*The U.S. Equal Employment Opportunity Commission*

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# Attaining a Model Agency Program:                            Efficiency

##  Table of Contents

Introduction

Background

Maintenance of an Efficient Complaint Resolution Process

Counseling Stage

Performance-Based Accountability and Commitment to Early          Resolution of Disputes Produced Results

Recognition of Good Performance For Collateral Duty Counselors Can          Help Motivate Staff

Dismissal/Acceptance Stage

Timeliness Requirements in Staff Performance Plans Produced Quicker          Decisions to Accept/Dismiss a Complaint

Emphasis on Legal Sufficiency of Decision Enhanced Affirmance Rate

Investigation Stage

Timely Contract Procurement Hastened the Start of the Investigation

Short Time Frames in Contracts Lead to Quicker Investigations

Agency Complaints Manager Involvement Essential to Vendor		  Performance

Incentives/Penalties Motivate Vendors to Perform

Fees-for-Services Motivate Better Behavior By Program Managers

Timely Legal Sufficiency Reviews Help Ensure A Quality Work		  Product

Final Agency Actions

Short Time Frames Produced Quick Results

One-Stop Shopping For Investigations and Final 		  Decisions Produced Quick Results

Eliminating Backlog Key to Improved Average Processing Times

Effective Complaints Tracking and Monitoring System

Conclusion

## INTRODUCTION

The United States Equal Employment Opportunity Commission's (EEOC) ManagementDirective 715 (MD-715) is the first directive issued by EEOC that identifies the EssentialElements for structuring model equal employment opportunity (EEO) programs. Attainment of a model EEO program provides an agency with the necessary foundationfor achieving a discrimination-free work environment.

A discrimination-free work environment, characterized by an atmosphere of inclusion andfree and open competition for employment opportunities, is the ultimate goal of MD-715and the federal government.  MD-715 provides a roadmap for creating effective EEOprograms for all federal employees as required by Title VII, as amended, 42 U.S.C.§ 2000e *et seq*., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.§ 791 *et seq*.

There are six Essential Elements for maintaining model Title VII and Rehabilitation Actprograms.  They are as follows:

- Demonstrated commitment from agency leadership
- Integration of EEO into the agency's strategic mission
- Management and program accountability
- Proactive prevention of unlawful discrimination
- Efficiency
- Responsiveness and legal compliance

Each of these Essential Elements is thoroughly discussed in MD-715.  In this report, theCommission focuses on complaint processing aspects of the Essential Element of"Efficiency."

As set forth in greater detail in MD-715, to achieve the Essential Element of Efficiency incomplaints processing, agencies must, among other things, maintain a fair and impartialcomplaint resolution process which is conducted expeditiously with the necessaryresources.  By recognizing practices which the identified agencies believe help achievethis goal and sharing with other federal agencies the information learned, EEOC seeks toimprove EEO programs throughout the federal government and to further the goal that thefederal government becomes a model employer.

## BACKGROUND

In its regulations, EEOC has identified timeliness benchmarks for some operations of theadministrative complaints process.  These benchmarks require agencies to complete theoperations in as short a time as possible: 30 to 90 days to timely conduct and concludeEEO counseling (29 C.F.R. § 1614.105) and 180 days to conduct and conclude aninvestigation (29 C.F.R. § 1614.108).  The acceptance and dismissal of complaints (29C.F.R. § 1614.107) has no specific regulatory benchmark, but needs to be performed inas short a time frame as possible in order to meet the investigative deadline.  Finally,regulations require that final agency actions that do not follow a decision by anadministrative judge be issued within 60 days of receiving notification from complainantthat s/he is requesting an immediate decision from the agency or from the end of theperiod for complainant to request a hearing when no response has been received fromcomplainant.(1)  29 C.F.R. § 1614.110(b). 

