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> U. S. Department of Commerce

Annual Report on the No FEAR Act

> 2007

The Department of Commerce is pleased to submit this annual report in
accordance with Section 5, Part 724 of the Code of Federal Regulations
(5 C.F.R. § 724), Implementation of Title II of the Notification and
Federal Employee Antidiscrimination and Retaliation (No FEAR) Act. The
report is divided into seven sections that track the reporting areas
required by the regulations: pending and resolved federal court cases;
administrative equal employment opportunity complaints; disciplinary
actions resulting from violations of nondiscrimination and whistleblower
protection statutes; agency disciplinary policies; trend analyses of
court cases and administrative complaints; a budgetary impact analysis;
and the agency training plan.

In accordance with 5 C.F.R. § 724.302 (b), this report also provides
information for the data elements in paragraph (a) of 5 C.F.R. 724 for
each of the five fiscal years preceding the fiscal year on which the
first report is based, to the extent that such data is available.

This report does not include data or responses from the U.S. Patent and
Trademark Office (USPTO). The USPTO is submitting its own report under
separate cover.

**Part 1. The Number of Federal Court Cases Pending and Resolved**

Section 5, Parts 724.302(a)(1) through (3) of the Code of Federal
Regulations require agencies to report:

(1)The number of cases in Federal court pending or resolved in each
fiscal year and arising under each of the respective provisions of the
Federal Antidiscrimination Laws and Whistleblower Protection Laws
applicable to them as defined in Sec. 724.102 of subpart A of this part
in which an employee, former Federal employee, or applicant alleged a
violation(s) of these laws,

separating data by the provision(s) of law involved;

\(2\) In the aggregate, for the cases identified in paragraph (a)(1) of
this section and separated by provision(s) of law involved:

\(i\) The status or disposition (including settlement);

\(ii\) The amount of money required to be reimbursed to the Judgment
Fund by the

agency for payments as defined in Sec. 724.102 of subpart A of this
part;

> \(iii\) The amount of reimbursement to the Fund for attorney\'s fees
> where such fees have been separately designated;

\(3\) In connection with cases identified in paragraph (a)(1) of this
section, the total number of employees in each fiscal year disciplined
as defined in Sec. 724.102 of subpart A of this part and the specific
nature, e.g., reprimand, etc., of the disciplinary actions taken,
separated by the provision(s) of law involved.

[Response]{.underline}: The statutes applicable to this report are:

Section 2302(b)(1) of the Civil Service Reform Act, which prohibits
discrimination in personnel actions based on: race, color, religion,
sex, or national origin (as prohibited by Title VII of the Civil Rights
Act of 1964); age (as prohibited by sections 12 and 15 of the Age
Discrimination in Employment Act of 1967); sex (as prohibited by section
6(d) of the Fair Labor Standards Act of 1938); handicapping condition
(as prohibited by section 501 of the Rehabilitation Act of 1973); and
marital status or political affiliation.

Section 2302(b)(9) of the Civil Service Reform Act, which prohibits
taking a personnel action based on an employee=s: exercise of any
appeal, complaint, or grievance right; testimony or other lawful
assistance in the exercise of any appeal, complaint, or grievance right;
cooperation with or disclosure to the agency=s Inspector General or the
Office of Special Counsel; or refusal to obey an illegal order.

Section 6(d)(1) of the Fair Labor Standards Act of 1938, also known as
the Equal Pay Act, which prohibits discrimination "between employees on
the basis of sex by paying wages to employees \... at a rate less than
the rate \[paid\] to employees of the opposite sex \... for equal work
on jobs the performance of which requires equal skill, effort and
responsibility, and which are performed under similar working
conditions\...." 29 U.S.C. 206(d)(1)

The Age Discrimination in Employment Act (ADEA) of 1967, as amended,
which states that, \"All personnel actions affecting employees or
applicants for employment who are at least 40 years of age \... in
executive agencies \... shall be made free from any discrimination based
on age.\" 29 U.S.C. \' 633a(a).

Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.,
which prohibits discrimination on the basis of disability and requires
agencies of the Federal government to make reasonable accommodation to
the known physical or mental limitations of qualified employees with
disabilities, unless the agency can demonstrate that accommodation would
prove to be an \"undue hardship.\"

Section 717 of the Civil Rights Act of 1964 (Title VII), which prohibits
discrimination based on race, color, religion, sex, or national origin
against federal employees in executive agencies. 42 U.S.C.
\'2000e‑16(a). Under Title VII, it is also unlawful \"for an employer to
discriminate against any of its employees because \[the employee\] has
opposed any practice made an unlawful employment practice by Title VII,
or because \[the employee\] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under Title VII.

Tables showing the number and disposition of civil actions filed in a
United States District Court under any of these statutes appear below:

**Table 1.A: Federal Court Litigation, FY 2001**

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![](media/image4.wmf)**Table 1.B: Federal Court Litigation, FY 2002**

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**Table 1.C: Federal Court Litigation, FY 2003**

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**Table 1.D: Federal Court Litigation, FY 2004**

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**Table 1.E: Federal Court Litigation, FY 2005**

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**Table 1.F: Federal Court Litigation, FY 2006**

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**Part 2**. **Administrative Equal Employment Opportunity Complaint
Data**

Section 5, Part 724.302(a)(4) of the Code of Federal Regulations
requires agencies to report:

The final year-end data about discrimination complaints for each fiscal
year that was posted in accordance with Equal Employment Opportunity
Regulations at subpart G of title 29 of the Code

of Federal Regulations (implementing section 301(c)(1)(B) of the No FEAR
Act).

[Response]{.underline}: See the following tables.

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  ----------------------- --------------- ---------- ---------- ---------- ---------- --------
  **Complaint             **Comparative                                               **2006
  Investigations**        Data**                                                      Thru
                                                                                      9/30**

                          **Previous                                                  
                          Fiscal Year                                                 
                          Data**                                                      

                          **2001**        **2002**   **2003**   **2004**   **2005**   

  Pending Complaints      417             252        133        92         141        68
  Where Investigation                                                                 
  Exceeds Required Time                                                               
  Frames                                                                              
  ----------------------- --------------- ---------- ---------- ---------- ---------- --------

**Part 3. Disciplinary Actions**

Section 5, Part 724.302(a)(5) of the Code of Federal Regulations
requires agencies to report:

Whether or not in connection with cases in Federal court, the number of
employees in each fiscal year disciplined as defined in Sec. 724.102 of
subpart A of this part in accordance with any agency policy described in
paragraph (a)(6) of this section. The specific nature, e.g., reprimand,
etc., of the disciplinary actions taken must be identified.

[Response]{.underline}: Consistent with the fact that there were no
final judgments of discrimination against the Department between Fiscal
Years 2001 and 2006, no employees were disciplined in connection with
cases in Federal court. One employee was disciplined in accordance with
an agency policy as described in paragraph (a)(6) during the reporting
period because that employee was found to have engaged in sexual
harassment in violation of Department Administrative Order 202-955,
described in Part 4. The employee was demoted, then reassigned from a
supervisory position to a non-supervisory position.

No employees were disciplined in response to the eleven findings of
discrimination described in Section 5.b (Administrative EEO complaints)
because the offending employees were no longer on the rolls at the time
the findings were made. In three cases, the supervisors found to be
responsible were temporary employees and no longer employed by the
Department at the time the finding of discrimination was made. In four
cases (three of which were filed by one complainant and consolidated),
the responsible officials were political appointees who had resigned by
the time the complaints were decided. In one case, the responsible
official retired prior to final action on the complaint. In two cases
(filed by one complainant and consolidated), the unit of the agency
where discrimination was found was transferred to the Federal Aviation
Administration (FAA) after the finding of discrimination was made, but
before any corrective action took place. The legislation authorizing the
transfer of function also transferred all pending liabilities.
Therefore, the FAA assumed responsibility for all corrective action
stemming from those complaints. Corrective action on the remaining
complaint is still pending final appellate action by the EEOC.

