended that USDA develop a departmental regulation for the process
                             to handle program discrimination complaints. A revision to an existing
                             regulation on civil rights compliance reviews was drafted to incorporate
                             the processing of program complaints, but it was never made final. In
                             September 1998, the OIG recommended that USDA issue, within 2 months,
                             departmental regulations governing the receipt, processing, and resolution
                             of discrimination complaints or consider an alternate means of hastening
                             the issuance of this guidance. USDA officials stated that they are revising
                             the current program complaint process and that, as of November 20, 1998,
                             departmental regulations for both conducted and assisted programs
                             reflecting the revisions had been cleared for issuance and were awaiting
                             the Secretary’s signature.24

                             USDA’s  operations manuals are intended to provide technical guidance and
                             instructions to civil rights staff. However, OCR has no operations manual
                             for assisted programs, and its operations manual for conducted programs
                             does not accurately reflect the program complaint process as it has been
                             implemented over the past year. For example, the manual says that once
                             OCR receives a complaint, it may give the complainant up to 20 days to
                             supply additional information that will enable it to process the complaint.
                             If the information is not provided within that time, the manual states that
                             OCR is to dismiss the complaint. In practice, however, OCR does not dismiss
                             cases after 20 days if it lacks needed information. Rather, OCR often spends
                             several months obtaining and reviewing the information and then accepts
                             the case. As noted earlier, this time is not counted as part of the 180 days
                             that OCR has to close new cases. In addition, although the manual states
                             that complainants will be given the option of mediation by a neutral third
                             party in order to resolve the complaint, USDA has not established
                             procedures or guidance for using mediation and, as a result, does not
                             routinely offer it. The Director of USDA’s Conflict Prevention and
                             Resolution Center has proposed conducting a pilot test for program
                             complaint mediation; however, the proposal has not been acted upon.

                             24
                               In commenting on our draft report, USDA stated that it is currently revising the departmental
                             regulation that documents the processing of discrimination complaints. See app. II for the complete
                             text of USDA’s comments.



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                          The Director of OCR said that once departmental regulations are issued for
                          the revised program complaint process, the office would revise the
                          operations manual to reflect the new process. However, she could not
                          provide a target date for the issuance of a revised manual.

Employment Complaint      USDA’s process for handling employment discrimination complaints is
Guidance and Procedures   governed by EEOC regulations. However, USDA lacks departmental
                          regulations to implement the EEOC regulations. USDA’s Associate General
                          Counsel for Civil Rights stated that USDA guidance relating to the EEOC
                          regulations had lapsed in 1994 and that several attempts to revise and
                          update the Department’s regulations were started but never completed.
                          The Director of OCR said that, as of November 20, 1998, revised
                          employment complaint regulations had been cleared for issuance and
                          were awaiting the Secretary’s signature.25 These regulations will establish
                          departmental procedures for handling employment complaints that are
                          consistent with current practices and incorporate additional prohibited
                          conduct, such as discrimination on the basis of sexual orientation.26

                          Furthermore, the Employment Complaints Division’s draft operations
                          manual was developed in 1996, before the civil rights functions were
                          reorganized. Thus, parts of the manual do not reflect recent organizational
                          and staff changes. For example, USDA’s regional service centers27 and the
                          dispute resolution boards, both cited in the draft operations manual, no
                          longer exist. In addition, staff responsibilities for the various phases of the
                          employment complaint process have changed, invalidating many of the
                          manual’s standard operating procedures. According to the Director of OCR,
                          there are no immediate plans to update the operations manual.

                          An EEOC official told us that federal agencies should have an operations
                          manual to (1) facilitate compliance with EEOC regulations, (2) standardize
                          processes throughout the agency, and (3) ameliorate the impact of
                          management and staff turnover. A civil rights official in the Department of
                          Transportation told us that her office was able to minimize the impact of
                          management and staff turnover by standardizing its work processes, which
                          are documented in a comprehensive operations procedures manual.




                          25
                           As of Jan. 20, 1999, USDA had not responded to our request for information on whether the
                          departmental regulations had been issued.
                          26
                            Discrimination on the basis of sexual orientation is not prohibited under EEOC regulations.
                          27
                            The centers housed the EEO counselors, who are now located in the agencies’ civil rights offices.



