United States General Accounting Office

GAO Report to the Honorable

Edolphus “Ed” Towns, Committee on

Government Reform, House of

Representatives

January 1999 U.S. DEPARTMENT

OF AGRICULTURE

Problems Continue to

Hinder the Timely

Processing of

Discrimination

Complaints

GAO/RCED-99-38

GAO United States

General Accounting Office

Washington, D.C. 20548

Resources, Community, and

Economic Development Division

B-281466 

January 29, 1999

The Honorable Edolphus “Ed” Towns

Committee on Government Reform

House of Representatives

Dear Mr. Towns:

Civil rights at the U.S. Department of Agriculture (USDA) has long been a

troubled area. Over the years, internal and external reports have described

problems in USDA’s delivery of services to program beneficiaries—such as

minority farmers—and in its treatment of minority employees. These

studies have also cited weaknesses in the Department’s overall

management of its civil rights programs.

In February 1997, the Civil Rights Action Team, composed of senior USDA

officials appointed by the Secretary of Agriculture, reported on its review

of civil rights issues throughout the Department.1

 Among other things, the

team found that (1) USDA lacked an organizational structure to support an

effective civil rights program, (2) USDA’s process for resolving

discrimination complaints about the delivery of program benefits and

services (program complaints)2

 was a failure, and (3) USDA’s system for

addressing complaints of employment discrimination (employment

complaints) was untimely and unresponsive. The team made numerous

recommendations to resolve these problems, one of which was to combine

the Department’s civil rights functions in one office that reports directly to

the Assistant Secretary for Administration—USDA’s top civil rights official.

This was done in March 1997.

The newly consolidated Office of Civil Rights (OCR) made one of its top

priorities the resolution of the Department’s large backlog of program and

employment complaints. OCR defines backlog complaints as complaints

that were active before November 1, 1997; complaints filed with OCR on or

after November 1, 1997, are considered “new” complaints. New program

complaints are processed under procedures and time frames that were

developed in conjunction with a recommendation in the Civil Rights

Action Team’s report. Employment complaints—both new and backlog

cases—are to be processed under the governmentwide regulations that

1

Civil Rights at the United States Department of Agriculture: A Report by the Civil Rights Action Team,

U.S. Department of Agriculture (Feb. 1997).

2

A program complaint might allege, for example, that a USDA official discriminated against a farmer

on the basis of race by failing to process a loan application.

Page 1 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

govern equal employment opportunity complaints. These regulations

require, among other things, that a federal agency complete an

investigation of a complaint and issue an investigation report within 180

days from the date the complaint was formally filed.3

Concerned about allegations of management weaknesses and of

discrimination in the Department, you asked us to (1) examine the

timeliness of OCR’s processing and closing of program and employment

discrimination complaints and (2) identify the reasons for delays in the

processes.

Results in Brief USDA’s efforts to process discrimination complaints are falling short of its

goals for closing its complaint backlog—one of the Secretary’s top

priorities. The dates USDA established for closing its backlogs of program

and employment discrimination complaints have been extended several

times beyond its initial target date of July 1, 1997. As of October 1, 1998,

USDA had closed only 44 percent of its 1,088 backlog program cases and

64 percent of its 2,142 backlog employment cases. Its most recent goal was

to close all remaining backlog cases by December 31, 19984

—the fourth

deadline it has set for backlog program cases and its third deadline for

backlog employment cases. In addition, (1) many of USDA’s new program

cases are missing interim milestones and are therefore not on track for

being closed in a timely manner and (2) the time spent processing its

employment cases continues to far exceed federally mandated time

frames. For example, on October 1, 1998, 82 percent of the 397

employment cases being investigated by USDA had already exceeded the

180-day mandated time frame for investigations.

Although USDA has provided additional resources to enhance its

capabilities to address discrimination complaints, a number of problems

are impeding its efforts to process complaints more expeditiously. These

problems include such long-standing issues as continuing management

turnover and reorganizations in the Office of Civil Rights; inadequate staff

and managerial expertise; a lack of clear, up-to-date guidance and

procedures; and poor working relationships and communication within

the Office of Civil Rights and between the office and other USDA entities.

Furthermore, the Department is not consistently using alternative dispute

resolution techniques, such as mediation, to address workplace and other

3

The 180-day limit may be extended another 90 days in certain instances.

4

As of Jan. 20, 1999, USDA had not responded to our request for information on whether or not it had

met its Dec. 31, 1998, goal of closing its backlog of program and employment complaint cases.

Page 2 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

disputes before they become formal employment complaints. Federal law

and regulations encourage the use of alternative dispute resolution in

resolving federal workplace and other disputes.

Background The past few years have been a period of upheaval for civil rights at USDA.

During this period, an increasing number of USDA employees have filed

discrimination complaints. Also, in December 1996, a group of minority

farmers demonstrated in front of the White House to protest what they

viewed as systemic, long-standing discrimination in the Department’s

agricultural lending programs. In October 1997, minority farmers filed a

class action lawsuit that charged USDA with discrimination in lending and

other departmental farm programs between 1983 and 1997 and failure to

investigate discrimination complaints.5

 In addition, recent legislation

would enable past complainants either to bring suit or to obtain a

departmental hearing on the record. This legislation waives the statute of

limitations6

 for suits alleging discrimination between 1981 and 1996 that

were filed with the Department before July 1, 1997.

Concerned about allegations of discrimination, the Secretary of

Agriculture, in December 1996, appointed the Civil Rights Action Team to

review civil rights issues and develop recommendations to address

institutional problems. The team held a dozen “listening sessions” with

USDA customers and employees throughout the country before issuing its

report in February 1997. The report made 92 recommendations to address

four major problem areas: (1) the organizational structure of civil rights,

(2) the lack of management commitment to civil rights, (3) program

delivery and outreach, and (4) workforce diversity and employment

practices. Shortly after the report was issued, the Secretary established a

Civil Rights Implementation Team to implement the report’s

recommendations. Several months later, in testimony before the House

Committee on Agriculture, the Secretary stated that his goal was to get

5

Pigford v. Glickman, Civil Action No. 97-1978 (D.D.C. filed Oct. 23, 1997). On Oct. 9, 1998, the district

court certified that the persons bringing the suit could represent the class of minority farmers, thereby

allowing the case to continue as a class action. A multimillion-dollar settlement agreement was

announced on Jan. 5, 1999. According to USDA, the district court judge presiding over the case is

expected to give final approval to the agreement in March 1999. USDA’s civil rights investigative unit

was dismantled in 1983. After that, USDA agencies conducted preliminary inquiries of program

discrimination complaints that had been filed against them. However, in May 1997, OCR assumed

authority for investigating cases.

6

The Omnibus Consolidated and Emergency Appropriations Act, 1999 (P.L. 105-277, Oct. 21, 1998,

division A, sec. 101(a), title VII, section 741). The statute of limitations limits the time a plaintiff may

bring an action in court against a defendant.

Page 3 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

USDA out from under the past and have it emerge as the federal civil rights

leader.

Regarding organizational issues, the action team’s report noted that USDA’s

civil rights program had been in a persistent state of chaos because of

numerous changes since the 1980s. The last reorganization prior to the

team’s report had occurred in October 1995, when departmental civil

rights responsibilities were divided between two offices with two separate

leaders—one office was responsible for employment and program

discrimination complaints and one for all remaining civil rights issues,

including the development of civil rights policy. In addition, most USDA

agencies had their own civil rights offices that performed some

complaint-processing functions. According to the report, this

fragmentation of responsibilities left employees and customers (such as

farmers) confused about where to go for help.