**Part 4. Disciplinary Policies**

Section 5, Part 724.302(a)(6) of the Code of Federal Regulations
requires agencies to report:

A detailed description of the agency\'s policy for taking disciplinary
action against Federal employees for conduct that is inconsistent with
Federal Antidiscrimination Laws and Whistleblower Protection Laws or for
conduct that constitutes another prohibited personnel practice revealed
in connection with agency investigations of alleged violations of these
laws.

[Response]{.underline}: The Department's policy for taking disciplinary
action against Federal Employees for conduct that is inconsistent with
Federal Antidiscrimination Laws and Whistleblower Protection Laws or for
conduct that constitutes another prohibited personnel practice revealed
in connection with agency investigations of alleged violations of these
laws is set forth in Department Administrative Order 202-751 (DAO
202-751), a copy of which is appended to this report.

The relevant offenses appear at Numbers 36, 42, 45, and 46 on the Table
of Offenses and Penalties:

-   Harassing, threatening or taking reprisal action against an employee
    as a result of or in anticipation of a grievance, appeal, complaint,
    or other exercise of rights (5 days suspension to removal);

-   Misrepresentation, falsification, or omission of material fact in
    connection with application, employment or any record, report,
    investigation or other proceeding

> (written reprimand to removal);

-   Discrimination. As used in the Table of Offenses and Penalties,
    discrimination refers to specific acts taken by an employee in the
    performance of his/her official duties which discriminate against
    one or more individuals on the basis of race, sex, religion, color,
    age, national origin, disability, marital status, or political
    affiliation. (5 day suspension to removal); and

-   Refusal to answer appropriate interrogation in a properly authorized
    inquiry (written reprimand to removal).

Departmental Administrative Order 202-955, a copy of which is appended
to this report, also provides an expedited process for reviewing
allegations of harassment, terminating actual incidents of harassment,
and taking disciplinary actions as appropriate, which includes stopping
any ongoing harassment and initiating disciplinary or adverse action
when an inquiry results in a finding that misconduct has occurred.

**Part 5. Trend Analyses**

Section 5, Part 724.302(a)(7) of the Code of Federal Regulations
requires agencies to report:

An analysis of the information provided in paragraphs (a)(1) through (6)
of this section in conjunction with data provided to the Equal
Employment Opportunity Commission in compliance with 29 CFR part 1614
subpart F of the Code of Federal Regulations. Such analysis must
include:

\(i\) An examination of trends;

\(ii\) Causal analysis;

\(iii\) Practical knowledge gained through experience; and

\(iv\) Any actions planned or taken to improve complaint or civil rights
programs of the

agency with the goal of eliminating discrimination and retaliation in
the workplace;

# Part 5.a: Civil Actions Filed in Federal Court 

[Analysis of Totals:]{.underline}

For the fiscal years 2001 through 2006, the Department of Commerce
litigated 117 cases in Federal district and appellate courts.
Eighty-three of those cases have been resolved, leaving 34 cases pending
at the time of this report.

Of the 83 cases resolved, the Department settled 18 (21.6%). In all 65
cases that were not settled, there was no final judgment of
discrimination against the Department. Consequently, there was no case
requiring the discipline of any Department employee.

The Department of Commerce paid a total of \$821,696.62 in settlements
(averaging \$136,949.44 per year); of that \$114,000 (\$19,000 per year)
were for attorneys fees.

[Analysis of Trends:]{.underline}

During the reporting period, there were no lawsuits brought against the
Department based on a violation of 5 U.S.C. 2302(b)(1) (Civil Service
Reform Act) or 29 U.S.C. 206(d) (pay discrimination). The majority of
lawsuits against the Department are based on an alleged violation of
Title VII of the Civil Rights Act of 1964.

