USDA COALITION OF MINORITY EMPLOYEES

I. Employment Complaint Processing

The USDA Civil Rights Action Team (CRAT) Report of February 1997, and USDA Coalition of Minority Employees, “Report on the State of Civil Rights at USDA, September 2000”, documented the many chronic problems the USDA, Office of Civil Rights (OCR) has in processing employment complaints. The USDA, Office of Inspector General (OIG) has also identified a long list of chronic problems in OCR, which have been chronicled in several OIG reports written during the last 10 years. About 18 months ago, the General Accounting Office (GAO) also reported on the systemic failures of OCR. And closer to home, Senator Fred Thompson just issued a report, “Government at the Brink, Volumes I, II, June 2001,” that also addresses OCR problems.

Despite these internal and external reviews and analyses with their detailed lists of problems and suggested corrections, massive problems remain and little if anything has changed. In fact, according to OCR figures, the number of pending employment complaints continues to grow. Allegations by the OCR that there is a decrease in the number of Equal Employment Opportunity (EEO) complaints filed, knowing the poor accounting (reporting) and tracking systems at the agency and department levels, contradicts our reality. The average time it takes to process complaints continues to be protracted. All areas of complaint processing, from formal complaint intake, review of the formal complaint, investigations, and preparation of final agency decisions, take more time today than two years ago. OCR continues to violate EEOC regulations, not investigating employee formal complaints within the required 180 days.

a. Senior management in OCR is changed with the frequency of the seasons. The reason for this, it seems, is to maintain control of the politically sensitive OCR and its unhappy staff; through safe appointments of senior managers whose mission is to control OCR staff, rather than getting the best managers available. USDA and agency administrators are not willing to address critical reports and findings of managerial malfeasance and discrimination that come out of the employment complaint process. The result is OCR middle managers and staff that are subject to senior management controls and discipline. This has certainly been the standard over the past two years. The senior management in OCR is suspicious of productive middle managers, evidence and measured by the number of managers whom have departed. There does not seem to be a premium on productive staff, who know the Federal rules of complaint processing and who see complaint processing as the mission of OCR. In the past two years, highly productive middle managers have been forced out and replaced with individuals who have minimal understanding of complaint processing.

As reported by the Office of the Inspector General, “…it is doubtful that complainants’ cases receive due care.” That costly failure by the USDA is intolerable to employees and customers. This raises the specter of a failure in due process, which contributes to the massive number of repeat complaints. It creates a never-ending cycle of conflict and adversarial behavior.

I recommend that committed and proven senior and middle managers be brought into the OCR to expeditiously administer the processing of employment complaints in accordance with the straightforward requirements of 29 CFR 1614. Remove OCR top managers for allowing continual failures of civil rights processing and administration in USDA.

b. Staffing of the OCR, Employment Complaints Processing Unit, in relation to comparable units in the Departments of Treasury and Army, is obviously, severely lacking. USDA, OCR, conducted benchmark studies on complaint processing, using the Treasury and Army EEO complaints processing programs. Treasury and Army have caseloads comparable to USDA. In these comparisons, USDA's OCR was shown to have about 1/5 the staff of Treasury and Army, with essentially the same caseload. I would say that the last three generations (5 years) of USDA OCR senior managers, including the Assistant Secretaries for Administration, who were aware of these staffing shortages, misused Congressional appropriated funds targeted toward civil rights staffing (ignored and condoned by the present OCR management and previous administration). Despite countless reorganizations and reviews, nothing has been done to correct the problem. Just when we thought it could not get worse, it has done so over the last 18 months. Nearly 20 civil rights staff members have sought employment elsewhere. Only a handful of replacements have been made. This results from the political stamp that has been placed on the OCR, and a failure to address the mission of the OCR and the responsibility of USDA to properly and fully administer the employment complaints process, in accordance with 29 CFR 1614 and the 1964 Federal Civil Rights Act.