In March 1997, USDA consolidated its departmental civil rights functions

under a new Office of Civil Rights (OCR). While OCR has overall

responsibility for the Department’s civil rights program, USDA’s agencies

continue to have their own civil rights offices that are responsible for

ensuring agency-level compliance with civil rights laws and regulations.7

OCR’s fiscal year 1999 budget is about $13 million, about the same as in the

previous year. As of October 1, 1998, OCR had about 120 staff. OCR is

undergoing another reorganization that was expected to be effective

January 15, 1999.8

 Under this reorganization, the office will consist of nine

divisions, as shown in figure 1.

7

USDA has 12 agency civil rights offices—in some instances, several agencies in a mission area share a

civil rights office. The directors of these offices report to their agency or mission area heads but

receive guidance and oversight from OCR.

8

As of Jan. 20, 1999, USDA had not responded to our request for information on whether the

reorganization was effective on Jan. 15, 1999.

Page 4 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

Figure 1: Proposed Reorganization of USDA’s Office of Civil Rights

Director Policy & Planning

Division

Deputy 

Director

Employment

Deputy 

Director

Program

Deputy 

Director

Systems &

Administration

Agency

Support &

Special

Emphasis

Employment

Complaints

Program

Adjudication

Program

Investigations

Program

Compliance Accountability

Tracking,

Application

& Analysis

Resource

Management 

Staff

Source: USDA’s Office of Civil Rights.

The reorganization will add three new divisions to the current

structure—the Program Adjudication, Program Compliance, and Resource

Management Staff divisions.9

 It also creates a new position of Deputy

Director for Systems and Administration, which was filled in

September 1998. The Program Investigations and Adjudication Divisions

will be responsible for processing program complaints; the Employment

Complaints Division will continue to be responsible for processing

employment complaints. While there are similarities in some of the steps

followed in processing the two types of complaints (such as conducting an

investigation and determining whether discrimination has occurred), the

specific procedures used to process them and the laws and regulations

that govern them are different.

9

The Program Adjudication Division will review reports of investigations and draft final agency

decisions on program complaints; the Program Compliance Division will conduct employment and

program compliance reviews; and the Resource Management Staff Division will be responsible for

such issues as contracting, budget, travel, and training. Prior to the reorganization, compliance reviews

and adjudications were part of the Program Investigations Division. Several staff positions (e.g.,

special and confidential assistants, secretaries, and an agricultural economist) are not shown on the

organizational chart.

Page 5 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

Program Discrimination

Complaints

USDA is responsible for enforcing many statutes, regulations, and executive

orders that prohibit discrimination on such grounds as race, color,

national origin, and age in programs or activities that it conducts

(conducted programs) and in programs for which it provides federal

financial assistance (assisted programs). USDA’s conducted programs (such

as farm loan programs) are administered directly to participants through

agency offices; USDA’s assisted programs are those in which nonfederal

organizations (such as the states) are responsible for providing federal

assistance to participants, such as those in the Food Stamp Program.10 OCR

is responsible for processing complaints for both conducted and assisted

programs, but the great majority of its cases arise from conducted

programs. However, other than requiring that complaints generally be filed

within 180 days from the date the person knew or should have known of

the alleged discrimination (conducted programs) or the date of the alleged

discrimination (assisted programs), USDA’s codified regulations provide

few specifics on the program complaint process.11

On November 1, 1997, OCR began implementing a new system for

processing discrimination complaints in conducted programs. For

complaints accepted on or after that date, OCR requires that they be

resolved (through dismissal, withdrawal, settlement, or decision) within

180 days from the date the complaint is accepted. The system also

establishes interim time frames, including a requirement that the USDA

agency against which the complaint was filed provide OCR, within 24 days,

its perspective on the complainant’s allegations.

As of October 1, 1998, OCR had 611 cases remaining in the program

complaint backlog and 193 new program cases. In fiscal year 1998, OCR had

about 30 staff assigned to processing new and backlog program

complaints. The vast majority of program complaints come out of the

programs conducted by USDA’s Farm Service Agency (FSA) and Rural

Housing Service. As of October 1, 1998, 65 percent and 23 percent of new

open cases were related to FSA and Rural Housing Service programs,

respectively, as were 61 percent and 21 percent of open backlog cases.

10According to an OCR official, most assisted program complaints concern (1) alleged violations of the

Fair Housing Act (42 U.S.C. 3601-3619) filed against participants in housing-related activities, which

are administered by USDA and investigated by the Department of Housing and Urban Development, or

(2) allegations against USDA’s Food and Nutrition Service programs, such as the Food Stamp Program.

11In addition, a person who believes he or she has been discriminated against in a USDA-assisted or

-conducted program may file a case in court instead of filing an administrative complaint.

Page 6 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

Employment

Discrimination Complaints

Several statutes protect federal employees against discrimination in

employment—particularly title VII of the Civil Rights Act of 1964, as

amended, which makes it illegal to discriminate in employment on the

basis of race, color, religion, sex, or national origin.12 Employment

discrimination complaints within USDA are to be processed under the Equal

Employment Opportunity Commission (EEOC) regulations that apply to

executive branch employees. These regulations also establish processing

time requirements for each stage of the complaint process.

Under EEOC regulations, before filing a formal complaint, employees who

believe that they have been discriminated against must first contact an

Equal Employment Opportunity (EEO) counselor within 45 days of the

alleged discrimination to attempt to informally resolve the complaint.13 If

this effort is unsuccessful, USDA employees can file a formal complaint

with OCR, which either accepts or dismisses it. OCR may dismiss a

complaint if it was improperly filed—for example, if it was not first

brought to the attention of an EEO counselor or formally filed within

prescribed time limits.14 If OCR accepts the complaint, it investigates and

issues an investigation report. Under EEOC regulations, OCR must generally

complete these activities within 180 days from the date of the

complainant’s formal filing.

After receiving the investigation report, an employee who pursues a

complaint has 30 days to either (1) request a hearing before an EEOC

administrative judge, who issues a recommended decision that the agency

can accept, reject, or modify in making its final decision or (2) forgo a

hearing and ask for a final agency decision. When there is no EEOC hearing,

regulations require that the complaint be decided within 270 days from the

filing date; with an EEOC hearing, the complaint must be decided within 450

days from the filing date. An employee dissatisfied with an agency decision

to dismiss a complaint or with a final agency decision may appeal to EEOC

or file a civil action in a federal district court. Figure 2 shows the process

and time frames for federal employment complaints as prescribed in EEOC

regulations.

12Other statutes protect federal employees from discrimination in such areas as age and disability.

13In USDA, EEO counselors work in agency civil rights offices and attempt to informally resolve the

employment complaint. Also, in certain instances, the 45-day limit may be extended.

14Other reasons for dismissal include the inability to locate the complainant, the complainant’s failure

to provide information to the agency, or the complainant’s failure to accept a full settlement offer. In

addition to dismissal, employment complaint cases can be closed (1) if the complainant withdraws the

case, (2) through settlement, or (3) through a final agency decision on the case’s merits.

Page 7 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

Figure 2: Process and Time Frames for Federal Employment Complaints

270 days allowed from date a complaint is filed to an agency decision without a hearing

Complaint

filed

Does agency

accept or 

dismiss?

