EEOC Chair Jacqueline Berrien Letter From NAACP on her performance

THIS LETTER(SIGNED)WAS EMAILED TO THE LIST BELOW:

February 22, 2011

Jacqueline A. Berrien
Chairwoman
EEOC Headquarters
U.S. Equal Employment Opportunity Commission
131 M Street
Washington, DC 20507

Re: DIRECTION OF EEOC AND
LOST OF PUBLIC TRUST

Dear Chairwoman Berrien:

Congratulations on your confirmation in December 2010 as Chairwoman of EEOC. I was delighted in reading the news that President Barack Obama had appointed you as the fourteenth Chairperson to head the Equal Employment Opportunity Commission (EEOC or Commission). Indeed, your background as a litigator and your association with the NAACP should definitely help you reshape the direction the agency will travel in the 21st century in fulfilling its mission to eradicate employment discrimination in America’s workplace, both public and private. I believe you have a difficult, but not impossible task, to accomplish your mandate.

I write this letter to express my concerns about how the EEOC is currently enforcing the federal anti-discrimination laws which are under its jurisdiction. In particular, I am greatly disturbed about how cases are being processed and investigated because discrimination in the federal sector is just as bad as in the private sector. I hope you will push more aggressively to bring change about within the EEOC’s field offices, including dealing with management officials and investigators who engage in prohibited personnel practices.

However, thus far, I have seen very little that you have done in issuing directives to District Directors and other personnel to swiftly reverse the Commission’s reputation as being inefficient in keeping track of the claims filed by aggrieved individuals; and to make sure the cases are properly processed and investigated; and that their civil rights are protected which is guaranteed by the Constitution.

I will begin with my concerns with the FEDERAL SECTOR. I am sure you are fully aware, the federal government is the largest employer in America and should lead the way in being a “model” employer in creating a diverse and honorable workplace. The EEOC’s annual report for 2009 for the federal government clearly shows that there is something wrong with this employer as it relates to the laws administered by the EEOC. As of July 2009, the EEOC employed approximately 110 Attorney Examiners of which 24 of them failed to maintain an “active” status in the bars they were admitted to practice law. On or about July 29, 2010, the EEOC employed the same the same number of Attorney Examiners of which 15 failed to maintain an “active” status in the bars they were admitted to practice. Furthermore, according to the Occupational Outlook Handbook, 2010-11 Edition, there is no true position for Attorney Examiners-
Administrate Judges. Congress did not create such positions to impartially adjudicate claims arising under 29 C.F.R. § 1614.19. Congress created the position of Administrative Law Judges (ALJs) to adjudicate claims under 29 C.F.R. § 1614.19. I am requesting that your Attorney Examiners/Administrative Judges be converted to Administrative Law Judges; and that there be a cease and desist on Attorney Examiners/Administrative Judges conducting hearings who have failed to maintain an “active” status in the bars they were admitted to practice law.

In 1990, the Administrative Dispute Resolution Act (ADRA) was implemented which required each federal agency to adopt a policy on the use of ADA. There are no real advantages for complainants to participate in the ARD program to resolve complaints based on my analysis of the statistical data. Complainants participating in the program face retaliation based on my review of grievances and arbitrations.

Until management officials throughout the federal government, including but not limited to EEOC, are held more accountable by being disciplined and/or terminated for not complying with the regulations there will be no change in this environment. For example in your own “shop”, I reviewed the lawsuit filed by Mr. Ricardo Jones, a former Investigator who was employed in your New York District Office, before your lawyers filed a motion to have it sealed, and was quite frankly appalled at what he had experienced. It appears based on the lawsuit that Mr. Jones was retaliated against by being denied a Within Grade Increase (WIGI), placed on a Performance Improvement Plan (PIP), and terminated for whistle blowing activities protected under the Whistleblower Protection Act (WPA); specifically, when he disclosed incidents of gross mismanagement, abuse of authority, and violations of laws, rules, and regulations which happen in his office. These acts were happening in his office and he attempted to correct the matter and as a result was terminated. Management officials in other filed offices have engaged in gross mismanagement, abuse of authority, and violations of laws, rules, and regulations.