From agency data contained in EEOC's fiscal year 2003 Annual Report on the FederalWorkforce, EEOC examined data for 95 agencies(2) to determine the extent to which they demonstrated timeliness in the way they performed complaint processing activities.  EEOCalso sought to determine if there were any commonalities or differences in how theyperformed their complaint processing activities based on the size of the agency, andfocused the inquiry on size as follows:

From this list, EEOC identified agencies of varying sizes who produced results in shorttime frames in one or more factors (EEO counseling, dismissals, investigations and finalactions)(3) and interviewed the appropriate agency officials to learn how the agencies achieved their success.(4)  Based on these interviews, we report our survey results about case management in counseling, dismissals, investigations and final agency actions. Although agencies identified many practices which led to their success in the timelyprocessing of EEO complaints, we learned that one trend was common to all areas ofcomplaints processing for most agencies: vigilant management controls which focused onensuring progress at each step of the complaints process led to shorter processing times.

## MAINTENANCE OF  AN EFFICIENT COMPLAINT RESOLUTION PROCESS

### COUNSELING STAGE

Pursuant to 29 C.F.R. § § 1614.105(d) and (e), an EEO Counselor must concludecounseling within 30 days of the date the aggrieved person contacted the EEO Office torequest counseling, unless the aggrieved person agrees to a longer counseling period orchooses ADR.  Under no circumstances may counseling extend beyond 90-days.

In measuring success in timely counseling, we looked to whether an agency met the 30-day and 90-day standard, recognizing that the 30-day time-frame could be exceeded at the complainant's request, and thus the agency could not always control its ability to meetthe 30-day time frame.(5)

- Performance-Based Accountability and Commitment to Early          Resolution of Disputes Produced Results  Some agencies asserted they achieved success in completing timely EEO          counseling by instituting performance-based accountability measures and          receiving a strong commitment from the agency head and senior          management to alternative resolution of disputes during the counseling          stage.    For example, the Smithsonian Institution (Smithsonian), which          completed 97% of its counseling within the regulatory time frames in 2003,          reported several factors that accounted for its success in this area:    - First, a timeliness requirement was written into the EEO office               performance goals.  Office goals required meeting the regulatory 30-               and 90-day limits.  The counselors reported that this timeliness               element helped them stay focused on time-frames.
  - Second, the Secretary embraced early complaint resolution and               devoted resources to the early resolution of all employment-based               complaints.  As a result, Smithsonian reported that it was able to               significantly increase the percentage of EEO counseling contacts that               did not result in the filing of a formal complaint from 30% in FY 2002               to 50% in FY 2003.
  - Third, Smithsonian reported that non-EEO related workplace               controversies were diverted to an Ombuds office, which worked               cooperatively with the EEO office to resolve these controversies               before they resulted in EEO counseling pursuant to 29 C.F.R. §               1614.105.
  - Finally, Smithsonian pointed to its efforts to communicate equality of               opportunity throughout the agency, noting that it had in place updated               diversity and anti-harassment policies signed by the Secretary;                introduced the concept of non-discrimination and equality of               employment opportunity at all new-employee orientation classes;                provided all new supervisors with two days of EEO training; and                required all employees to take an anti-harassment course once every               three years.  The Department of State (State) consistently reported, from 2001 to 2003,          that the percentage of its workforce seeking counseling was below the          national average.(6)  State attributed this success 		  to its Secretary's commitment to EEO.  Dedication of resources to the agency's EEO office          provided for early intervention through ADR, and also included an Ombud's          program, which allowed non-EEO related workplace controversies to be          diverted from the EEO counseling system.  State reported that 90% of          referrals to the Ombud's office were successfully resolved. 
Additional techniques implemented by State to improve counseling included          the following:
State's collateral duty EEO counselors reported to a single manager               whose performance plan included a timeliness component.                Accordingly, that manager had an incentive to ensure that each               counselor  made every effort to comply with the statutory requirement.
State implemented a "three strikes and you're out" policy, where a               collateral duty counselor who turned in a tardy or inferior work               product three times had his/her collateral duties terminated.
State required that its volunteer EEO counselors be contributing               members of the work force, respected by colleagues and experienced               in the program where they worked.  This effort was expected to               enhance the agency's ability to ensure that competent staff assumed               EEO counselor collateral duties.