Accept Complaint

investigated

180 days to dismiss/accept and investigate complaint 180 days for a

hearing

Dismiss

Possible

complainant

appeal

to EEOC or 

court suit 

EEOC

hearing 

Final agency 

decision 

No

Does

complainant 

request

hearing?

30 days to request

hearing

60 days for 

agency

decision

No standard 

time

Yes

Note: If a complainant requests an EEOC hearing, an additional 180 days are allowed for the

hearing, for a total of 450 days for the entire process.

Source: GAO’s analysis of 29 C.F.R. part 1614 and EEOC Management Directive 110.

While OCR has categorized its employment cases into backlog cases and

new cases, all employment cases are to be processed according to EEOC

regulations.

As of October 1, 1998, OCR had 761 employment complaint cases remaining

in the backlog and 701 new cases, for a total of 1,462 cases in its

employment complaint inventory. The largest percentage (about

21 percent) of these cases were from the Forest Service, USDA’s largest

agency, followed by the Animal and Plant Health Inspection Service,

which accounted for 14 percent. OCR has about 30 staff members

responsible for processing employment complaints. Currently, these

complaints are processed along functional lines, with staff specializing in

various phases of the complaint process, such as acceptance/dismissal,

report of investigation, and adjudication (drafting a final agency decision).

Since the early 1990s, both the federal and private sectors have seen a

dramatic increase in the number of workplace discrimination complaints

and the cost and time involved in trying to resolve them. To address these

complaints, private companies and federal agencies, including USDA, have

turned to alternative dispute resolution (ADR) as a way of resolving

Page 8 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

workplace problems.15 ADR includes a variety of dispute resolution

techniques that usually involve intervention or facilitation by a neutral

third party. Examples of ADR techniques include mediation, arbitration,

and dispute resolution boards.

USDA Is Not

Processing Cases in a

Timely Manner

OCR is not processing discrimination complaints within its own deadlines

for program complaints or within the EEOC requirements for employment

complaints. OCR did not meet the original goal of resolving its backlog of

program and employment complaints within 120 days after the issuance of

the Civil Rights Action Team’s report, and its deadline for closing the

backlog of complaints has been extended several times. In addition,

(1) OCR’s new program cases are often missing interim milestones and are

not on track for being closed in a timely manner and (2) employment cases

are continuing to exceed EEOC time frames.

Substantial Backlogs

Remain, and OCR Has

Extended Deadlines for

Closure Several Times

As of October 1, 1998, OCR had closed only 477 (or 44 percent) of its

backlog of 1,088 program cases and 1,381 (or 64 percent) of its backlog of

2,142 employment cases. OCR’s goal was to close all remaining backlog

cases by December 31, 1998—its fourth deadline for backlog program

cases and its third deadline for backlog employment cases.

The initial goal of July 1, 1997, for closing the backlog of program cases

was extended first to July 1, 1998, and then to October 1, 1998. Table 1

shows the status of the backlog program cases as of July 1 and October 1,

1998. The initial date of July 1, 1997, is not included because OCR could not

determine the number of cases in its program backlog until November 1,

1997.

Table 1: Status of Backlog Program

Cases, July 1 and October 1, 1998 Cases closed Cases remaining

Deadline Number Percent Number Percent

July 1, 1998 400 37 688 63

Oct. 1, 1998 477 44 611 56

Source: GAO’s analysis of USDA’s data.

15In a previous report, we noted that, overall, ADR has been more widely available within private firms

than among federal agencies. See Alternative Dispute Resolution: Employers’ Experiences With ADR

in the Workplace (GAO/GGD-97-157, Aug. 12, 1997).

Page 9 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

In September 1998, USDA’s Office of Inspector General (OIG) reported that

OCR had not made significant progress in reducing its backlog of program

complaints nor attained the efficiency needed to systematically reduce its

caseload.16 To address this impasse, the OIG recommended that the

Secretary convene a complaint resolution task force (independent of OCR)

to immediately assume control of the backlog.

In response, OCR established a task force, consisting of six teams, that

began work on October 19, 1998, to review the backlog of open program

cases17 and some closed program cases that may not have been adequately

processed and reviewed. Four teams were to review about 250 backlog

open cases (most of which had been investigated) to recommend

resolution actions, and two were to review about 500 backlog cases that

were closed administratively.18 Each team includes agency staff familiar

with the agency’s programs as well as OCR staff and a legal adviser from

the Office of General Counsel (OGC). According to the Director of OCR, the

groups’ mandate was to close all backlog cases under review by

December 31, 1998.

With regard to backlog employment cases, USDA’s goal for closure was also

December 31, 1998. As with program complaints, July 1, 1997, was the

initial target date for resolving backlog employment cases. When this date

was not met, a second date of July 1, 1998, was established. As of

October 1, 1998, 1,381 (or 64 percent) of the 2,142 backlog employment

cases, had been closed. OCR’s Employment Complaints Division has been

focusing its resources on processing the backlog cases in order to meet its

December 31 goal.

Processing of New

Program Complaints Often

Falls Short of Interim

Goals

As discussed, effective November 1, 1997, USDA established the goal of

closing each new program complaint within 180 days as well as interim

time frames for processing these complaints. At any time in the process, a

complainant may withdraw or settle the complaint.

16Evaluation of the Office of Civil Rights’ Efforts to Reduce the Backlog of Program Complaints

(Evaluation Report No. 60801-1-Hq, Sept. 1998). This report was the OIG’s fifth evaluation of USDA’s

effort to reduce the backlog of program complaints and to improve the complaint-processing system.

17Open cases that involve complainants who are part of the class action lawsuit were not to be

reviewed by the task force.

18A case may be closed administratively if it fails to comply with legal or procedural requirements—for

example, if the complainant fails to respond to OCR’s request for additional information or is not a

member of a protected class.

Page 10 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

Before a complaint is accepted as a new complaint, OCR reviews it to

determine its basis (such as racial discrimination) and whether it falls

within OCR’s jurisdiction. If more information is needed, OCR may request it

from the complainant. Even though several months may be spent

obtaining and reviewing information from the complainant, OCR does not

count this time as part of the 180 days that it has to close new cases. OCR

then accepts the complaint and determines if the case should be closed

administratively or processed (if, for example, it should be investigated).

Cases closed for administrative reasons are often shown in OCR’s reports

as having been closed on the same day they were accepted as a complaint.

For example, as of October 1, 1998, 101 of the 130 new program cases OCR

had closed were reported as closed on the first day of the process.

OCR’s operations manual for program complaints, developed by the Civil

Rights Implementation Team, includes time frames for the stages in the

program complaint process, as shown in table 2.

Table 2: Stages in the Program

Complaint Process and Associated

Time Frames

Processing stage Number of calendar days

OCR acknowledges complaint 3

Agency charged with discrimination

responds to OCR 24

OCR conducts preliminary inquiry 6

OCR (1) closes case through dismissala or

referral or (2) proceeds to investigation 5

OCR investigates and drafts report 49

OCR director and OGC, if requested, review

report 14

OCR director issues decision on caseb 7

Note: Although OCR’s operations manual calls for offering the complainant a mediation option at

the time the complaint is acknowledged, OCR has not offered mediation, and this stage is not

included in the table. In addition, it should be noted that while the manual calls for most cases to

be resolved within 180 days, the cumulative number of days in the complaint process stages total

less than 180 days.

aThis stage may take up to 14 days if dismissal is under consideration to ensure a fully informed

decision and adequate documentation of the reasons for dismissal.

bWhen discrimination is found in cases involving a loan subject to the Equal Credit Opportunity

Act, damages must be determined before a final decision is made. The damages determination

and decision take an estimated 64 days.

