The Board Can Enhance Its Diversity and Inclusion Efforts

Employee Complaints

Employees can raise grievances through the EEO and non-EEO processes. The Board has a defined EEO complaint process for applicants and Board employees who believe that they have been a victim of discrimination. The non-EEO process includes providing opportunities for employees to file and resolve grievances related to unfavorable performance ratings, unfair treatment, harassment, relationships with coworkers, and disciplinary actions.

This section provides a summary of the Board's processes and statistics related to EEO and non-EEO case data. We noted an opportunity for the Board to better communicate non-EEO case statistics to all divisions.

Related Laws and Regulations

Although not required by law, the Board follows several laws and regulations related to the EEOC and the processing of EEO complaints. In particular, the Board follows the requirements of the MD-715, which provides guidance and standards for establishing and maintaining effective EEO programs that ensure that all employees have equal opportunity without regard to race/ethnicity, color, religion, national origin, age, sex, or disability.⁴⁹

The Board has also adopted, as part of its employment rules, EEO laws that prohibit discrimination, including the provisions of the No FEAR Act that require the Board to report and provide training on compliance with EEO laws and to post on its public website on a quarterly basis certain summary statistical data relating to EEO complaints.

The Board's Process for EEO Complaints

The Board's Equal Employment Opportunity Policy, revised May 13, 2013, provides for equal opportunity in employment for all persons and applies to, among other human resources–related functions, the EEO complaint process. The Board prohibits discrimination in employment on the basis of race/ethnicity, color, religion, sex, national origin, age, disability, or genetic information, and promotes the full realization of EEO through a continuing affirmative program. The Board also prohibits discrimination on the basis of any application, membership, or service in the uniformed services. In addition, as a matter of policy and although it is not required by law, the Board prohibits discrimination in employment on the basis of sexual orientation. An applicant or Board employee who believes that he or she has been discriminated against should consult with the OD&I within 45 days of becoming aware of the alleged discriminatory act or personnel action.

Informal EEO Complaints

The informal process begins when an EEO counselor is assigned to conduct an initial counseling session with the complainant to obtain information about the alleged complaint. The EEO counselor then has 30 calendar days to make inquiries, attempt to resolve the matter, and advise the employee on the process to file a formal complaint. On a case-by-case basis, the EEO counselor may offer the complainant the right to engage in the alternative dispute resolution process. If counseling sessions or the alternative dispute resolution process cannot resolve the matter, or if a complaint in mediation is not resolved by the 90th day, the EEO counselor will issue a written notice to the complainant stating that it is the complainant's right to file a formal complaint within 15 days of receipt of the notice.

Formal EEO Complaints

If a formal complaint is filed, an EEO counselor will review the complaint and determine the issues that will be accepted for investigation. During the investigation stage, an independent investigator will be contracted to investigate the issues accepted in the complaint. At the close of the investigation, the OD&I will provide the complainant with an investigative report. On receipt of the investigative report, the complainant has 30 days to take one of the following courses of action:

• Request from the OD&I a final Board decision without a hearing; the Board has 60 calendar days to render a decision.
• Request a hearing and decision from an EEOC Administrative Judge, followed by a final decision by the Board.⁵⁰

If a complainant does not agree with the final decision that has been rendered by the Board, the complainant may take the following courses of action:

• Appeal to the EEOC upon the Board's dismissal of, or its final decision on, a formal complaint within 30 calendar days of receipt of the Board's dismissal or final decision.
• File a civil action in U.S. district court within 90 calendar days of the Board's final decision or the EEOC's decision on appeal.
• If 180 days have elapsed since the filing of the formal complaint, request a hearing from an EEOC Administrative Judge.
• If 180 days have elapsed since the filing of the formal complaint or since the filing of an appeal with the EEOC, file a civil action in U.S. district court.