- Recognition of Good Performance For Collateral Duty Counselors Can          Help Motivate Staff  The Defense Finance and Accounting Service (DFAS), which uses collateral          duty EEO counselors reported that it placed value on recognizing good          performance in that function.  Because the EEO office had no direct input          into the performance appraisals of its collateral duty counselors, it had to          devise an alternative way to reward and reinforce the counselors' good          performance.  DFAS did this by rewarding the counselors with on-the-spot          cash awards, letters to supervisors, luncheon events and awards          presentations.  In 2001, DFAS completed 91% counselings in 90 days; by          2003, DFAS completed 97% of its counselings in 90 days, despite a 44%          increase in the number of counselings conducted in 2003.

### DISMISSAL/ACCEPTANCE STAGE

After receipt of the EEO Counselor's report, an agency should either accept or dismiss acomplaint within a reasonable amount of time. Equal Employment OpportunityManagement Directive for 29 C.F.R. Part 1614.  (EEO MD-110), Ch. 5, at 5-1 (Nov. 9,1999).  An investigation following acceptance must be completed within 180 days of thefiling of the complaint.  Clearly, the sooner the accept/dismiss decision is made, the soonerthe investigation can begin.

- Timeliness Requirements in Staff Performance Plans Produced Quicker          Decisions to Accept/Dismiss a Complaint  Smithsonian, State and Department of Veterans Affairs (VA) reported          imposition of time elements in EEO professionals' performance plans, and          believed that this kept staff focused on the goal.(7)		  Smithsonian and State showed dramatic improvements from 2001 to 2003 in timely processing          dismissals: in 2001, State dismissed 13 complaints in 344 days; by 2003,          State dismissed 35 complaints in 86 days.  Similarly, in 2001, Smithsonian          dismissed 6 complaints in 346 days, and by 2003, it dismissed 4 complaints          in 54 days.  The VA's achievements in this area pre-dated 2001.  From 2001          to 2003, VA consistently issued the bulk of its dismissal determinations in          record time:   		                 2001: 569 complaints dismissed in 66 days;                2002: 449 complaints dismissed in 54 days;                2003: 429 complaints dismissed in 82 days.  In addition, six agencies reported agency goals of accepting/dismissing a          complaint within a short time frame:  		                 10 days for Department of Transportation (DOT);                15 days for National Aeronautics and Space Administration (NASA),                        Department of the Air Force, and Department of the Army;                30 days for Tennessee Valley Authority (TVA); and                45 days for Department of the Treasury (Treasury).   Each of these agencies dramatically improved processing time for dismissals          from 2001 to 2003:  200120022003# DismissalsAvg.Days# DismissalsAvg.Days# Dismissals Avg.Days**DOT**254218148131106107**NASA**43561122117200**AirForce**1212768622477136**Army**15620625112214574**TVA**7283722515154**Treasury**377190337127272120 
- Emphasis on Legal Sufficiency of Decision Enhanced Affirmance Rate  State reported two major reasons for a greatly improved processing time inaccepting/dismissing complaints.  In addition to imposing time elements inits EEO professionals' performance plans, this agency has full-time attorneysamong its staff in the civil rights office to review all formal complaints foracceptance/dismissal and to write all dismissal decisions, and it providedEEOC case law in its analyses to support its dismissal decisions.  As a resultof these two actions, the agency saw a decrease in EEOC reversals ofdismissals on appeal, from a 56% reversal rate in 1999 to 34% in 2003. State believes that its provision of sound legal advice enhanced its ability toproduce an accurate product.

###  INVESTIGATION STAGE

Long investigative delays may impede the primary goal of the investigative process: togather sufficient evidence to permit a determination of whether unlawful discriminationoccurred.  Such delays can also result in stale witness memories or lost documents.