Source: USDA.

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B-281466 

Even though OCR has been using this new system for over a year, many of

its cases are still in the early stages of the process—as of October 1, 1998,

44 percent were in the agency response stage. Many of these complaints

have already missed the time frames established for the initial stages, with

serious delays occurring in the 24-day agency response stage. (See table

3.) The Acting Assistant Secretary for Administration expressed concern

that the agencies’ failure to respond in a timely manner may hinder OCR’s

efforts to achieve its goal of processing complaints within 180 days. As of

October 1, 1998, 69 cases had exceeded the 180-day goal for closing new

program cases.19

Table 3: Timeliness of Agency

Responses, as of October 1, 1998

Agency

responses

requested by

OCRa

Agency

responses

received on

time (within 24

days)

Agency

responses

received late

(more than 24

days)

Agency

responses

overdue

Average days

to receive

response

186b 3 69 85 91

Note : The agency responses include both open and closed cases.

aAn agency response is to include, among other things, (1) a statement of agreement or

disagreement with the allegations and an explanation for any disagreements; (2) the agency’s

perspective of the events that led to the filing; (3) the criteria the agency used to justify its

position; and (4) additional relevant material, such as the complainant’s file.

bIn addition, 23 of the requested responses are not yet due, and 6 cases were closed without

receiving the requested agency responses.

Source: GAO’s analysis of USDA’s data.

Although fewer cases have completed the 49-day investigation stage,

delays are occurring here as well. As of October 1, 1998, the five cases that

had completed this stage had spent an average of 150 days in it.

USDA is currently revising its program complaint process. According to the

Director, as of November 20, 1998, departmental regulations describing the

revised program have been cleared for issuance and are awaiting the

Secretary’s signature.20 The revised program complaint process is

expected to go into effect by spring 1999.

19These include cases that are still open as well as those that have been closed.

20In its Jan. 20, 1999, comments on our draft report, USDA stated that it is currently revising the

departmental regulation that documents the processing of complaints of discrimination. See app. II for

the complete text of USDA’s comments.

Page 12 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

USDA’s Record for

Processing Employment

Complaints Has Been

Among the Worst in the

Federal Government

USDA has been unable to process employment complaints within the

regulatory time frames. Its record for processing complaints is particularly

troublesome when compared over the years with the average processing

times for the rest of the federal government. For example, in fiscal year

1991, USDA’s average processing time for employment complaints was 675

days, over twice the governmentwide average of 341 days.21 In fiscal year

1997—the latest period for which governmentwide data are available from

EEOC—USDA’s average processing time was 669 days, compared with the

governmentwide average of 391 days.

Similarly, in fiscal year 1997, USDA took an average of about 1,100 days, or

about 3 years, to decide employment cases in which there was no EEOC

hearing—over 4 times as long as the 270-day limit and over twice the

governmentwide average of 529 days. Furthermore, 98 percent of USDA’s

investigations exceeded the 180-day EEOC standard for completing an

investigation from the date the complaint was filed, compared with a

governmentwide average of 76 percent of cases exceeding the standard.

(See table 4.)

21Overall processing time is the average time it takes to close cases through dismissal, withdrawal,

settlement, or final agency decision with or without an EEOC hearing.

Page 13 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

Table 4: Time Taken by USDA to

Investigate and Close Employment

Complaint Cases Compared With

Other Federal Agencies, Fiscal Year

1997

Agency

Number

of cases in

inventory at close

of fiscal year

Percent of

cases

exceeding

180 days

through

investigationa

Average

days to decide

a case without

hearingb

Veterans Affairs 2,749 43 574

Navyc 2,146 79 734

Justice 2,020 66 1,016

Armyc 1,882 48 313

USDA 1,494 98 1,101

Treasury 1,467 45 544

Air Forcec 1,301 63 244

Transportation 815 71 496

Health and Human

Services

776 67 893

Governmentwide 34,286 76 529

Note: Comparison data are provided for the eight agencies with case inventories closest in size to

USDA’s (four have more cases, and four have fewer).

aEEOC regulations stipulate that agencies take no more than 180 days to complete an

investigation, including the time the agency takes to decide whether to accept or dismiss the

case.

bAgencies have 270 days to issue a final agency decision in a case without an EEOC hearing

(180 days to accept/dismiss and investigate, 30 days for the complainant to decide whether to

request an EEOC hearing, and 60 days for the final agency decision).

cThe data for military agencies represent complaints by civil service employees.

Source: GAO’s analysis of EEOC’s data.

In addition to using EEOC’s governmentwide data, we also used USDA’s

employment complaint data from its own database. Our analysis of USDA’s

open employment cases shows that most are exceeding EEOC standards for

processing times. We did not distinguish between new and backlog

employment cases, since they are both processed under the same

EEOC-regulated system and are considered to be part of USDA’s inventory of

open employment cases. New and backlog employment cases are

distinguishable from one another only because they were filed either

before or after November 1, 1997.

Table 5 shows the number of cases in the investigation and final agency

decision stages as of October 1, 1998. Of the cases that have been accepted

and are being investigated, 82 percent (325 cases) had already exceeded

Page 14 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

the 180-day limit, with 405 days being the average time that cases had been

in this stage. Similarly, cases had been in the final agency decision stage22

for an average of 180 days—120 days more than the 60 days required by

EEOC regulations. These are cases still pending in their respective

stages—thus, the final number of days to complete the stages will be

higher than that shown in table 5.

Table 5: Cases in Investigation and

Final Agency Decision Stages of the

Employment Complaint Process, as of

October 1, 1998 Processing

stage

Number of

cases in

stage

Average

number of

days cases

have been

in stage

Number of

cases

exceeding

EEOC

standard

Percent of

cases

exceeding

EEOC

standard

EEOC

standard

time frame

Investigationa 397 405 325 82 180

Final agency

decisionb

231 180 146 63 60

aIncludes the time taken by OCR to accept a case and assign it to an investigator and excludes

cases that are still in the acceptance/dismissal phase.

bExcludes cases in which the final agency decision is being made after an EEOC hearing.

Source: GAO’s analysis of USDA’s data.

Several Factors

Hinder Efforts to

Improve Timeliness

Although USDA has taken a number of actions to strengthen its civil rights

processes, such as providing additional resources for its program

complaint process, several problems are impeding its efforts to process

complaints more efficiently. First, conditions that caused delays in the

past continue to undermine current efforts—continuing management

turnover and reorganizations in OCR; inadequate staff and management

expertise; a lack of clear, up-to-date guidance and procedures; and poor

working relationships and communication within OCR and between OCR

and other USDA entities. Second, USDA and its agencies are not consistently

using alternative dispute resolution (ADR) techniques with a neutral third

party to address workplace and other disputes. ADR has the potential to

reduce the number of employment complaints, thereby lessening OCR’s

administrative burden and the time required to process these complaints.

Management Turnover and

Reorganizations in OCR

Continue to Create

Instability

OCR’s management turnover and reorganizations continue to be serious

obstacles to improving the management of USDA’s civil rights program.

These problems are long-standing. Numerous reorganizations since the

1980s had left USDA’s civil rights programs in a “persistent state of chaos,”

22Excludes cases where final agency decision is being made after an EEOC hearing.

Page 15 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

according to the Civil Rights Action Team’s report, which also noted that

the turnover of civil rights directors had contributed to the disarray.