As shown in the table below, there is a decreasing trend in the number
of new antidiscrimination and whistleblower protection lawsuits brought
against the Department.

  ---------------------------------- ------------------------------------
  Fiscal Year                        \# of New Suits

  2001                               26

  2002                               20

  2003                               18

  2004                               16

  2005                               12

  2006                               11
  ---------------------------------- ------------------------------------

## Part 5.b: Administrative EEO Complaints

[Number of filings]{.underline}:

Between Fiscal Year (FY) 2001 and FY 2006, formal complaint filings have
declined each year, for a total decline of 48%. Excluding cases
attributable to the 2000 Decennial Census, the decline in formal
complaint filings is 21%. The number of repeat filers declined sharply,
from a high of 12 in FY02 to a low of 2 in FY04. FY02, FY05 and FY06
each had 4 repeat filers.

[Bases of Complaints:]{.underline}

The leading bases for complaints throughout FY06 and the preceding five
fiscal years have been, in order of frequency, reprisal for prior
complaint activity or opposition to perceived discrimination, race, age,
sex, and disability.

Reprisal, as a percentage of all bases alleged, ranged from a low of 19%
in FY03 to a high of 25% in FY04 and averaged 22% for the entire period.

Race, as a percentage of all bases alleged, ranged from a low of 15% in
FY04 to a high of 28% in FY02, averaging 21% for the entire period.
Within this category, Race/Black is the basis most frequently alleged,
averaging 66% of all race-based complaints for the period. The number of
raced-based complaints filed by African Americans has remained steady
for the past six fiscal years, so as complaint filings have declined
overall, race-based complaints filed by African Americans represent a
greater percentage of the caseload. In FY01, 24% of all non-Decennial
formal complaint filings were based on Race/Black. In FY05 and FY06, 27%
of all formal complaint filings were based on Race/Black.

Age, as a percentage of all bases alleged, remained fairly constant,
ranging from a low of 16% in FY 02 to a high of 19% in FY05, and
averaging 17% for the entire period.

Sex, as a percentage of all bases alleged, remained fairly constant,
ranging from a low of 13% in FY 06 to a high of 16% in FY05, and
averaging 14 % for the entire period. During the reporting period,
females alleged sex discrimination twice as often as males.

Disability, as a percentage of all bases alleged, ranged from a low of
8% in FY01 to a high of 15% in FY 06, averaging 11% for the entire
period. Disability is the only basis to show an unbroken upward trend.

[Issues in Complaints]{.underline}:

The leading issues in complaints filed throughout FY06 and the preceding
five fiscal years have been, in order of frequency, non-sexual
harassment, promotions/non-selections, and assignment of duties.
Performance evaluations, terms and conditions of employment, and
termination (excluding terminations of temporary Decennial employees)
tie for the fourth most prevalent issue, followed by reasonable
accommodation.

Non-sexual harassment, as a percentage of all issues alleged, ranged
from a low of 14% in FY01 to a high of 24% in FY03, averaging 18% for
the entire period.

Promotions and non-selections, as a percentage of all issues alleged,
ranged from a low of 9% in FY05 to a high of 25% in FY02, averaging 15%
for the entire period.

Performance evaluations, terms and conditions of employment, and
terminations each averaged 6% for entire the period. Performance
evaluations, as a percentage of all issues alleged, ranged from a low of
4% in FY01 to a high of 9% in FY06. Terms and conditions, as a
percentage of all issues alleged, ranged from a low of 3 % in FY03 and
FY04 to a high of 12% in FY01. Non-Decennial terminations ranged from a
low of 3% in FY01 to a high of 9% in FY06 and show a general upward
trend. Decennial terminations were excluded because most were filed by
temporary employees whose terminations were due to the close of the
Decennial operation.