EEOC regulation 29 C.F.R.  § 1614.106(e)(2) requires agencies to conduct aninvestigation and issue a report to the complainant within 180 days of the filing of thecomplaint unless the parties agree in writing to extend the time period.  If the parties agreeto an extension, they can extend the investigative period by not more than an additional90 days, to a maximum of 270 days to complete the investigation. 

An amended or consolidated complaint can also add 180 days onto the processing of acomplaint.  In no event can an investigation continue beyond 360 days.(8)  29 C.F.R. § 1614.106(e)(2).

The agency may also extend the time period or any period of extension for up to 30 daysto sanitize a complaint file containing information classified pursuant to Executive OrderNo. 12356, or successor orders, in the interest of national defense or foreign policy.  29C.F.R. § 1614.108(e).

The agencies in this survey largely used contract investigators.  The 2003 Annual Reportshows that 12 agencies conducted no investigations; 56 agencies used only contractinvestigators; 27 agencies (including the U.S. Postal Service) either investigated with theirown staff or used a combination of in-house staff and contractors.

EEOC has identified several factors which it has found impact the quality and timelinessof EEO investigations.  For each of the agencies identified below, investigations wereeither sharply reduced in average time from 2001 to 2003, or consistently averaged fewerthan 180 days from 2001 - 2003:

- Timely Contract Procurement Hastened the Start of the Investigation  A common problem which resulted in extended investigation times involveddelays in the procurement stage for contract investigators.  Among thoseagencies with success in conducting timely investigations, some the FederalCommunications Commission (FCC), General Services Administration(GSA), the National Gallery of Art (NGA) and Smithsonian awardedcontracts on a case-by-case basis, and usually within five days ofacceptance of the complaint.  The Department of Health and HumanServices (HHS) and TVA benefitted from executing blanket purchaseagreements  (one agreement provided for many investigations at a set rate). 
- Short Time Frames in Contracts Lead to Quicker Investigations  Ten agencies DFAS, FCC, GSA, HHS, National Archives and RecordsAdministration (NARA), NASA, NGA, Smithsonian, State and TVA reportedthat their contract terms required a short turn-around for delivery of thereport of investigation, ranging from 45 days to 120 days of assignmentreceipt.  Additionally, complaints managers at NARA, Smithsonian, State and TVA had timeliness elements included in their performance plans for delivery ofthe completed investigation. 
- Agency Complaints Manager Involvement Essential to Vendor Performance  Some agencies (FCC, GSA, NGA, and State) laid the groundwork for theinvestigator by obtaining documents and calling employees to notify themthat they would be interviewed by the investigator.  Others (GSA andSmithsonian) required weekly status reports from investigators, includingsubmission of an investigative plan and all investigative questions, alongwith a list of witness contacts and document requests.  Coordination of theseactivities by the complaints manager, and constant monitoring of thevendor's progress helped the agency to produce a timely, quality workproduct. 
- Incentives/Penalties Motivate Vendors to Perform  Some agencies reported including penalty provisions in contract termsproviding that the vendor would not earn as much if the investigation wasuntimely.  One agency (HHS) applied an "interruption schedule" to contracts,to account for complainants who would amend or withdraw their complaints.  This "interruption schedule" allowed the agency to account for the newlycreated or suddenly diminished work for the investigator without executinganother contract.  If a complaint was amended before the investigatorcompleted the complainant's affidavit, the agency would pay an additional15% on the contract, to account for the additional work the investigatorwould have to do to collect information on the amended claim.  If a complaintwas amended at a point beyond completion of the complainant's affidavit,the agency would pay an additional 60% to account for the additional work,and if the investigation was completed, but not yet copied or delivered, theagency would pay an additional 90% to account for the additional work toinvestigate the amended claim.  A similar schedule applied to withdrawals: if a complainant withdrew acomplaint after the investigator completed the complainant's affidavit butbefore other work was completed, the agency would pay 15% of the contract. If the complainant withdrew the complaint beyond completion of thecomplainant's affidavit but before completion of the investigation, the agencypaid 60% of the contract, and if the complainant withdrew the complaint afterthe investigation was completed but before copying and delivery wascompleted, the agency paid 90% of the contract. 
- Fees-for-Services Motivate Better Behavior By Program Managers  A number of agencies (DFAS, GSA, NARA and Smithsonian) had a fee-for-service arrangement with the program offices from which the complaintarose.  This arrangement allowed the EEO office to charge the cost of theinvestigation back to the program office.  Three agencies (GSA, NARA, andSmithsonian) reported that, in their experience, this arrangement motivatedthe managers in the various program offices to think about their actionsbefore they acted, and provided them an incentive to resolve matters earlyin the process before costs increased.  State reported that while the EEOoffice absorbed the cost of the investigation, it charged the cost of asettlement or award to the program office where the complaint arose.  Bydoing so, managers were able to see that settlement costs were low whencompared with costs awarded by EEOC; this provided additional incentivefor settlement. 
- Timely Legal Sufficiency Reviews Help Ensure A Quality Work Product  All agencies reported that they reviewed investigations for the quality of the work product.  FCC, GSA, HHS, NARA, NGA, Smithsonian, and TVAexpected a 5-day turn-around on a rejected work product.   DFAS and NASAgave the investigator up to 15 days to return a completed work product.  HHS did not pay the invoice until the investigation was completedsatisfactorily, and State had its own legal staff in the EEO office to review,among other things, the quality of contractor work-product.   GSA workedwith an individual from its Office of General Counsel who was dedicated tothe EEO Office as a "firewall counsel."  This individual provided advice toGSA's EEO Office independent of the Office of General Counsel, and did nottake an advocacy position on behalf of the agency. 