Similarly, management changes in the civil rights office have been

frequent: Since October 1990, the office has had eight directors; between

1991 and 1998, six individuals served as Chief of the Program

Investigations Division; and since January 1993, the Employment

Complaints Division has had eight chiefs.23 Furthermore, the Department’s

civil rights program has been reorganized three times since 1993, resulting

in numerous changes at the division and staff levels. OCR’s latest

reorganization was expected to be completed by mid-January 1999.

According to USDA civil rights officials and OIG reports, the instability

resulting from this ongoing cycle of management turnover and

reorganizations has affected the quality of OCR’s work and contributed to

poor morale and low productivity. For example:

• Previous civil rights directors have had many agendas and different

priorities, according to the Acting Assistant Secretary for Administration.

The resulting lack of consistency, she believes, is a major problem

affecting the quality of OCR’s work. Furthermore, the frequent changes in

leadership in the Employment Complaints Division have been a major

cause of the delays in processing employment discrimination complaints.

• Keeping staff motivated is difficult because of continually changing

priorities, according to a former Chief of the Employment Complaints

Division. In addition, a manager from that division said that management

changes have created an environment in which staff are not held

accountable for their work.

• The OIG’s September 1998 report stated that staff who process program

complaints had expressed concern about the impact of management

turnover. Staff felt that the turnover resulted in a lack of consistent

direction and in a changing vision of OCR’s purpose.

• An EEO counselor said that OCR was unable to finalize and issue policies

because of the lack of continuity resulting from ongoing reorganizations.

In addition to these problems, USDA officials said that management and

staff (particularly those involved in processing program complaints) have

been intermittently diverted from their day-to-day activities to respond to a

court order resulting from a lawsuit brought against USDA by minority

farmers. For example, the OIG reported in September 1998 that, as part of

23These positions have been held in either a permanent or an acting capacity.

Page 16 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

the court order, OCR staff had to collect and copy over 5 million pages of

county files over a 2-week period in November 1997.

Inadequate Expertise Has

Contributed to Processing

Delays

Inadequate staff and management expertise continues to be a significant

obstacle to improving the timely processing of discrimination complaints,

according to USDA civil rights officials. The Civil Rights Action Team’s

report noted that USDA employees generally viewed the Department’s civil

rights offices as a “dumping ground” for many staff who had settled their

EEO complaints. The issue of inadequate staff expertise surfaced on many

occasions during our review. For example:

• A former OCR director stated that while his priority on becoming director

in March 1997 had been to resolve complaints, he soon realized that the

office lacked the necessary staff mix and expertise to effectively carry out

its functions. He said he ultimately spent much of his time hiring new staff

to build up capabilities for processing program complaints, including 14

permanent investigators, 14 temporary investigators, and a number of

economists, statisticians, and computer specialists. Shortly before leaving

USDA in May 1998, he told us that the processing of employment complaints

was taking too long and that more training was needed to improve staff

efficiency in the Employment Complaints Division.

• Several USDA officials said that low productivity was a problem in the

Employment Complaints Division—they attributed this to employees not

having adequate training or the right skills to function efficiently. These

concerns were reiterated by a former deputy director for employment,

who said that low employee productivity, low performance expectations,

and inadequate training had contributed to delays in processing

employment complaints.

• In September 1998, the OIG reported that staff hired in November 1997 as

investigators in the Program Investigations Division were made

adjudicators several months later because of bottlenecks in the

adjudication process. However, these individuals were not trained in

reviewing investigation reports and writing final agency decisions.

Furthermore, they had virtually no knowledge of the complexities of USDA

programs. As a result, OGC has had to return numerous drafts of final

agency decisions prepared by the adjudicators for extensive revisions.

The OIG also reported that high-level civil rights officials lacked civil rights

experience or expertise. For example, the former OCR director, appointed

in March 1997, was experienced in USDA programs but lacked a strong civil

rights background. Similarly, OCR’s former deputy director for programs

Page 17 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

had an advanced degree in statistics but lacked a background in civil

rights.

According to the Acting Assistant Secretary, upgrading management and

staff resources within OCR is her top priority. She cited inadequate staff

expertise as an initial obstacle in resolving the backlog of program

complaints and the lack of qualified staff as a significant contributor to

delays in processing employment complaints. Furthermore, even though

many new staff had recently been hired (particularly in the Program

Investigations Division), many individuals still lack the skills needed for

their positions. To address this issue, she and the Director of OCR have

developed a list of 36 staff members (almost one-third of OCR’s staff) that

she described as being inappropriately placed in their current positions.

These staff were identified by OCR managers or had requested transfers out

of OCR. As of mid-November 1998, OCR was working with USDA’s personnel

office to develop procedures for placing these individuals in other

positions within USDA. The Director said that all 36 positions will be refilled

with qualified individuals.

While managers cited a need for additional training to build expertise,

funding for training has been scarce. For example, managers in the

Employment Complaints Division told us they had no budget for training

and that staff had received minimal training in the past 3 years. The chief

of that division gave us a detailed list of training that managers and staff

felt was needed to improve their skills; however, OCR was unable to fund

the training requests. Similarly, for staff in the Program Investigations

Division, the OIG reported in September 1998 that training for specific job

responsibilities appeared to be lacking.

The Director of OCR said that during the summer of 1998, OCR’s Policy and

Planning Division provided in-house training on a range of topics related

to civil rights. According to the Director, however, the training was

inadequate and did not thoroughly address all aspects of the process for

handling discrimination complaints. She plans to hire a training

coordinator to develop a comprehensive program using outside

contractors.

Clear, Up-To-Date

Guidance and Procedures

Are Lacking

USDA does not have clear, up-to-date guidance and procedures for its

program or employment complaints. Specifically, USDA has not issued

departmental regulations, which establish program policy and prescribe

procedures, for either type of complaint. In addition, its operations

Page 18 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

manuals, which provide more detailed and technical guidance and

instructions than do the regulations, do not accurately reflect the existing

processes for program and employment complaints.

Program Complaint Guidance

and Procedures

USDA has not issued departmentwide policies and procedures governing

the receipt, handling, and resolution of program discrimination complaints

within established time frames. In USDA, this level of guidance is typically

issued as a departmental regulation. In December 1994, the OIG

recommended that USDA develop a departmental regulation for the process

to handle program discrimination complaints. A revision to an existing

regulation on civil rights compliance reviews was drafted to incorporate

the processing of program complaints, but it was never made final. In

September 1998, the OIG recommended that USDA issue, within 2 months,

departmental regulations governing the receipt, processing, and resolution

of discrimination complaints or consider an alternate means of hastening

the issuance of this guidance. USDA officials stated that they are revising

the current program complaint process and that, as of November 20, 1998,

departmental regulations for both conducted and assisted programs

reflecting the revisions had been cleared for issuance and were awaiting

the Secretary’s signature.24

USDA’s operations manuals are intended to provide technical guidance and

instructions to civil rights staff. However, OCR has no operations manual

for assisted programs, and its operations manual for conducted programs

does not accurately reflect the program complaint process as it has been

implemented over the past year. For example, the manual says that once

OCR receives a complaint, it may give the complainant up to 20 days to

supply additional information that will enable it to process the complaint.