I recommend that staff knowledgeable of Federal case processing requirements be recruited and hired for the OCR. As part of this, I recommend the practices of the Departments of Army and Treasury of employing investigators for conducting investigations on all employment complaints.

II. Employment Class Actions

As of January 17, 2001, the USDA was responding to six class action employment complaints pending before the Equal Employment Opportunity Commission (EEOC). There are others on appeal before EEOC's Office of Federal Operations. And there are new class action complaints coming into existence. USDA senior management sees the employment complaint process as an adversarial interaction with complainants, whom, let us not forget, are employees of USDA. Rather than reviewing the complaint for substance in its allegations, USDA managers prefer to fight the complainant to the finish. The toll on the workplace is enormous, being drawn out over years while the complaint is delayed, lost, or otherwise held up in the malfunctioning OCR. While USDA senior management has not seen fit to make the suggested changes in employment case processing, it has also failed to review its organizational culture and human resource management practices. The number of class actions and individual complaints are growth sectors in USDA. All the OIG, GAO, CRAT, and Congressional reports, critical of the USDA civil rights employment program, have had no discernible impact on OCR. Reports and initiatives come and go, along with press reports and congressional hearings. However, USDA civil rights remains unchanged, oppressive and dysfunctional.

In the area of class action complaints, some of which have been going on for years, the USDA (OGC) position remains adversarial, constructing barriers to prevent resolutions. What is lacking here is the desire on the part of USDA to identify problems, to respect employees, and to move forward together in a good faith collaboration to improve the hostile working environment. USDA claims to have settled a couple of class action complaints. The USDA impulse is to protect discriminating managers. Trust and good will are missing. USDA retards class and individual complaints through a drawn out process of structured delays, which is controlled by USDA and administered by the Assistant Secretary for Administration. These structured delays, long ago identified, constitute systemic discrimination against USDA employees who have filed EEO complaints. All the class action complaints could be settled tomorrow, if only USDA senior management, OCR, and the Office of General Counsel (OGC) were to become willing and good faith partners to such efforts. This does not happen, however, simply because USDA (senior agency administrators, OCR, and OGC) do not negotiate with complainants, whom are viewed as adversaries. If the USDA were anxious to address class cases, they would find suitable negotiating positions for each of the cases. As it is, these cases are allowed to linger through the indefinite and time-consuming regions of the EEOC Office of Federal Operations.

It is the opinion of OCR and OGC that class actions are not to be addressed until "certified," ignoring the fact that American tax dollars and resources are being used to sustain these classes. Therefore, the number of USDA class actions are not accurately reported by the Department. The performance of past and current leaders in the OGC and OCR appear to be, at a minimum, deliberate indifference with an objective to evade the true intents of civil rights laws and regulations and, with deliberate intents to mislead and deceive - - all of which cost millions of dollars while oppressing and suppressing the rights of employees and customers of the Department.

I recommend that negotiating teams that are aware of the law be established for each of the class action complaints, and that negotiations commence on the principle that employees with complaints are not adversaries but partners and colleagues who are deserving of a workplace that is congenial and free from all forms of discrimination, hostile work environments, reprisals, and other abuses.

c. Employment Complaint Training, Oversight, and Discipline

Over the years, OCR efforts at providing training, guidance, and oversight for USDA agencies have dwindled to virtual nonexistence. As a result, agencies are left without a coherent forum for developing their own civil rights policies, manager and staff guidance, training, development of affirmative action plans, establishing goals and program oversight, improving human resource management, and avoiding civil rights employment complaints. Communication between the USDA Office of Administration, OCR and other agencies needs to be improved. USDA mission areas are responsible for administering equal employment opportunity and Federal laws prohibiting discrimination.