Statistics

Informal EEO Complaints

From FY 2011 through FY 2013, the OD&I conducted 166 counseling sessions.⁵¹ A counseling session is a conversation between an EEO staff member and a complainant. The number of counseling sessions for FY 2011–FY 2013 remained relatively steady. Specifically, there were 58 counseling sessions in FY 2011 and 54 counseling sessions each year in FY 2012 and FY 2013.⁵²

Formal EEO Complaints

Overall, the total number of new formal EEO complaints was 8 in FY 2011, 11 in FY 2012, and 2 in FY 2013.⁵³ Of the 21 new complaints filed during FY 2011–FY 2013, the most common EEO issues were as follows:

• Retaliation. Federal law prohibits the removal, demotion, harassment, or otherwise retaliatory activity against employees because they filed a charge of discrimination or because they complained to their employer about discrimination on the job.
• Hostile work environment/harassment. Hostile work environment or harassment is created by unwelcome conduct that is based on race, color, religion, sex, national origin, age, disability, or genetic information.⁵⁴
• Disparate treatment. This prohibited treatment is apparent when an individual of a protected group is shown to have been singled out and treated less favorably than others who are similarly situated based on race, color, religion, sex, national origin, age, disability, or genetic information.

A complainant may file multiple issues in a single complaint.

EEO Processing Time

The Board reports EEO complaint processing times as part of its No FEAR Act reporting. Investigations must be completed within 270 days, including extension, of the filing date of an individual complaint.⁵⁵ We noted that during FY 2011–FY 2013, the average number of days complaints were in the investigation stage rose sharply in FY 2013; however, the Board's average remained below the 270-day requirement. In addition, the average number of days that complaints were in the final action stage rose in FY 2012 and then declined in FY 2013 (table 7).⁵⁶

Table 7: EEO Complaint Processing Times, FY 2011–FY 2013^a

Complaint phase	Average number of days, FY 2011	Average number of days, FY 2012	Average number of days, FY 2013
Investigation	151	133	228
Final action	36	53	26

Source: The Board's No FEAR Act Report, September 18, 2014.

^aComplaint processing times include data from all EEO complaints filed during FY 2011–FY 2013, including EEO complaints filed by the OIG. Return to table

The Board's Process for Non-EEO Matters

The Board's non-EEO process is initiated when a Board employee or an employee's supervisor contacts ER for advice or guidance. ER categorizes non-EEO matters into 21 categories that include performance, leave, attendance, or other workplace issues (such as perceived unfair or unprofessional treatment, concerns about promotions, or relationships with coworkers), and disciplinary actions.⁵⁷

ER will provide one or more counseling sessions to help resolve a non-EEO issue. At any time during this counseling process, a Board employee or supervisor can choose to file a non-EEO case, which requires ER to take action aside from counseling, such as mediation. When this occurs, ER documents the action as a non-EEO case. Cases include employee complaints and adverse actions taken by the Board against an employee.

ER recorded 711 active non-EEO cases during 2011–2013, excluding the OIG. The majority of the cases were concentrated in four categories related to performance, work, leave, and disciplinary actions, which are defined as follows:

• Performance issues include matters related to an employee's performance under the Board's performance management system.
• Work issues include employee complaints or questions regarding unfair treatment on the basis of conduct or reasons that do not adversely affect the employee's performance and that are not covered under existing laws regarding discrimination.
• Leave issues include an employee's failing to follow leave procedures, being tardy, and making false statements related to a leave request. Other leave complaints may include leave administration matters such as Family and Medical Leave Act requests.
• Disciplinary actions document oral counseling, a written warning, or a suspension of 14 calendar days or less. Disciplinary actions only address conduct-related problems and provide for disciplinary measures that are less severe than those outlined in the Board's Adverse Action Policy and associated procedures.

In general, ER works to resolve all non-EEO matters informally through counseling sessions or formally as a case between the employee and management within four to six weeks. Resolution time frames vary, however, based on the type of case.

The Board maintains non-EEO case data on a calendar-year basis. Overall, we noted that the number of active non-EEO cases as of year-end 2011, 2012, and 2013 were 232, 229, and 250, respectively.⁵⁸ We found that in 2011, the average processing time was 147 days; in 2012, 153 days; and in 2013, 155 days. In general, resolution time frames vary based on the type of case.