If the information is not provided within that time, the manual states that

OCR is to dismiss the complaint. In practice, however, OCR does not dismiss

cases after 20 days if it lacks needed information. Rather, OCR often spends

several months obtaining and reviewing the information and then accepts

the case. As noted earlier, this time is not counted as part of the 180 days

that OCR has to close new cases. In addition, although the manual states

that complainants will be given the option of mediation by a neutral third

party in order to resolve the complaint, USDA has not established

procedures or guidance for using mediation and, as a result, does not

routinely offer it. The Director of USDA’s Conflict Prevention and

Resolution Center has proposed conducting a pilot test for program

complaint mediation; however, the proposal has not been acted upon.

24In commenting on our draft report, USDA stated that it is currently revising the departmental

regulation that documents the processing of discrimination complaints. See app. II for the complete

text of USDA’s comments.

Page 19 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

The Director of OCR said that once departmental regulations are issued for

the revised program complaint process, the office would revise the

operations manual to reflect the new process. However, she could not

provide a target date for the issuance of a revised manual.

Employment Complaint

Guidance and Procedures

USDA’s process for handling employment discrimination complaints is

governed by EEOC regulations. However, USDA lacks departmental

regulations to implement the EEOC regulations. USDA’s Associate General

Counsel for Civil Rights stated that USDA guidance relating to the EEOC

regulations had lapsed in 1994 and that several attempts to revise and

update the Department’s regulations were started but never completed.

The Director of OCR said that, as of November 20, 1998, revised

employment complaint regulations had been cleared for issuance and

were awaiting the Secretary’s signature.25 These regulations will establish

departmental procedures for handling employment complaints that are

consistent with current practices and incorporate additional prohibited

conduct, such as discrimination on the basis of sexual orientation.26

Furthermore, the Employment Complaints Division’s draft operations

manual was developed in 1996, before the civil rights functions were

reorganized. Thus, parts of the manual do not reflect recent organizational

and staff changes. For example, USDA’s regional service centers27 and the

dispute resolution boards, both cited in the draft operations manual, no

longer exist. In addition, staff responsibilities for the various phases of the

employment complaint process have changed, invalidating many of the

manual’s standard operating procedures. According to the Director of OCR,

there are no immediate plans to update the operations manual.

An EEOC official told us that federal agencies should have an operations

manual to (1) facilitate compliance with EEOC regulations, (2) standardize

processes throughout the agency, and (3) ameliorate the impact of

management and staff turnover. A civil rights official in the Department of

Transportation told us that her office was able to minimize the impact of

management and staff turnover by standardizing its work processes, which

are documented in a comprehensive operations procedures manual.

25As of Jan. 20, 1999, USDA had not responded to our request for information on whether the

departmental regulations had been issued.

26Discrimination on the basis of sexual orientation is not prohibited under EEOC regulations.

27The centers housed the EEO counselors, who are now located in the agencies’ civil rights offices.

Page 20 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

Inadequate Working

Relationships and

Communication

Complicate Efforts to

Process Complaints

Effective collaboration and communication are important since both the

program and employment complaint processes require the active

involvement of both the USDA agencies and OGC. However, difficulties in

establishing effective working relationships and communication between

OCR and some USDA agencies, between OCR and OGC, and within OCR have

hindered efforts to process complaints more efficiently. The Acting

Assistant Secretary for Administration said that OCR is working to improve

its relations with other USDA organizations. She noted that the rebuilding of

relationships was necessary to enhance OCR’s effectiveness and the quality

of its work. Problems in working relationships and communication are

described below.

Relationships and

Communication With USDA

Agencies

OCR’s implementation of the program complaint process is hindered by

agencies’ disagreement about their role in the program complaint process

and by inadequate OCR guidance. For example, civil rights officials

representing FSA and the Rural Housing Service—the two agencies with

the most program complaints—believe that the requirement to provide the

agency’s response within 24 days is unrealistic. OCR officials, however,

maintain that 24 days is adequate for the limited response that they expect

from the agencies. OCR’s guidance on the agencies’ role in the process was

issued nearly 2 months after the process took effect, and USDA has not

issued departmental regulations on the program complaint process.

In addition, agency civil rights officials pointed out that OCR has not

adequately consulted and communicated with their offices, particularly

during the development of policies and procedures. For example,

according to the civil rights director for one agency, to improve civil rights

management at USDA, communication between OCR and the agencies

should be strengthened and made more systematic. Similarly, four of the

eight EEO counselors we interviewed said that improved communication

with OCR would enable them to better assist staff who had filed

discrimination complaints. Employees who file a formal complaint with

OCR often contact the counselor they dealt with during the informal

complaint stage for information on the status of their case. The counselors

said they have had difficulties in obtaining this information from OCR.

Relationships and

Communication With OGC

OCR continues to experience difficulties in developing effective working

relationships with OGC, which has established a civil rights division headed

by an associate general counsel. These difficulties contribute to

inefficiencies in processing program complaints. For example, in an

April 1998 memo, OCR’s Deputy Director for Programs stated that delays in

OGC’s review of draft final agency decisions had created bottlenecks that

Page 21 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

hindered the closing of backlog complaints. However, OGC officials said

that their reviews have taken longer than anticipated because many draft

decisions needed extensive revisions; they estimated that 50 to 90 percent

were returned to OCR to be rewritten. The Associate General Counsel for

Civil Rights said that improved collaboration between his office and OCR at

key points in the program complaint process was needed to improve the

timeliness of OCR’s handling of complaints.

Regarding employment complaints, a Forest Service civil rights official

said that OGC should be more involved in preparing final agency decisions.

She also said that having a civil rights attorney dedicated to employment

issues and readily available to respond to questions from the agency’s EEO

counselors and from OCR staff would be very useful. The Associate General

Counsel said that although his office had initially focused on program

complaints, it planned to become increasingly involved with employment

complaints. At an August 1998 OCR staff meeting, the Acting Assistant

Secretary for Administration acknowledged that OCR’s relations with OGC

had been strained and reported that officials from these organizations

recently met to begin to address their differences.

Relationships and

Communication Within OCR

Inadequate communication within OCR has contributed to low morale and

productivity within the office. For example, according to a 1998 OIG report,

many employees in the Program Investigations Division said they were

never consulted when decisions were made, and that a lack of

consultation resulted in the establishment of timetables that they viewed

as unreasonable and unattainable. Lack of communication can be a

problem even at the management level. At an August 1998 staff meeting,

the Acting Assistant Secretary for administration highlighted the

importance of communication and cooperation within OCR. Nonetheless,

communication within OCR remains a problem. For example, the OCR

reorganization, which was expected to become effective on January 15,

1999, created a new management position that was filled in early

September 1998. However, as of October 1, 1998, the individual who filled

this position still did not know the full extent of his duties and

responsibilities.

USDA’s Use of ADR in

Addressing Workplace and

Other Disputes Has Been

Sporadic

USDA is not consistently using ADR techniques to address workplace and

other disputes. Furthermore, USDA has not used ADR in addressing program

complaints, even though its use is called for in OCR’s operations manual.

