The initiative, detailed in a March 25 memorandum obtained by Government Executive, sets out a series of procedures by which Washington, D.C., field office employees will determine which cases are worthy of a hearing before one of the agency's administrative judges.
Andrea Brooks, national vice president for the Women's and Fair Practices division of the American Federation of Government Employees, blasted the initiative, arguing it will take away employees' right to an impartial arbitration of their discrimination claims. The initiative represents a "philosophical decision that there isn't any discrimination in the federal government and that these [complainants] are just a bunch of whiners who don't have real cases," she said.
The memorandum, addressed to Washington Field Office Director Dana Hutter from four field office employees, outlines a program in which two of those agency employees-Silvio G. Fernandez, deputy field office director, and David Gonzalez, field office state and local coordinator-will assess cases and determine whether they should be dismissed, granted summary judgment or allowed a hearing. The memo said the agency is prepared to move forward with the initiative immediately.
According to union officials, no similar memorandums have been issued to field office directors outside of Washington.
Under the initiative, when Fernandez and Gonzalez determine that an employee's charge fails to meet procedural requirements, they will label the case "red," and issue a proposed dismissal notice. The parties will not be allowed to move forward with discovery. An EEOC administrative judge will then be assigned to the case, and the parties involved will be granted an opportunity to respond to the dismissal notice. The administrative judge will review the responses and either request a hearing or dismiss the case.
Cases will be labeled "yellow" and slated for summary judgment when there appears to be no disagreements between the parties, and an appropriate judgment is clear. The parties will not be granted a discovery period, but will be allowed to respond to the notice of summary judgment. An agency administrative judge will review the case and have the opportunity to request a hearing. Otherwise, the administrative judge will issue a judgment after reviewing the parties' responses.
Cases will be labeled "green" when Fernandez and Gonzalez determine that an airing of the facts is necessary. Those cases will be assigned to an administrative judge and scheduled for a hearing.
"This has no impact on the legal rights of any individuals, and it's merely a mechanism being employed by one field office to process its hearings caseload more efficiently," said an EEOC spokesperson.
But the National Council of EEOC Locals, a branch of AFGE, is protesting the move, arguing that it marks a substantial change in working conditions for the agency's administrative judges and a reduction in their authority. The union contends that the change must be bargained with the union.
Gabrielle Martin, president of the EEOC Locals, said that she views the initiative as the latest in a long series of "under the radar screen" plans by EEOC Chairwoman Cari M. Dominguez to alter the system of airing and adjudicating claims of discrimination by federal employees.
In 2002, a Dominguez-proposed plan was leaked that would have shifted responsibility for investigation of discrimination complaints from the accused federal agencies to the EEOC. It also would have given new power to EEOC district directors in determining whether cases would be turned over to an administrative judge for a hearing.
The plan drew protests from union and civil rights groups and was never implemented. Dominquez later said that any changes in the EEOC process would go through the regulatory process. Proposed regulations were expected last summer, but have not been posted in the Federal Register.
Brooks views the current initiative as an effort to avoid the regulatory process, which requires the agency to allow public comment and congressional review of changes to its processes. "It's an end-around, and a thumbing of the nose to Congress," she said. Brooks said the union will demand that any change go through the regulatory process.