Reasonable accommodation, as a percentage of all issues alleged, ranged
from a low of 4% in FY01 to a high of 7% in FY06, averaging 5% for the
entire period. Reasonable accommodation is the only issue to show an
unbroken upward trend, which is reflective of the upward trend in
complaints based on disability. This category also includes religious
accommodation, but that issue has been so raised so infrequently it is
statistically insignificant.

[Findings of Discrimination]{.underline}

There were 11 findings of discrimination, two of which were in Decennial
cases, between FY01 and FY06. They ranged from a low of 0 in FY05 to a
high of 4 in FY01. Four findings were made after a hearing before the
Equal Employment Opportunity Commission and seven were made without a
hearing.

The bases upon which discrimination was found were religion (2);
reprisal (6); sex (one male, three females); age (2); and disability
(2). The issues upon which discrimination was found were
appointment/hire (2); assignment of duties (1); awards (2); non-sexual
harassment (3); sexual harassment (1); promotion/non-selection (2);
directed reassignment (1); reasonable accommodation (2); and time and
attendance (1). The number of issues and bases total more than the
number of findings because complainants may allege multiple bases and
issues.

The bureaus affected were the National Telecommunications and
Information Administration (3 consolidated cases); the National Oceanic
and Atmospheric Administration (1 case in the Northwest Region of the
National Marine Fisheries Service and 2 consolidated cases in the
headquarters offices of the National Ocean Service); the headquarters
offices of the Bureau of Industry and Security (1 case); the Bureau of
the Census (1 case each at the National Processing Center in
Jeffersonville, Indiana, the 2000 Decennial Local Census Office in
Brooklyn, New York, and the 2000 Local Census Office in Shreveport,
Louisiana); and the Milwaukee Office of the International Trade
Administration. The timing, geographic dispersion, and diverse subject
matter of these complaints do not suggest the existence of an endemic
problem, but Departmental efforts to inform all supervisors and
employees of their rights and responsibilities regarding equal
employment opportunity are also directed toward preventing isolated
incidents such as these.

**Part 6. Budgetary Adjustments**

Section 5, Part 724.302(a)(8) requires agencies to report:

For each fiscal year, any adjustment needed or made to the budget of the
agency to comply with its Judgment Fund reimbursement obligation(s)
incurred under 5 C.F.R. § 724.103.

[Response]{.underline}: The Department of Commerce has not made or
needed to make adjustments to its budget to comply with its Judgment
Fund reimbursement obligation(s) incurred under 5 C.F.R. § 724.103.

**Part 7. Training Plan**

Section 5, Part 724.302(a)(9) requires agencies to report:

The agency\'s written plan developed under 5 C.F.R.§ 724.203(a) to train
its employees.

[Response]{.underline}**:**

The U. S. Department of Commerce's training plan encompasses a variety
of training delivery platforms as follows:

a.  We offer on-line training through the Department's Learning
    Management System (LMS). SkillSoft developed the No FEAR Act
    training, while GeoLearning provided the e-learning delivery
    platform. The staffs from the Offices of Civil Rights at the U.S.
    Departments of Commerce and Housing and Urban Development reviewed
    and edited the No FEAR Act training prior to its release by
    SkillSoft. As of January 8, 2007, 19,310, or 44% of DOC employees
    had completed the course.

b.  We offer PowerPoint and text versions of the No FEAR Act training
    which provide a Section 508 compliant alternative format for persons
    with visual disabilities. The printed versions serve as a back up to
    the LMS and provide training for employees who do not have access to
    the LMS, such as some Census field staff. As of January 8, 2007,
    9,184 or 20% of employees had completed the No FEAR Act training
    through these alternative versions.

c.  We developed an in-house version of the No FEAR Act training to
    train new employees during new employee orientation sessions. These
    documents are also housed permanently on the Office of Civil Rights
    website at <http://www.osec.doc.gov/ocr>
    /nofear/NewEmployeeTraining-NoFear.html. This training is available
    to all employees at any time as initial training or as a refresher
    or reference.