Page 22 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

ADR uses a variety of dispute resolution techniques that usually involve

intervention or facilitation by a neutral third party. These techniques range

from more formal approaches—such as management review boards and

arbitration, when a neutral party typically rules on the merits of the

disputants’ positions and imposes a solution—to less formal

techniques—such as mediation, when a neutral third party helps craft a

solution to the dispute. When used early in a dispute, before positions

solidify, mediation can resolve workplace disputes before they become

formal complaints, thus helping to reduce complaint-processing

workloads. For example, a 1996 EEOC study concluded that a sizable

number of federal employment discrimination complaints may not involve

discrimination issues at all but basic communication problems for which

mediation may be appropriate.28

Recent laws and regulations have supported the use of ADR in resolving

federal workplace disputes. For example, the Administrative Dispute

Resolution Act of 1990 gave federal agencies the authority to use ADR to

supplement existing methods of resolving disputes. The act required

federal agencies to develop policies for using ADR while providing

maximum agency flexibility on whether and how ADR should be used. The

act’s coverage was broadened with the passage of the 1996 Alternative

Dispute Resolution Act. In 1992, EEOC added provisions to its employment

complaint regulations encouraging the use of ADR in all stages of the

complaint process. And, in February 1998, EEOC issued a proposed rule,

which has not been made final, that will require all agencies to make ADR

available to employees at the informal complaint stage. This rule is

intended to reduce the number of workplace disputes entering into the

formal employment complaint process.

USDA has used several forms of ADR, primarily in the formal stages of the

employment complaint process. In 1994, the Department established

dispute resolution boards to address the growing volume of employment

complaints. The boards, which were discontinued in April 1997, conducted

hearings on about 12 to 15 percent of all employment cases, assessed the

cases, and tried to formally resolve them. A USDA evaluation found that

while the boards helped settle formal complaints, they were flawed. The

evaluation noted that the boards were labor-intensive, were expensive,

and did not address disputes early enough or deal with the underlying

issues of the complaints. Moreover, supervisors said that the boards

28ADR Study, U.S. Equal Employment Opportunity Commission, Office of Federal Operations

(Oct. 1996).

Page 23 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

undermined their authority and that a “settle-at-all-costs” policy

encouraged employees to file complaints.

Several USDA agencies have also used mediation to help settle formal

employment complaints. From October 1997 through January 1998, the

Forest Service, in conjunction with the Office of the Assistant Secretary

for Administration, used outside professional mediation to address its

backlog of unresolved employment complaints. About two-thirds of the

backlog was resolved through settlements with complainants. However,

the Forest Service’s report on the initiative noted that many of the

complaints could have been resolved much earlier (or may not have been

filed at all) if managers had done a better job of managing conflict at the

outset. During 1998, the Animal and Plant Health Inspection Service and

FSA also used mediation to settle employment cases.

Recognizing that USDA needed to address workplace disputes before they

escalated into formal complaints, the Secretary issued a memorandum in

May 1996 directing each USDA agency or mission area to develop an

ADR-based conflict resolution program outside of the formal employment

complaint process by November 30, 1996.29 However, as of October 1,

1998, USDA had only five ADR programs. These programs cover (1) all

employees in 6 of USDA’s 17 agencies, (2) employees in two regions of one

agency, and (3) some employees in one Department-level office. The

Assistant Secretary for Administration issued a guide to conflict resolution

programs in October 1996. However, several agencies were waiting for an

official USDA policy statement before they developed their own ADR

programs. On December 21, 1998, the Secretary of Agriculture issued a

conflict management policy. Detailed guidance to agency heads regarding

implementation of the policy is expected to be issued by early

February 1999.

In another effort to expand the use of conflict resolution programs, USDA

established a Conflict Prevention and Resolution Center in March 1998.

The center’s mission is to coordinate USDA’s ADR and conflict prevention

efforts, thereby providing a forum for addressing workplace conflict that

may or may not involve discrimination. The center, however, has not been

fully funded or staffed; current staffing is limited to a director and a

secretary. According to the Director, as of November 25, 1998, he had

received authority to hire one conflict management specialist. In addition,

up to three additional specialists may be hired, depending on funding

29Conflict resolution programs are also referred to as conflict prevention or complaint prevention

programs. In this report, we are using the term “conflict resolution” as a catchall term for these

programs.

Page 24 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

availability in fiscal year 1999. The Conflict Prevention and Resolution

Center is responsible for leading the Department’s conflict management

program.

In addition to using ADR for employment complaints, some federal

agencies use ADR programs to resolve disputes relating to agency programs

or activities. As previously discussed, OCR’s operations manual for program

complaints calls for complainants to be offered mediation early in the

complaint process. However, USDA officials said that mediation is not being

offered as part of the new program complaint process and that it would be

necessary to conduct a mediation pilot before implementing a full-scale

mediation program. Although USDA officials acknowledge that mediation

can potentially reduce the number of program-related complaints, little

progress has been made in developing a mediation pilot program.

Furthermore, the December 1998 conflict management policy does not

specify the use of ADR in the program complaint process.

Conclusions It has been almost 2 years since the report by the Civil Rights Action Team

called for extensive reforms to USDA’s civil rights program. While USDA has

made an effort to enhance its program complaint resources, many of the

problems reported by the action team still hinder efforts to improve

processing timeliness: Management turnover and reorganizations continue

unabated; inadequate staff expertise is still a problem; USDA’s civil rights

guidance and procedures remain inadequate; and poor communication

between OCR and other USDA entities continues to be a roadblock to

increased processing efficiency. As a result, USDA continues to exceed the

EEOC time frames for processing employment complaints and to miss

important interim time frames in its program complaint process. Clearly,

USDA’s civil rights program has a long way to go before it will achieve the

Secretary’s goal of making USDA the civil rights leader in the federal

government.

The additional expertise brought to the program complaint process, the

plans of OCR’s Director to improve training for civil rights employees, and

the actions under way to replace 36 OCR employees who lack adequate civil

rights expertise should, if effectively implemented, help enhance staff

expertise and strengthen OCR’s complaint-processing capabilities. At the

same time, however, USDA must make a concerted effort to address the

remaining long-standing problems that have contributed to the processing

delays. For example, while USDA may not be able to eliminate management

turnover, the impact of this turnover can be ameliorated by having clear,

Page 25 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

up-to-date guidance and procedures. Such guidance and procedures would

promote departmentwide compliance with, and standardization and

effective enforcement of, civil rights statutes and EEOC regulations.

Similarly, we believe that improved working relationships between OCR

and other USDA organizations can be facilitated by implementing processes

to ensure appropriate consultation at key points in the development of

new policies and processes. Unless OCR officials make a conscientious

effort to effectively communicate with these organizations, their roles and

responsibilities will not be clearly understood and their compliance will

remain problematical.

An ADR program can help reduce the number of employment complaints.

This program would relieve OCR of some of the burdens imposed by its

large caseload and enable it to focus on streamlining its employment

complaint process to make it more timely. For this to happen, however,

USDA will need to ensure that ADR is effectively implemented

departmentwide as a means of informally resolving workplace disputes. In

addition, ADR offers the potential for early resolution of program cases—an

area in which ADR is not being used.

Finally, it is important for OCR managers and staff to keep in mind the

importance of their mission. Delays in processing discrimination

complaints are unacceptable not only because they result in USDA’s failure

to comply with federal regulations and meet internal time frames—more

importantly, these delays affect the livelihood and well-being of

individuals who believe they have been discriminated against.

Recommendations To improve the timeliness of USDA’s processes for resolving employment

and program discrimination complaints, we recommend that the Secretary

of Agriculture direct the Acting Assistant Secretary for Administration to

take the following actions:

• Establish target dates and ensure that they are met for (1) issuing

departmental regulations for the assisted and conducted program and

employment complaints processes and (2) revising the conducted program

and employment complaints operations manuals and issuing an operations

manual for assisted program complaints so that the manuals accurately

reflect departmental regulations. In addition, develop procedures to

ensure that departmental regulations and manuals are kept up-to-date to

Page 26 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
B-281466 

reflect subsequent organizational, policy, or procedural changes that can

affect the implementation of USDA’s civil rights program.