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Inadequate Working        Effective collaboration and communication are important since both the
Relationships and         program and employment complaint processes require the active
Communication             involvement of both the USDA agencies and OGC. However, difficulties in
                          establishing effective working relationships and communication between
Complicate Efforts to     OCR and some USDA agencies, between OCR and OGC, and within OCR have
Process Complaints        hindered efforts to process complaints more efficiently. The Acting
                          Assistant Secretary for Administration said that OCR is working to improve
                          its relations with other USDA organizations. She noted that the rebuilding of
                          relationships was necessary to enhance OCR’s effectiveness and the quality
                          of its work. Problems in working relationships and communication are
                          described below.

Relationships and         OCR’simplementation of the program complaint process is hindered by
Communication With USDA   agencies’ disagreement about their role in the program complaint process
Agencies                  and by inadequate OCR guidance. For example, civil rights officials
                          representing FSA and the Rural Housing Service—the two agencies with
                          the most program complaints—believe that the requirement to provide the
                          agency’s response within 24 days is unrealistic. OCR officials, however,
                          maintain that 24 days is adequate for the limited response that they expect
                          from the agencies. OCR’s guidance on the agencies’ role in the process was
                          issued nearly 2 months after the process took effect, and USDA has not
                          issued departmental regulations on the program complaint process.

                          In addition, agency civil rights officials pointed out that OCR has not
                          adequately consulted and communicated with their offices, particularly
                          during the development of policies and procedures. For example,
                          according to the civil rights director for one agency, to improve civil rights
                          management at USDA, communication between OCR and the agencies
                          should be strengthened and made more systematic. Similarly, four of the
                          eight EEO counselors we interviewed said that improved communication
                          with OCR would enable them to better assist staff who had filed
                          discrimination complaints. Employees who file a formal complaint with
                          OCR often contact the counselor they dealt with during the informal
                          complaint stage for information on the status of their case. The counselors
                          said they have had difficulties in obtaining this information from OCR.

Relationships and         OCR continues to experience difficulties in developing effective working
Communication With OGC    relationships with OGC, which has established a civil rights division headed
                          by an associate general counsel. These difficulties contribute to
                          inefficiencies in processing program complaints. For example, in an
                          April 1998 memo, OCR’s Deputy Director for Programs stated that delays in
                          OGC’s review of draft final agency decisions had created bottlenecks that




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                           hindered the closing of backlog complaints. However, OGC officials said
                           that their reviews have taken longer than anticipated because many draft
                           decisions needed extensive revisions; they estimated that 50 to 90 percent
                           were returned to OCR to be rewritten. The Associate General Counsel for
                           Civil Rights said that improved collaboration between his office and OCR at
                           key points in the program complaint process was needed to improve the
                           timeliness of OCR’s handling of complaints.

                           Regarding employment complaints, a Forest Service civil rights official
                           said that OGC should be more involved in preparing final agency decisions.
                           She also said that having a civil rights attorney dedicated to employment
                           issues and readily available to respond to questions from the agency’s EEO
                           counselors and from OCR staff would be very useful. The Associate General
                           Counsel said that although his office had initially focused on program
                           complaints, it planned to become increasingly involved with employment
                           complaints. At an August 1998 OCR staff meeting, the Acting Assistant
                           Secretary for Administration acknowledged that OCR’s relations with OGC
                           had been strained and reported that officials from these organizations
                           recently met to begin to address their differences.

Relationships and          Inadequate communication within OCR has contributed to low morale and
Communication Within OCR   productivity within the office. For example, according to a 1998 OIG report,
                           many employees in the Program Investigations Division said they were
                           never consulted when decisions were made, and that a lack of
                           consultation resulted in the establishment of timetables that they viewed
                           as unreasonable and unattainable. Lack of communication can be a
                           problem even at the management level. At an August 1998 staff meeting,
                           the Acting Assistant Secretary for administration highlighted the
                           importance of communication and cooperation within OCR. Nonetheless,
                           communication within OCR remains a problem. For example, the OCR
                           reorganization, which was expected to become effective on January 15,
                           1999, created a new management position that was filled in early
                           September 1998. However, as of October 1, 1998, the individual who filled
                           this position still did not know the full extent of his duties and
                           responsibilities.