### FINAL AGENCY ACTIONS

For a complaint which has not been amended, where the parties do not participate inalternative dispute resolution (ADR), and which does not go to hearing, the shortestamount of time for processing to final agency action would be approximately 270 days: 

- Short Time Frames Produced Quick Results  Agencies in our survey which produced timely final decisions reported thatthey used a combination of in-house staff and contract workers to producethe final decisions.   For example, DoDEA (15 final decisions issued withinan average of 193 days of the regulatory trigger) divided the writing workbetween employees and contractors, and had check-writing authority foramounts under $2500.  As a result,  DoDEA was able to quickly contract witha vendor when necessary.  The terms of the contract were 30 days.  
- One-Stop Shopping For Investigations and Final Decisions Produced                        Quick Results  FCC (10 final decisions issued within an average of 82 days of theregulatory trigger) reported that the same contractor who investigated thecomplaint also wrote a draft of the final decision.  FCC routinely paidinvestigators an extra 16% of the contract to draft a final decision which wasthen delivered along with the report of investigation.  If the complainantrequested a hearing, the final decision was not used, but if the complainantrequested a final decision, then after review and consideration byappropriate staff within the agency, the agency could issue the final decisionquickly. 
- Eliminating Backlog Key to Improved Average Processing Times  Several agencies reported that their success in eliminating the backlog waskey to producing timely decisions.  These agencies focused their resourceson backlog projects, and once the very oldest cases were cleared from the     docket, average processing times reduced dramatically. 

###  EFFECTIVE COMPLAINTS TRACKING AND MONITORING SYSTEM

Under 29 C.F.R. § 1614.602(a), federal agencies have an obligation to report to EEOCinformation concerning pre-complaint counseling and the status, processing, anddisposition of complaints at such times and in such manner as EEOC prescribes.  TheCommission has mandated that agencies report to the EEOC all data relating to the EEOprocess in their Annual Federal Equal Employment Opportunity Statistical Report ofDiscrimination Complaints (the "462 Report"). 

As such, it is essential that agencies have a case tracking system to capture data for the462 Report.  Moreover, EEOC has found that an accurate, accessible, verifiable andcomprehensive case tracking system is essential for managing an effective and timelyprogram complaint processing program. 

