The agency is far from meeting its requirement to issue decisions within 60 days.
The Environmental Protection Agency has violated federal rules in delaying for years a process to protect employees claiming discrimination or harassment, drastically underperforming on the requirement that agencies resolve those cases within 60 days.
EPA took an average of 491 days to issue a final decision following a complaint of discrimination or harassment from 2011 through 2016, according to an internal investigation launched at the behest of a separate watchdog agency. The problem is getting worse, with the average time to issue a decision growing every year since 2013. In that year, EPA released its final decisions in an average of 229 days; in 2016, it took the agency an average of 810 days.
The Office of Special Counsel tasked EPA with launching the investigation after a whistleblower, Susan Lees, sounded the alarm about the delays. Equal Employment Opportunity Commission regulations require agencies to issue final decisions 60 days after an employee requests such an action, or after the 30-day time period to request a hearing before the EEOC expires.
Missing the timelines has exposed EPA to “default judgments” from EEOC, which could in turn lead to monetary penalties. The commission could require a delinquent agency to pay if employees are deemed to have lost wages due to discrimination or harassment and for management to remedy the underlying issues.
In his agency’s report, acting Deputy EPA Administrator Michael Flynn attempted to downplay the findings. He cited a 2014 EEOC report that found only 52 percent of agencies issued final decisions in a timely manner. At EPA, he said, the issues were due to general systemic problems rather than waste, fraud or “gross mismanagement.” Flynn also cited the steps EPA is taking to implement the recommendations in the report to illustrate that the agency is taking the problem seriously.
“I believe that the remedial measures being undertaken by the agency evidence the EPA's commitment to the protection of the civil rights of its employees and ensuring that civil rights complaints are processed in a timely manner,” Flynn said in a letter to OSC.
OSC and Lees, the whistleblower, took issue with EPA’s assessment. The symptoms unveiled in the investigation, they said, pointed toward the exact illnesses the agency claimed it avoided.
“Gross mismanagement means a management action or inaction which creates a significant adverse impact upon the agency's ability to accomplish its mission,” Lees said after being given the chance to review EPA’s report.
EPA’s finding that gross mismanagement did not occur is “unreasonable,” said Henry Kerner, the recently sworn in OSC chief.
“By allowing a highly inefficient process to remain uncorrected over a period of at least six years, while thereby adversely affecting the statutory and due process rights of EPA employees, [the Office of Civil Rights] has engaged in management inaction that has a deleterious effect on its ability to accomplish its mission,” Kerner said in a letter spelling out the findings to President Trump. “While EPA has made positive steps to remediate these issues, the established history of delays and their potential consequences are troubling.”
The recommendations EPA has acted upon include tackling the backlog of discrimination and harassment cases and providing the Civil Rights Office with sufficient resources. The investigation found an inefficient and lengthy drafting and review process, with a slew of team leaders and attorneys repeatedly passing back versions of a pending decision. EPA also said it would develop a template for dealing with the cases in a timely manner that would spell out the responsibilities of each office involved in the process.