USDA’s Use of ADR in       USDA is not consistently using ADR techniques to address workplace and
Addressing Workplace and   other disputes. Furthermore, USDA has not used ADR in addressing program
Other Disputes Has Been    complaints, even though its use is called for in OCR’s operations manual.
Sporadic



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ADR uses a variety of dispute resolution techniques that usually involve
intervention or facilitation by a neutral third party. These techniques range
from more formal approaches—such as management review boards and
arbitration, when a neutral party typically rules on the merits of the
disputants’ positions and imposes a solution—to less formal
techniques—such as mediation, when a neutral third party helps craft a
solution to the dispute. When used early in a dispute, before positions
solidify, mediation can resolve workplace disputes before they become
formal complaints, thus helping to reduce complaint-processing
workloads. For example, a 1996 EEOC study concluded that a sizable
number of federal employment discrimination complaints may not involve
discrimination issues at all but basic communication problems for which
mediation may be appropriate.28

Recent laws and regulations have supported the use of ADR in resolving
federal workplace disputes. For example, the Administrative Dispute
Resolution Act of 1990 gave federal agencies the authority to use ADR to
supplement existing methods of resolving disputes. The act required
federal agencies to develop policies for using ADR while providing
maximum agency flexibility on whether and how ADR should be used. The
act’s coverage was broadened with the passage of the 1996 Alternative
Dispute Resolution Act. In 1992, EEOC added provisions to its employment
complaint regulations encouraging the use of ADR in all stages of the
complaint process. And, in February 1998, EEOC issued a proposed rule,
which has not been made final, that will require all agencies to make ADR
available to employees at the informal complaint stage. This rule is
intended to reduce the number of workplace disputes entering into the
formal employment complaint process.

USDA has used several forms of ADR, primarily in the formal stages of the
employment complaint process. In 1994, the Department established
dispute resolution boards to address the growing volume of employment
complaints. The boards, which were discontinued in April 1997, conducted
hearings on about 12 to 15 percent of all employment cases, assessed the
cases, and tried to formally resolve them. A USDA evaluation found that
while the boards helped settle formal complaints, they were flawed. The
evaluation noted that the boards were labor-intensive, were expensive,
and did not address disputes early enough or deal with the underlying
issues of the complaints. Moreover, supervisors said that the boards



28
   ADR Study, U.S. Equal Employment Opportunity Commission, Office of Federal Operations
(Oct. 1996).



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undermined their authority and that a “settle-at-all-costs” policy
encouraged employees to file complaints.

Several USDA agencies have also used mediation to help settle formal
employment complaints. From October 1997 through January 1998, the
Forest Service, in conjunction with the Office of the Assistant Secretary
for Administration, used outside professional mediation to address its
backlog of unresolved employment complaints. About two-thirds of the
backlog was resolved through settlements with complainants. However,
the Forest Service’s report on the initiative noted that many of the
complaints could have been resolved much earlier (or may not have been
filed at all) if managers had done a better job of managing conflict at the
outset. During 1998, the Animal and Plant Health Inspection Service and
FSA also used mediation to settle employment cases.


Recognizing that USDA needed to address workplace disputes before they
escalated into formal complaints, the Secretary issued a memorandum in
May 1996 directing each USDA agency or mission area to develop an
ADR-based conflict resolution program outside of the formal employment
complaint process by November 30, 1996.29 However, as of October 1,
1998, USDA had only five ADR programs. These programs cover (1) all
employees in 6 of USDA’s 17 agencies, (2) employees in two regions of one
agency, and (3) some employees in one Department-level office. The
Assistant Secretary for Administration issued a guide to conflict resolution
programs in October 1996. However, several agencies were waiting for an
official USDA policy statement before they developed their own ADR
programs. On December 21, 1998, the Secretary of Agriculture issued a
conflict management policy. Detailed guidance to agency heads regarding
implementation of the policy is expected to be issued by early
February 1999.