Development of internal time frames for each step of the complaint process and regularmonitoring of them for compliance reduces complaint processing times.  The lack of aneffective and accurate data collection system increases complaint processing time, impairsmanagement's ability to identify and correct deficiencies in complaint processing, andobscures the actual work load of the EEO staff.

Almost all agencies reviewed in this study used a complaints tracking system.  Some usedelementary data bases such as spread sheets (DoDEA, FCC, NGA, TVA, and Treasury),one built its own data bases (Smithsonian), and some contracted with vendors to producecustom EEO complaint tracking systems with pull-down menus (Air Force, Army, DFAS,NARA, and NASA). 

Several were in the process of acquiring more efficient tracking systems (Air Force, DFAS,NASA, DOT, and Treasury).  Almost all agencies reported that constant monitoring of thetracking system helped their complaints managers follow the progress of a complaint andmonitor for problems.  No agency interviewed for this study reported sufficient satisfactionwith a complaints tracking system that we could recommend its use here.

An agency should regularly analyze the information captured by its complaint trackingsystem to determine where processing times exceed the applicable regulatory time frame. Such an analysis will enable the agency to effectively target and utilize its resources, holdrelevant management officials accountable for their performance, and reduce complaintprocessing times.

## CONCLUSION

Each of the agencies reviewed in this study established management controls overcomplaints processing.  The tools used by agencies were: 

(1) timeliness controls (timeliness elements in performance plans, short time     frames, incentives, and penalties in contracts, inclusion of timeliness elements in     office goals, use of blanket purchase agreements and interruption schedule     agreements to eliminate the need to execute amended contracts), 

(2) creative management (employment of early intervention resolution techniques,     rewards for employees who performed well and production of final agency action     simultaneously with report of investigation), and 

(3) quality controls (report of investigation sufficiency reviews completed     immediately upon receipt of report of investigation).  

Additionally, use of an efficient complaints monitoring and tracking system helped theagencies follow cases and identify problems as they arose.  Use of these tools appearsto greatly enhance an agency's ability to produce a timely, quality work product, andimprove the likelihood that the agency will meet its goal of maintaining an efficient, fair andimpartial complaint resolution process.

Interestingly, this study revealed that the size of the agency did not make a difference inhow, or whether, an agency achieved success.  Rather, the imposition of managementcontrols was essential  for effective performance for all agencies of all sizes.

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### Footnotes

1.    Additionally, a final decision should be issued within 60 days of notice from an administrative judge that a complainant has withdrawn a hearing request.  Id. 

2.   The United States Postal Service was not considered in this study.

3.     It should be noted that some of the agencies selected marginally exceeded regulatory time-frames, but the volume of their complaint processing suggested that they be consulted about their practices.

4.  Success in one or more areas did not necessarily result in overall success in achieving an efficient complaint processing system.  For instance, an agency may have excelled in producing a large number of investigations in a short time-frame, but may not have been timely in conducting EEO counselings, dismissing complaints or writing final decisions.

5.  Data prior to 2004 did not delineate counselings by those in ADR or those for which extensions were granted by the complainant so it is difficult to be completely certain whether an agency was actually timely if counselings continued beyond 30 days.  Therefore, in assessing agencies, we looked at both the 30-day and  the 90-day maximum to determine which agencies to examine in more depth.

6.% Workforce Seeking Counseling	**2001****2002****2003****State**1.31.20.8**National Workforce**1.741.631.41

7.  At the Smithsonian, the complaints manager must accept or dismiss a claim within 30 days; at the State Department, the legal staff in the EEO Office must do so within 10 days; and at the VA, the intake specialist will accept or dismiss a claim within 45 days.

8.  Generally, an investigation of a mixed case complaint conducted pursuant to 29 C.F.R. § 1614.302 must be completed before the 120-day time period expires for the agency to issue its final decision.

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*This page was last modified on December 1, 2004.*

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