Finding: Non-EEO Case Statistics Were Not Provided to Divisions on a Regular Basis

We found that during 2011–2013, ER provided non-EEO case statistics to Board divisions only on request. According to ER, if it detected a pattern of non-EEO cases (i.e., three or more) in a specific division, it would typically address the issue by offering counseling or training to division officials to prevent future occurrences. We also noted that the HR division compiled aggregate statistics in an internal report each year; however, only the report containing 2013 data was distributed to the divisions in May 2014.⁵⁹

One of ER's objectives is to identify emerging employee relations issues and trends that may affect employee morale and notify management of such issues in advance of any impact. ER's practice is to collect non-EEO case data, conduct trend analysis, and submit this information to Management Division officials and to divisions that specifically request this information. While we acknowledge that ER collected this information, this information was not disseminated to all Board divisions. Further, according to a Board official, there was no systematic process in place to distribute the annual HR report that contained aggregate non-EEO statistics to all divisions in the Board in 2011 and 2012.

Disclosure of non-EEO case statistics to all Board divisions will help the divisions to identify barriers and other issues related to harassment, unfair treatment, relationships with coworkers, disciplinary action, and unfavorable performance ratings that may relate to diversity and inclusion. In addition, sharing information with division officials may assist them in identifying any patterns. Communicating non-EEO case data to all divisions can help to mitigate similar occurrences and assist in developing improvement strategies.

Management Actions

ER provided Division Directors with a more detailed non-EEO trend statistics report in October 2014 with the intent of obtaining their feedback and suggestions for an ongoing information exchange. This was the first detailed report to be distributed to all Division Directors. ER intends to distribute non-EEO trend statistics on at least a quarterly basis.

Recommendation

We recommend that the Chief Human Capital Officer

4. Ensure that aggregate non-EEO case statistics are provided to all Division Directors and that division-specific statistics are provided to the respective Division Director.

Management's Response

The Board concurs with our recommendation. In its response, the Board notes that management began providing Division Directors with non-EEO trend statistics and plans to continue this practice on a quarterly basis.

OIG Comment

The actions described by the Board are responsive to our recommendation. We plan to follow up on the Board's actions to ensure that the recommendation is fully addressed.

49. These programs are under of title VII, section 717, of the Civil Rights Act of 1964 and section 501 of the Rehabilitation Act of 1973. Return to text
50. Employees who request a hearing before an EEOC Administrative Judge must notify the OD&I. The EEOC will appoint an EEOC Administrative Judge to hold the hearing. The Administrative Judge will make findings of fact and conclusions of law and will issue a decision. The Board will have 40 calendar days from the date it receives the Administrative Judge's decision to issue a final order informing the complainant of whether it will implement the decision. If the Board does not implement the Administrative Judge's decision, the complainant can file an appeal with the EEOC simultaneously with the issuance of the Board's final order. Return to text
51. The Board operates on a calendar-year basis; however, EEOC reporting requirements are based on a fiscal-year basis. Therefore, the OD&I reports counseling session data and EEO cases filed on a fiscal-year basis. Counseling sessions are counted, but to preserve anonymity, complainant identification data are not collected. As a result, the counseling session counts may include OIG personnel who are otherwise excluded from the data in this report. Return to text
52. Complainants may receive multiple counseling sessions; therefore, the number of counseling sessions per fiscal year may be greater than the number of complainants who sought counseling. Return to text
53. The OIG was excluded from this audit; therefore, we excluded OIG complaints. During this period, we noted that for the 21 complaints filed, there were 21 complainants. Return to text
54. Harassment becomes unlawful when (1) enduring the offensive conduct becomes a condition of continued employment or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Return to text
55. This requirement derives from Management Directive 110, which provides federal agencies with EEOC policies, procedures, and guidance relating to the processing of employment discrimination complaints governed by the EEOC's regulations in title 29, part 1614, of the Code of Federal Regulations. Return to text
56. When an Administrative Law Judge renders a decision, final action is required within 40 days of receipt of the hearing file and the Administrative Law Judge's decision. The Board's Rules Regarding Equal Opportunity delineates time frames for other circumstances and particular complaints. Return to text
57. For purposes of this report, performance issues include performance, performance management, and performance improvement. Categories that garnered fewer complaints include adverse action, disability, fit for duty, garnishment, harassment, Americans with Disabilities Act, selection, suitability, and other/miscellaneous. Return to text
58. Formal non-EEO cases are tracked in a centralized database by ER; one employee may have more than one formal case. Return to text
59. The Management Division publishes an annual internal HR operations report. This report includes the number of new hires, employee benefits, separations, and employee exit interview data, among other types of information. Return to text