In another effort to expand the use of conflict resolution programs, USDA
established a Conflict Prevention and Resolution Center in March 1998.
The center’s mission is to coordinate USDA’s ADR and conflict prevention
efforts, thereby providing a forum for addressing workplace conflict that
may or may not involve discrimination. The center, however, has not been
fully funded or staffed; current staffing is limited to a director and a
secretary. According to the Director, as of November 25, 1998, he had
received authority to hire one conflict management specialist. In addition,
up to three additional specialists may be hired, depending on funding

29
 Conflict resolution programs are also referred to as conflict prevention or complaint prevention
programs. In this report, we are using the term “conflict resolution” as a catchall term for these
programs.



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              availability in fiscal year 1999. The Conflict Prevention and Resolution
              Center is responsible for leading the Department’s conflict management
              program.

              In addition to using ADR for employment complaints, some federal
              agencies use ADR programs to resolve disputes relating to agency programs
              or activities. As previously discussed, OCR’s operations manual for program
              complaints calls for complainants to be offered mediation early in the
              complaint process. However, USDA officials said that mediation is not being
              offered as part of the new program complaint process and that it would be
              necessary to conduct a mediation pilot before implementing a full-scale
              mediation program. Although USDA officials acknowledge that mediation
              can potentially reduce the number of program-related complaints, little
              progress has been made in developing a mediation pilot program.
              Furthermore, the December 1998 conflict management policy does not
              specify the use of ADR in the program complaint process.


              It has been almost 2 years since the report by the Civil Rights Action Team
Conclusions   called for extensive reforms to USDA’s civil rights program. While USDA has
              made an effort to enhance its program complaint resources, many of the
              problems reported by the action team still hinder efforts to improve
              processing timeliness: Management turnover and reorganizations continue
              unabated; inadequate staff expertise is still a problem; USDA’s civil rights
              guidance and procedures remain inadequate; and poor communication
              between OCR and other USDA entities continues to be a roadblock to
              increased processing efficiency. As a result, USDA continues to exceed the
              EEOC time frames for processing employment complaints and to miss
              important interim time frames in its program complaint process. Clearly,
              USDA’s civil rights program has a long way to go before it will achieve the
              Secretary’s goal of making USDA the civil rights leader in the federal
              government.

              The additional expertise brought to the program complaint process, the
              plans of OCR’s Director to improve training for civil rights employees, and
              the actions under way to replace 36 OCR employees who lack adequate civil
              rights expertise should, if effectively implemented, help enhance staff
              expertise and strengthen OCR’s complaint-processing capabilities. At the
              same time, however, USDA must make a concerted effort to address the
              remaining long-standing problems that have contributed to the processing
              delays. For example, while USDA may not be able to eliminate management
              turnover, the impact of this turnover can be ameliorated by having clear,



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                      B-281466




                      up-to-date guidance and procedures. Such guidance and procedures would
                      promote departmentwide compliance with, and standardization and
                      effective enforcement of, civil rights statutes and EEOC regulations.

                      Similarly, we believe that improved working relationships between OCR
                      and other USDA organizations can be facilitated by implementing processes
                      to ensure appropriate consultation at key points in the development of
                      new policies and processes. Unless OCR officials make a conscientious
                      effort to effectively communicate with these organizations, their roles and
                      responsibilities will not be clearly understood and their compliance will
                      remain problematical.

                      An ADR program can help reduce the number of employment complaints.
                      This program would relieve OCR of some of the burdens imposed by its
                      large caseload and enable it to focus on streamlining its employment
                      complaint process to make it more timely. For this to happen, however,
                      USDA will need to ensure that ADR is effectively implemented
                      departmentwide as a means of informally resolving workplace disputes. In
                      addition, ADR offers the potential for early resolution of program cases—an
                      area in which ADR is not being used.

                      Finally, it is important for OCR managers and staff to keep in mind the
                      importance of their mission. Delays in processing discrimination
                      complaints are unacceptable not only because they result in USDA’s failure
                      to comply with federal regulations and meet internal time frames—more
                      importantly, these delays affect the livelihood and well-being of
                      individuals who believe they have been discriminated against.


