CFPB Report: 2015-MO-C-002 March 4, 2015
The CFPB has policies and procedures for each of its employee complaint processes, namely, EEO complaints, administrative grievances, and negotiated grievances. These processes give employees the opportunity to have their complaints heard, investigated, and redressed in a fair and equitable manner.
This section provides a summary of the applicable laws and regulations; the CFPB's processes; and demographic statistics for EEO and non-EEO complaints. Further, we summarize data quality problems that we found in the spreadsheets that the CFPB uses to track EEO complaints and negotiated grievances. In addition, prior to November 2014, the CFPB did not have a formal process to prevent duplicate filing of EEO and negotiated grievance complaints.
The CFPB adheres to several laws and regulations related to its OEEO and the processing of EEO complaints. In particular, title 29, part 1614, of the Code of Federal Regulations sets forth the responsibilities and guidelines for establishing and maintaining an EEO program in the federal government. These regulations implement the following:51
In addition, the Civil Service Reform Act of 1978 and the No FEAR Act are applicable to the CFPB. The Civil Service Reform Act of 1978 prohibits federal agencies from discriminating on the basis of race, color, religion, sex, national origin, age, disability, marital status, political affiliation, whistleblowing, and other nonmerit factors.55 The No FEAR Act requires agencies to post quarterly on their public website certain summary statistical data relating to EEO complaints filed against them under title 29, part 1614, of the Code of Federal Regulations and notify current and former employees and applicants for federal employment of their rights and protection against discrimination, retaliation, and whistleblower actions.56
According to a CFPB Legal official, most federal agencies employ administrative grievance procedures for non-bargaining-unit employees pursuant to the requirements of title 5, part 771, of the Code of Federal Regulations. A CFPB Legal official explained that the Dodd-Frank Act granted the CFPB broad authority to "establish the general policies of the Bureau with respect to all executive and administrative functions, including the establishment of rules for conducting the general business of the CFPB, in a manner not inconsistent with the law." The CFPB considers its Open Door and Administrative Grievance Policy to be consistent with the above provisions of the Dodd-Frank Act.
The CFPB's negotiated grievance procedure follows title 5, section 7121, of the United States Code, and the applicable regulation. Specifically, this law establishes how management and the union address and resolve grievances identified by employees covered by the bargaining unit.
If a current employee, former employee, or applicant (i.e., an aggrieved person) believes that he or she has been (1) discriminated against on the basis of race, color, religion, sex, national origin, disability, age, genetic information, sexual orientation, or parental status or (2) retaliated against for prior EEO activity, he or she may raise such complaint with the OEEO. The complaint begins in the informal process and may enter the formal process under certain circumstances. The OEEO's processes and policies emphasize maintaining confidentiality throughout the EEO complaint process.
An aggrieved person generally has 45 calendar days following an alleged discriminatory incident or, in the case of a personnel action, within 45 days of the effective date of the action, to contact the OEEO. An EEO specialist speaks with the aggrieved person to discuss the incident, explain the EEO process, and complete the CFPB EEO Intake Form. Next, the OEEO contacts the CFPB's procurement office to contract for EEO counselor services. The EEO counselor explains the aggrieved person's EEO rights and responsibilities. If the aggrieved person is an employee or former employee, the EEO counselor generally offers him or her a choice of EEO counseling or alternative dispute resolution (ADR).57 If the aggrieved person selects counseling, the EEO counselor gathers information regarding the claims, addresses jurisdictional questions, responds to the aggrieved person's requested remedy, and issues a counselor's report. If ADR is selected, the OEEO contacts the CFPB's procurement office to obtain a contracted mediator. If the incident is not resolved through counseling or ADR, OEEO's policy is to instruct the aggrieved person on how to file a formal EEO complaint and notify him or her that he or she has 15 calendar days to file the complaint.