• Establish target dates and ensure that they are met for having the Director

of OCR implement the office’s plans to relocate the OCR employees

identified as lacking necessary skills and fill the vacated positions with

employees who have appropriate civil rights expertise. Additionally, direct

the Director of OCR to assess the training needs of OCR’s employees and

implement a program to meet current and future training needs.

• Establish procedures for ensuring more effective consultation and

communication by OCR with agency civil rights offices, OGC, and other

affected entities, particularly in implementing new processes, policies, and

procedures that affect these organizations.

• To facilitate the resolution of program discrimination complaints, develop

and implement a program for using alternative dispute resolution early in

the program complaint process.

Agency Comments We provided a draft of this report to USDA for review and comment. In

commenting on this report for USDA, the Director of the Office of Civil

Rights stated that the record for processing complaints as described in our

report was accurate, the management weaknesses we cited were real, and

our recommended changes were necessary. In that regard, she noted that

USDA was actively moving toward full adoption and implementation of our

recommendations. Appendix II contains the complete text of USDA’s

comments.

We performed our work from December 1997 through January 1999 in

accordance with generally accepted government auditing standards.

Appendix I contains detailed information on our scope and methodology.

We are sending copies of this report to the appropriate congressional

committees; interested Members of Congress; the Secretary of Agriculture;

the Director, Office of Management and Budget; and other interested

parties. We will also make copies available upon request.

Page 27 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
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If you have any questions about this report, please call me at

(202) 512-5138. Major contributors to this report are listed in appendix III.

Sincerely yours,

Lawrence J. Dyckman

Director, Food and

 Agriculture Issues

Page 28 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Page 29 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Contents

Letter 1

Appendix I 

Scope and

Methodology

32

Appendix II 

Comments From the

U.S. Department of

Agriculture

34

Appendix III 

Major Contributors to

This Report

37

Tables Table 1: Status of Backlog Program Cases, July 1 and October 1,

1998

9

 Table 2: Stages in the Program Complaint Process and

Associated Time Frames

11

 Table 3: Timeliness of Agency Responses, as of October 1, 1998 12

 Table 4: Time Taken by USDA to Investigate and Close

Employment Complaint Cases Compared with Other Federal

Agencies, Fiscal Year 1997

14

 Table 5: Cases in Investigation and Final Agency Decision Stages

of the Employment Complaint Process, as of October 1, 1998

15

Figures Figure 1: Proposed Reorganization of USDA’s Office of Civil

Rights

5

Figure 2: Process and Time Frames for Federal Employment

Complaints

8

Page 30 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Contents

Abbreviations

ADR alternative dispute resolution

EEO Equal Employment Opportunity

EEOC Equal Employment Opportunity Commission

FSA Farm Service Agency

OCR Office of Civil Rights

OGC Office of General Counsel

OIG Office of Inspector General

USDA U.S. Department of Agriculture

Page 31 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix I 

Scope and Methodology

To gain an understanding of the history of and current environment for

civil rights at the U.S. Department of Agriculture (USDA), we reviewed the

February 1997 Civil Rights Action Team’s report and two subsequent

reports on the implementation of the 92 recommendations in the February

report. We also met with staff from USDA’s Office of Inspector General

(OIG) and reviewed OIG reports that dealt with USDA’s efforts to reduce the

program complaints backlog and to improve the overall system for

processing program complaints.

In conducting our work, we focused on USDA’s Office of Civil Rights (OCR)

and the three USDA agencies that have the greatest number of

discrimination complaints—the Farm Service Agency (FSA) and the Rural

Housing Service, which together account for about 80 percent of the

program complaints, and the Forest Service, which accounts for about

21 percent of employment complaints.

To determine the timeliness of USDA’s processing of program and

employment complaints, we reviewed Equal Employment Opportunity

Commission (EEOC) regulations, laws and regulations concerning

discrimination in USDA’s conducted and assisted programs, and OCR’s

operations manuals for processing conducted program complaints and

employment complaints. Furthermore, we analyzed reports from OCR’s

database dealing with the timeliness of program and employment

complaints. Specifically, we examined the time frames for processing

backlog and new program and employment cases. Regarding employment

complaints, we also obtained statistical data from EEOC to compare USDA’s

timeliness in processing employment cases with that of other federal

agencies. We did not verify the accuracy of OCR’s or EEOC’s data. The OIG

reported in September 1998 that OCR’s database for tracking program

complaints was incomplete and contained errors. However, we used the

database for our analysis since it contains the only information available

on USDA’s processing times for program complaints.

To determine the reasons for delays in the processing of program and

employment complaints, we interviewed USDA officials, including the

Acting Assistant Secretary for Administration; the Special Assistant to the

Secretary for Civil Rights; OCR’s past and current directors and a number of

managers and staff in that office; the Associate General Counsel for Civil

Rights; the civil rights directors for FSA, Rural Development (which

encompasses Rural Housing Service as well as several other agencies),

and the Forest Service; and the Chief, Conflict Prevention and Resolution

Center. We also interviewed officials at EEOC and the Federal Mediation

Page 32 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix I 

Scope and Methodology

and Conciliation Service, the federal agency that has a leadership role in

alternative dispute resolution. We also analyzed reports from OCR’s

database to determine where bottlenecks were occurring in processing

complaints.

In addition, regarding program complaints, we (1) met with a Department

of Education official to discuss the system the Department used to process

program complaints (USDA officials told us that Education had streamlined

its program complaint processes), (2) interviewed FSA staff in

Montgomery, Alabama, who conduct the field work needed to prepare

FSA’s response to program discrimination complaints; and (3) interviewed

Rural Development mission area staff in Alabama and Georgia, who

conduct the field work needed to prepare the Rural Housing Service’s

response to program discrimination complaints in those states.

Regarding employment complaints, we conducted a telephone survey of

eight Equal Employment Opportunity (EEO) counselors to discuss the

informal employment complaint process and to gain their perspective on

OCR. We randomly selected the counselors from the 23 EEO counselors in

FSA, Rural Development, and the Forest Service. (USDA has 44 counselors

departmentwide.) We also met with Department of Transportation staff to

discuss how they achieved increased efficiencies in their system for

processing employment complaints. Regarding the use of alternative

dispute resolution, we interviewed the Chief of USDA’s Conflict Prevention

and Resolution Center and the program managers for alternative dispute

resolution at several USDA agencies to discuss the benefits of this

approach.

We performed our review from December 1997 through January 1999 in

accordance with generally accepted government auditing standards.

Page 33 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix II 

Comments From the U.S. Department of

Agriculture

Page 34 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix II 

Comments From the U.S. Department of

Agriculture

Page 35 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix II 

Comments From the U.S. Department of

Agriculture

Page 36 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
Appendix III 

Major Contributors to This Report

Resources,

Community, and

Economic

Development Division

Jerilynn B. Hoy, Assistant Director

Rosellen McCarthy, Evaluator-in-Charge

Roberto R. Pinero

Brian Frasier

General Government

Division

Anthony P. Lofaro

Office of the General

Counsel

Susan Poling, Associate General Counsel

Alan R. Kasdan, Assistant General Counsel

Oliver H. Easterwood, Senior Attorney

(150740) Page 37 GAO/RCED-99-38 USDA’s Discrimination Complaint Process
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