                      To improve the timeliness of USDA’s processes for resolving employment
Recommendations       and program discrimination complaints, we recommend that the Secretary
                      of Agriculture direct the Acting Assistant Secretary for Administration to
                      take the following actions:

                  •   Establish target dates and ensure that they are met for (1) issuing
                      departmental regulations for the assisted and conducted program and
                      employment complaints processes and (2) revising the conducted program
                      and employment complaints operations manuals and issuing an operations
                      manual for assisted program complaints so that the manuals accurately
                      reflect departmental regulations. In addition, develop procedures to
                      ensure that departmental regulations and manuals are kept up-to-date to




                      Page 26                   GAO/RCED-99-38 USDA’s Discrimination Complaint Process
                      B-281466




                      reflect subsequent organizational, policy, or procedural changes that can
                      affect the implementation of USDA’s civil rights program.
                  •   Establish target dates and ensure that they are met for having the Director
                      of OCR implement the office’s plans to relocate the OCR employees
                      identified as lacking necessary skills and fill the vacated positions with
                      employees who have appropriate civil rights expertise. Additionally, direct
                      the Director of OCR to assess the training needs of OCR’s employees and
                      implement a program to meet current and future training needs.
                  •   Establish procedures for ensuring more effective consultation and
                      communication by OCR with agency civil rights offices, OGC, and other
                      affected entities, particularly in implementing new processes, policies, and
                      procedures that affect these organizations.
                  •   To facilitate the resolution of program discrimination complaints, develop
                      and implement a program for using alternative dispute resolution early in
                      the program complaint process.


                      We provided a draft of this report to USDA for review and comment. In
Agency Comments       commenting on this report for USDA, the Director of the Office of Civil
                      Rights stated that the record for processing complaints as described in our
                      report was accurate, the management weaknesses we cited were real, and
                      our recommended changes were necessary. In that regard, she noted that
                      USDA was actively moving toward full adoption and implementation of our
                      recommendations. Appendix II contains the complete text of USDA’s
                      comments.


                      We performed our work from December 1997 through January 1999 in
                      accordance with generally accepted government auditing standards.
                      Appendix I contains detailed information on our scope and methodology.

                      We are sending copies of this report to the appropriate congressional
                      committees; interested Members of Congress; the Secretary of Agriculture;
                      the Director, Office of Management and Budget; and other interested
                      parties. We will also make copies available upon request.




                      Page 27                    GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466




If you have any questions about this report, please call me at
(202) 512-5138. Major contributors to this report are listed in appendix III.

Sincerely yours,




Lawrence J. Dyckman
Director, Food and
  Agriculture Issues




Page 28                    GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Page 29   GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Contents



Letter                                                                                                1


Appendix I                                                                                           32
Scope and
Methodology
Appendix II                                                                                          34
Comments From the
U.S. Department of
Agriculture
Appendix III                                                                                         37
Major Contributors to
This Report
Tables                  Table 1: Status of Backlog Program Cases, July 1 and October 1,               9
                         1998
                        Table 2: Stages in the Program Complaint Process and                         11
                         Associated Time Frames
                        Table 3: Timeliness of Agency Responses, as of October 1, 1998               12
                        Table 4: Time Taken by USDA to Investigate and Close                         14
                         Employment Complaint Cases Compared with Other Federal
                         Agencies, Fiscal Year 1997
                        Table 5: Cases in Investigation and Final Agency Decision Stages             15
                         of the Employment Complaint Process, as of October 1, 1998


Figures                 Figure 1: Proposed Reorganization of USDA’s Office of Civil                   5
                          Rights
                        Figure 2: Process and Time Frames for Federal Employment                      8
                          Complaints




                        Page 30                   GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Contents




Abbreviations

ADR        alternative dispute resolution
EEO        Equal Employment Opportunity
EEOC       Equal Employment Opportunity Commission
FSA        Farm Service Agency
OCR        Office of Civil Rights
OGC        Office of General Counsel
OIG        Office of Inspector General
USDA       U.S. Department of Agriculture


Page 31                 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix I

Scope and Methodology


             To gain an understanding of the history of and current environment for
             civil rights at the U.S. Department of Agriculture (USDA), we reviewed the
             February 1997 Civil Rights Action Team’s report and two subsequent
             reports on the implementation of the 92 recommendations in the February
             report. We also met with staff from USDA’s Office of Inspector General
             (OIG) and reviewed OIG reports that dealt with USDA’s efforts to reduce the
             program complaints backlog and to improve the overall system for
             processing program complaints.