The agency reviews the formal EEO complaint and determines whether the case should be dismissed for a procedural reason, such as the complaint not meeting the required time limits for notifying OEEO. If the agency accepts the complaint, the OEEO contacts the CFPB's procurement office to obtain EEO investigation services. After the investigation is completed and the results communicated, the aggrieved person can request a final decision from the agency or request a hearing from an EEOC Administrative Judge. If the aggrieved person disagrees with the outcome, he or she can appeal to the EEOC. In general, an aggrieved person must go through the above informal and formal processes before filing a lawsuit.58
If a CFPB employee has a complaint pertaining to issues including, but not limited to, harassment, unfair treatment, or performance, he or she may file one of two types of grievances, administrative or negotiated, depending on whether he or she is covered by the bargaining unit.
The CFPB did not have a policy in place for employees to submit non-EEO complaints until September 2012. In September 2012, the CFPB issued its Open Door and Administrative Grievance Policy that outlines procedures to review employees' employment-related concerns. From September 2012 to June 2013, the policy covered all employees. The CFPB's Open Door and Administrative Grievance Policy became applicable to only non-bargaining-unit employees after the NTEU began representing bargaining-unit employees in June 2013.
The CFPB's administrative grievance process applies to employees who are not covered by the bargaining unit. Before an employee files a formal grievance, the employee is encouraged to informally resolve concerns with the management officials who are believed to be responsible for the issue under grievance. Another option is for the employee to informally present concerns to the OHC's Employee and Labor Relations group. OHC officials will work with the appropriate management officials to resolve issues.
If an employee's concerns are not resolved informally, OHC officials are required to offer the employee an opportunity to engage in ADR through the involvement of a contractor. Participation in the ADR program is voluntary; once ADR proceedings have begun, parties may voluntarily opt out of an ADR proceeding at any point prior to resolution for any reason. If the parties reach an agreement, however, they may settle, provided the proposed agreement is lawful and enforceable.
The employee can initiate a formal grievance if he or she rejects ADR or fails to respond to the offer of ADR, or if the ADR process is terminated. The formal grievance process begins with an employee filing a formal complaint with Employee and Labor Relations, which is considered a step 1 grievance. The step 1 grievance includes the reason for the grievance and specific circumstances, as well as the requested remedy. A second-level management official will render a decision to Employee and Labor Relations, granting or denying the requested remedy. Employee and Labor Relations then provides the management official's decision to the employee.
If the employee is dissatisfied with the step 1 decision, the employee can file a step 2 grievance with Employee and Labor Relations. During the step 2 grievance process, new issues or remedies cannot be introduced. Employee and Labor Relations refers the grievance to the Administrative Grievance Review Panel. Panel members consist of those who are independent of the employee's chain of command and have no other conflicts of interest. The panel is composed of two management officials and two nonsupervisory staff and is evenly distributed between headquarters and regional personnel.59 Employee and Labor Relations will notify all involved parties of the panel's decision.
The CFPB's negotiated grievance process applies to bargaining-unit employees. An employee may go to a union steward to communicate a grievance.60 The union steward will then file the grievance with Employee and Labor Relations on behalf of the employee, and an attempt is made to informally resolve the grievance with management.
If the issue is not resolved informally, the employee can submit a formal grievance to Employee and Labor Relations. The formal grievance process consists of two steps. In step 1, the formal grievance is reviewed by a management official who provides the employee with his or her decision. If the employee is dissatisfied with the decision, the employee can proceed to step 2 and file a second formal grievance with Employee and Labor Relations. In this case, the step 2 grievance is reviewed by the step 1 management official's supervisor (or the supervisor's designee). During step 2, issues or remedies that were not presented in step 1 cannot be introduced. The step 2 management official renders his or her decision after the review is completed.