I recommend that the OCR resurrect program capabilities to provide guidance, training, and oversight to USDA agencies. Few disciplinary actions have been taken against discriminatory officials, whom have been found guilty of discriminating and reprising against employees and farmers. In USDA, civil rights discrimination in employment is not a "zero tolerance" environment. For most managers it is a matter of ‘forgive and forget’. In most EEO complaints where there is clear agency vulnerability, the cases usually do not ever become "formal" complaints, because they are flagged and "settled." Settlement means that a finding of discrimination is avoided in exchange for the complainant receiving money or an otherwise positive change in terms of employment. In some of these cases, the sum of money provided by the agency is sometimes very large, reflecting significant agency vulnerability. In any event, there is no way to determine if the "at fault" manager was disciplined. Here again, the questions of fault and therefore of discipline are avoided.

I recommend that all settlement agreements be inspected and reviewed to determine if payments are illegal in some way, and to determine fault of the responding official, in order to be able to apply the appropriate discipline. The effort here is to stop the agency from paying off complainants in the process of protecting managers.

d. USDA Leadership of the Office of Civil Rights

The single most critical weakness for civil rights enforcement and change in USDA is the location of the OCR within the Office of the Assistant Secretary for Administration. The Assistant Secretary for Administration oversees the USDA Human Resources Management program, the USDA Employee Relations program, and a wide variety of management and administrative activities, most of which are of a routine and pedestrian nature. While there are technical challenges attached to the program areas within the Office of Administration, none present the requirements for change, moral leadership, oversight, and discipline of management and employees that are associated with civil rights responsibilities.

The Assistant Secretary for Administration acts as a resource and partner to USDA Agency administrators who are faced with technical questions on the availability and use of administrative resources, such as space, communication, human resources, and the daily requirements for operating an agency. The previous Assistant Secretary for Administration was not a leader of change, and did not carry the stature of a moral leader who provides to Agency Administrators guidance, oversight, and discipline in addressing the unacceptable realities of discrimination and harassment in the USDA workplace. The regulations governing Equal Employment Opportunity in the Federal work place, 29 Code of Federal Regulations 1614, clearly states that the Civil Rights Officer for the Agency must report to the Secretary. The reasoning behind this Federal Regulation is that moral leadership of the highest order is required for successful management of the civil rights program. Moral leadership and pre-eminent management authority for purposes of leadership and discipline can only reside with the senior officer in the Department, and that person is the Secretary.

The Assistant Secretary for Administration, as long as he or she is responsible for the USDA human resources program and civil rights, as long as he or she is both a partner and facilitator to Agency Administrators on logistical matters and a leader and disciplinarian on civil rights matters, as long as he or she is on the one hand maintaining the status quo on certain agency administrative matters and calling for change on civil rights leadership and enforcement, is faced with irreversible conflict of interest. Historically, in the USDA, the civil rights of employees and customers have paid the price for this conflict of interest. And still to this date, Human Resources (Forest Service and Farm Service Agency), are still illegally involved in the processing of formal civil rights complaints - - in violation of EEOC MD-110. Newspaper analyses over the years have chronicled these problems, as have the White House and various Senate and House Committees.

By maintaining the civil rights program responsibility within the Office of the Assistant Secretary for Administration, the USDA leadership have guaranteed the subordination of the civil rights of employees and customers to the internal political currents within the Agencies, thereby avoiding the application of Federal law and regulations as they pertain to the civil rights of employees and customers. Maintaining the present civil rights structure (civil rights responsibility within the Office of the Assistant Secretary for Administration) is a conflict of interest. This is a matter of public record.

I recommend that the Office of Civil Rights be elevated to the level of Assistant Secretary or a General Counsel for Civil Rights and that the person be required to report directly to the Secretary, consistent with 29CFR 1614. In this way, the Secretary will provide the power of direct leadership for the change, oversight, and discipline so needed within the USDA.

The Forest Service and OGC are withholding release of the report authored by Ms. Virginia George. This report documents the hostile and intimidating treatment of Hispanics in the Southwest region of the United States. The Department’s action is similar to the withholding release of the infamous “D.J. Miller “ report that uncovered documented discrimination against Black farmers and women farmers by USDA.

I recommend USDA immediately release this report and other recent investigative reports of civil rights administration and processing, local and national.