             In conducting our work, we focused on USDA’s Office of Civil Rights (OCR)
             and the three USDA agencies that have the greatest number of
             discrimination complaints—the Farm Service Agency (FSA) and the Rural
             Housing Service, which together account for about 80 percent of the
             program complaints, and the Forest Service, which accounts for about
             21 percent of employment complaints.

             To determine the timeliness of USDA’s processing of program and
             employment complaints, we reviewed Equal Employment Opportunity
             Commission (EEOC) regulations, laws and regulations concerning
             discrimination in USDA’s conducted and assisted programs, and OCR’s
             operations manuals for processing conducted program complaints and
             employment complaints. Furthermore, we analyzed reports from OCR’s
             database dealing with the timeliness of program and employment
             complaints. Specifically, we examined the time frames for processing
             backlog and new program and employment cases. Regarding employment
             complaints, we also obtained statistical data from EEOC to compare USDA’s
             timeliness in processing employment cases with that of other federal
             agencies. We did not verify the accuracy of OCR’s or EEOC’s data. The OIG
             reported in September 1998 that OCR’s database for tracking program
             complaints was incomplete and contained errors. However, we used the
             database for our analysis since it contains the only information available
             on USDA’s processing times for program complaints.

             To determine the reasons for delays in the processing of program and
             employment complaints, we interviewed USDA officials, including the
             Acting Assistant Secretary for Administration; the Special Assistant to the
             Secretary for Civil Rights; OCR’s past and current directors and a number of
             managers and staff in that office; the Associate General Counsel for Civil
             Rights; the civil rights directors for FSA, Rural Development (which
             encompasses Rural Housing Service as well as several other agencies),
             and the Forest Service; and the Chief, Conflict Prevention and Resolution
             Center. We also interviewed officials at EEOC and the Federal Mediation



             Page 32                    GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix I
Scope and Methodology




and Conciliation Service, the federal agency that has a leadership role in
alternative dispute resolution. We also analyzed reports from OCR’s
database to determine where bottlenecks were occurring in processing
complaints.

In addition, regarding program complaints, we (1) met with a Department
of Education official to discuss the system the Department used to process
program complaints (USDA officials told us that Education had streamlined
its program complaint processes), (2) interviewed FSA staff in
Montgomery, Alabama, who conduct the field work needed to prepare
FSA’s response to program discrimination complaints; and (3) interviewed
Rural Development mission area staff in Alabama and Georgia, who
conduct the field work needed to prepare the Rural Housing Service’s
response to program discrimination complaints in those states.

Regarding employment complaints, we conducted a telephone survey of
eight Equal Employment Opportunity (EEO) counselors to discuss the
informal employment complaint process and to gain their perspective on
OCR. We randomly selected the counselors from the 23 EEO counselors in
FSA, Rural Development, and the Forest Service. (USDA has 44 counselors
departmentwide.) We also met with Department of Transportation staff to
discuss how they achieved increased efficiencies in their system for
processing employment complaints. Regarding the use of alternative
dispute resolution, we interviewed the Chief of USDA’s Conflict Prevention
and Resolution Center and the program managers for alternative dispute
resolution at several USDA agencies to discuss the benefits of this
approach.

We performed our review from December 1997 through January 1999 in
accordance with generally accepted government auditing standards.




Page 33                    GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix II

Comments From the U.S. Department of
Agriculture




              Page 34   GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix II
Comments From the U.S. Department of
Agriculture




Page 35                      GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix II
Comments From the U.S. Department of
Agriculture




Page 36                      GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix III

Major Contributors to This Report


                        Jerilynn B. Hoy, Assistant Director
Resources,              Rosellen McCarthy, Evaluator-in-Charge
Community, and          Roberto R. Pinero
Economic                Brian Frasier
Development Division
                        Anthony P. Lofaro
General Government
Division
                        Susan Poling, Associate General Counsel
Office of the General   Alan R. Kasdan, Assistant General Counsel
Counsel                 Oliver H. Easterwood, Senior Attorney




(150740)                Page 37                  GAO/RCED-99-38 USDA’s Discrimination Complaint Process
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