The CFPB reported EEO complaint data for FY 2012 and FY 2013 in its No FEAR Act Annual Report. In FY 2012, 11 EEO complaints were filed, compared to 9 in FY 2013 (table 2).
|
Complaints by basisa |
FY 2011 |
FY 2012 |
FY 2013 |
|---|---|---|---|
|
Total complaintsb |
0 | 11 | 9 |
| Basis | |||
| Race | 0 | 3 | 4 |
| Color | 0 | 2 | 0 |
| Religion | 0 | 2 | 2 |
| Reprisal | 0 | 3 | 4 |
| Sex | 0 | 3 | 4 |
| Pregnancy | 0 | 0 | 0 |
| National origin | 0 | 4 | 1 |
| Equal Pay Act | 0 | 0 | 1 |
| Age | 0 | 9 | 4 |
| Disability | 0 | 2 | 2 |
| Genetic information | 0 | 0 | 0 |
| Non-EEO | 0 | 1 | 1 |
Source: The CFPB's No FEAR Act Annual Report FY 2012 and No FEAR Act Annual Report FY 2013.
aBecause complaints can allege multiple bases, the sum of the bases may not equal the total number of complaints filed. Return to table
bAccording to the CFPB's No FEAR Act Annual Report FY 2012 and No FEAR Act Annual Report FY 2013, the 11 complainants in FY 2012 represented 1.13 percent of the CFPB's workforce and the 9 complainants in FY 2013 represented 0.67 percent of the CFPB's workforce. Return to table
The CFPB also reported that for closed EEO investigations, it reduced complaint processing times (i.e., the average number of days in investigation and in final action by the agency) from FY 2012 to FY 2013 (table 3).
| Complaint processing times | FY 2011 | FY 2012 | FY 2013 |
|---|---|---|---|
| Average number of days in investigation | 0 | 209 | 176 |
| Average number of days in final action | 0 | 58 | 26 |
Source: The CFPB's No FEAR Act Annual Report FY 2013.
Note: These data are for complaints pending for any length of time during the fiscal year associated with completed investigations only.
We did not review individual EEO complaint files because these case files may be part of ongoing EEO or personnel investigations or other legal proceedings. Further, we could not verify the accuracy and completeness of the CFPB's EEO complaint data by comparing the No FEAR Act Report to the agency's EEO complaint tracking spreadsheet. This issue is addressed in our finding below.
No administrative complaints were filed in any of the years covered by this audit. By September 30, 2013, three months after the negotiated grievance process was available, 24 negotiated grievances were filed. Of these 24 grievances, 14 received an informal response within 30 days of filing the informal grievance. For the remaining 10, we could not determine the number of days between the informal grievance filing date and the informal response date due to missing data in the tracking spreadsheet. We did not review individual negotiated grievance files because these case files may be part of ongoing personnel investigations or other legal proceedings. Further, we could not verify the accuracy and completeness of the CFPB's negotiated grievance data by reviewing the negotiated grievance tracking spreadsheet. This issue is addressed in our finding below.
While we recognize that the OEEO was established in February 2013, we found that the CFPB's current EEO complaint tracking system does not permit the agency to effectively track or monitor EEO complaints. The tracking spreadsheet the OEEO provided to the OIG was populated for FY 2013 but only partially populated for FY 2012.61 Further, the figures on the tracking spreadsheet differed from the numbers that were publicly reported in the CFPB's No FEAR Act Reports for FY 2012 and FY 2013. Specifically, the number of formal EEO cases reported in FY 2012 did not match the number in the spreadsheet. In FY 2013, the number of formal EEO cases reported matched the spreadsheet, but different issues were noted, such as differing numbers of complaints by basis (e.g., race or age). The CFPB's No FEAR Act Reports identified 11 new formal EEO complaints for FY 2012 and 9 new formal EEO complaints for FY 2013. We did not review the case files; therefore, we did not assess the accuracy and completeness of the agency's No FEAR Act Reports.
The No FEAR Act requires each federal agency to report annually on EEO complaint activity. Specifically, the annual report must provide information that includes year-end summary data related to EEO complaint activity; an analysis of trends, causation, and practical knowledge gained through experience; and actions planned or taken to improve complaint or civil rights programs. Additionally, the EEOC's MD-715 requires that agencies use a complaint tracking and monitoring system that permits the agency to identify the location, status, and length of time elapsed at each stage of the agency's complaint resolution process; the issues and the bases of the complaints; the aggrieved individuals; the involved management officials; and other information necessary to analyze complaint activity and identify trends. The MD-715 further requires agencies to identify, monitor, and report significant trends reflected in complaint processing activity.
The CFPB's current process does not ensure the accuracy and completeness of the EEO complaint data within the tracking spreadsheet. The tracking spreadsheet captures information on 30 separate attributes for each complaint, including the complaints' status, filing dates, and resolution, throughout the duration of the complaint. According to an OEEO official, the No FEAR Act Report is populated with information directly from the case files. In our opinion, the partially populated tracking spreadsheet for FY 2012 and the differences between the tracking spreadsheet and the No FEAR Act Report indicate that the tracking spreadsheet may be unreliable and that additional internal controls are warranted. Finally, not being able to rely on the data in the tracking spreadsheet means that CFPB staff must compile data manually each time aggregated information must be reported, which is an inefficient use of resources and may result in inconsistent reporting.
An OEEO official stated that the CFPB is transitioning from its current EEO complaint tracking spreadsheet to an internally developed EEO complaint tracking database. Further, CFPB officials stated that the CFPB is in the process of procuring a more robust system to track both EEO complaints and negotiated grievances.
We recommend that the Director of the OEEO
The Director of the CFPB concurs with our recommendations. In his response to recommendation 10, the Director of the CFPB states that the CFPB will request that the U.S. Department of the Treasury confirm the accuracy of FY 2012 CFPB EEO data and that the CFPB will reconcile any resulting differences. In addition, the OEEO has a Draft Operations Manual and Processing Guide that includes processes for data tracking. In December 2014, the OEEO began to reconcile its Excel tracking spreadsheet with case files. In addition, the OEEO drafted a standard operating procedure, EEO Complaint Data-Monthly Reconciliation, on January 28, 2015. In FY 2015, the CFPB will review and amend its FY 2013 No FEAR Act data reporting as necessary.
The Director of the CFPB states that recommendation 11 has been adopted. The acquisition of a commercial tracking system was approved by the CFPB in November 2014, and implementation is planned for the end of FY 2015. The Director of the CFPB states that the CFPB is planning to establish guidelines, develop training materials, and refine internal processes for accurate and complete data entry.
The actions described by the Director of the CFPB appear to be responsive to our recommendations. We plan to follow up on the CFPB's actions to ensure that our recommendations are fully addressed.
While we recognize that the NTEU and the CFPB established an interim agreement that primarily addressed grievance procedures for bargaining-unit employees in June 2013, the CFPB's current negotiated grievance tracking system does not permit the agency to effectively track or monitor negotiated grievances. Similar to the OEEO's process, the OHC's Employee and Labor Relations group maintains a tracking spreadsheet of all negotiated grievances. We found that of the 24 negotiated grievances filed in FY 2013, 14 grievances received an informal response within 30 days of filing the informal grievance. For the remaining 10 grievances, 3 did not have an informal response date on the spreadsheet, and the other 7 were noted as withdrawn or settled but did not indicate when in the process the withdrawal or settlement occurred.
As previously noted, the CFPB's negotiated grievance procedures follow title 5, section 7121, of the United States Code. However, the law does not explicitly require the tracking or monitoring of negotiated grievances. In the absence of such requirements, GAO's Standards for Internal Controls in the Federal Government states that having effective information technology management is critical to achieving useful, reliable, and continuous recording and communication of information. The CFPB has not established internal controls to ensure the accuracy and completeness of the negotiated grievance data within the tracking spreadsheet. According to an Employee and Labor Relations official, the negotiated grievance case files must be referenced each time tracking, monitoring, and reporting is necessary because the tracking spreadsheet is unreliable.
As a result of insufficient controls related to the negotiated grievance tracking spreadsheet, the CFPB is unable to rely on the data in the spreadsheet. It must engage in a manual process that, in our opinion, is an inefficient use of resources and does not provide an effective means to monitor diversity trends.
CFPB officials stated that the CFPB is in the process of procuring a more robust system to track both EEO complaints and negotiated grievances.
We recommend that the Chief Human Capital Officer
The Director of the CFPB concurs with our recommendations. In his response, the Director of the CFPB states that the CFPB has adopted recommendation 12. On January 16, 2015, the CFPB approved a standard operating procedure, Labor and Employee Relations Monthly Grievance Reconciliation, which enhances the procedures for maintaining grievance data and also requires reconciliation of case files to the grievance data currently maintained in Excel. The Director of the CFPB states that the CFPB completed its reconciliation on January 6, 2015, and found that the CFPB's case files contained all the required documentation. In addition, the CFPB approved the acquisition of a commercial tracking system in November 2014, and implementation is planned for the end of FY 2015.
For recommendation 13, the Director of the CFPB states that the Labor and Employee Relations Monthly Grievance Reconciliation standard operating procedure provides sufficient controls to ensure data accuracy and completeness in the grievance tracking system.
The actions described by the Director of the CFPB appear to be responsive to our recommendations. We plan to follow up on the CFPB's actions to ensure that the recommendations are fully addressed.
We found that the OHC and the OEEO did not have an effective process to prevent duplicate filing of EEO complaints and negotiated grievances prior to November 2014. The OEEO provided complainants written information about the options for filing a complaint during EEO counseling but relied on complainants to self-identify the duplicate filing when submitting a formal complaint. The OHC's Employee and Labor Relations group did not have a process in place to prevent duplicate filing.
The CFPB follows title 29, part 1614, of the Code of Federal Regulations, which prohibits employees from filing a formal complaint of discrimination if the employee already initiated a grievance in writing under an agency's negotiated grievance procedure. Further, title 5, section 7121, of the United States Code prohibits employees from filing a negotiated grievance if the employee has already filed a formal EEO complaint.
An Employee and Labor Relations official stated that the NTEU is responsible for communicating with bargaining-unit employees the requirement to avoid duplicate filing of EEO complaints and grievances. In addition, an OEEO official stated that the OEEO relied on complainants to self-identify the duplicate filing after receiving information about their election decision during EEO counseling rather than discussing every complaint with Employee and Labor Relations, due to confidentiality concerns.
The filing of duplicate complaints results in an inefficient use of limited OEEO and Employee and Labor Relations resources and may lead to inaccurate reporting and data analysis. In addition, increased employee awareness of the effects of duplicate filing is important because the handling of the employee's complaint and its ultimate resolution depends on which filing was submitted first.
Subsequent to the period under our review, the OHC and the OEEO developed procedures that will allow the CFPB to determine whether the aggrieved employee first elected the negotiated grievance process or the EEO complaint process. These procedures were approved and became effective as of November 2014.
We recommend that the Director of the OEEO, in coordination with the Chief Human Capital Officer,
The Director of the CFPB concurs with our recommendation. In his response, the Director of the CFPB states that the CFPB has adopted recommendation 14 by implementing procedures to prevent the duplicate filing of formal EEO complaints and negotiated grievances. These procedures include clarifying with the NTEU the options that employees have and their associated potential consequences; the procedures also include an enhanced notice for employees filing an informal EEO complaint that details the employee's options under either the EEO process or the negotiated grievance process. In November 2014, the CFPB formally documented the process in a standard operating procedure, Election of Negotiated Grievance or EEO Complaint Procedures. The Director of the CFPB states that to date, the agency has not identified any instances in which an EEO complaint and a negotiated grievance that raised the same issue were inappropriately processed.
The actions described by the Director of the CFPB appear to be responsive to our recommendation. We plan to follow up on the CFPB's actions to ensure that the recommendation is fully addressed.