As for the PRIVATE SECTOR, information that I have been given from various sources reveals that your field office staff in the intake process continue to engage in one or all of the following behavioral deficiencies: (1) refuse to take charges based on race, Black; (2) refuse to allow charging parties to file a class-action charge based on race, black; (3) refuse to allow charging parties to check more than one box and/or name an employment agency; (4) refuse to allow charging parties to mention events outside 180 days even though, the alleged discriminatory events are still timely; (5) telling charging parties that they need more detail information before taking a charge; (6) failing to tell charging parties during the intake process about the agency’s A, B, & C classification system; (7) failing to contact and interview witnesses identified by charging parties; (8) failing to give charging parties pre-determination interviews before cases are dismissed as a “not cause” finding; (9) refusing to give charging parties a status update in a timely manner; (10) refusing to give charging parties and/or their attorneys a copy of respondent’s position statement; (11) failing to make a adverse inference “reasonable cause” finding after respondents have failed to provide a position statement; (12) dismissing cases without respondent’s position statement; (13) lack of coordination among EEOC personnel (e.g., different investigators assigned to charges against the same respondent involving the same allegations and discriminatory practice; (14) investigators telling charging parties during the intake process that they can not file a charge because they do not have direct evidence; (15) when charging parties request a copy of the investigative file they find no in-depth investigation was conducted; (16) investigators are dismissing cases solely on respondent’s position statement without giving charging parties an opportunity to refute what respondent has said; (17) investigators during the intake process tell charging parties there is no merit to their charge; (18) investigators giving charging parties legal advice during the intake process; (19) investigators not seeing retaliation when it is right in front of their face; (20) intake investigators not knowing and/or understanding elementary principles of discrimination cases; and (21) Directors refusing to reopen cases after charging parties in a timely a manner have provided additional evidence to support their case. It does not take an increase in the agency’s budget to correct the above problems.

I and members of my executive board listened very carefully to the questions posed
to Commissioners Victoria Lipnic, Chai Feldblum, and General Counsel, P. David Lopez and you during the confirmation hearings last year. Democratic Senator, Tom Harkin, asked you two very important questions. He asked you (1) how much money you needed and (2) how were you going to handle the large backlog of cases. You responded by telling him that you could not provide him with an answer at the time. You also told him that after you were confirmed and given an opportunity to review the agency’s operation, you would be better prepared to give him a report. However, I have not seen such a report in the media. Instead, it appears that you relied on inaccurate and/or missing key documents in case processing provided to you by your staff, specifically, Nicholas Inzeo, Director, and Office of Field Programs. You increased the performance goals for District Directors for Federal and private sector complaint processing thereby, placing an unnecessary increase of performance goals on the bargaining unit employees without justification, which resulted in the Union filing fifty-three (53) Unfair Labor Practice Charges (ULPs).

EEOC is the only federal agency with the most responsibility in enforcing more anti-discrimination laws with the least amount of employees than any other agency. The AFGE Council 216 should be lobbying Congress to raise the agency’s authorized ceiling 4,000 full time employees rather than 3,000 and increase the budget to $478 million. Civil rights organizations would be on the front lines helping the agency to convince the Congress that such appropriations are needed to enforce the civil rights laws, which protect against discrimination on the job, based on race, color, religion, national origin, sex, age, disability and genetics. Unfortunately, EEOC has mishandled the appropriations already granted by Congress, leaving aggrieved individuals who filed charges or complaints suffering the consequences.

In FY 2009, Congress made sure the agency received an extra $23 million dollars to help reduce backlog of cases. All this money did not go to hiring 200 or more investigators. How was the money spent to help tackle the growing backlog of cases? On November 15, 2010, the Federal Labor Relations Authority (FLRA) issued a decision which indicated the agency violated the Fair Labor Standards Act (FLSA) by requiring employees to request compensatory time off in lieu of overtime compensation. The agency is aware that it has an outstanding bill of approximately $7 million dollars or more for intentionally and willfully violating the FLSA. Nevertheless, the agency has failed to put in its budget funding to compensate investigators, mediators, and paralegals for working overtime. I believe the AFGE Council 216 has done very little in requesting that the agency put in its budget the funding to compensate the employees for working overtime. The agency and union have engaged in “featherbedding” which has prevented the employees from being compensated for working overtime. I am going to ask Congress to follow the money.

As a civil rights advocate as well as a stakeholder, I am obligated to ferret out “injustice” throughout the federal government and assist in correcting any misconception or misinformation concerning the public’s civil rights; and what action is being taken to protect them from discrimination. I am deeply disturbed after reviewing the EEOC’s Charge and All Statues Statistical Data for FY 1997 through FY 2010, when comparing “no reasonable cause” findings to “reasonable cause” findings. How will the agency effectively process and investigate charges filed under Title II of the Genetic Information Nondiscrimination Act of 2008, when the agency’s own statistical data clearly shows that it is having a difficult time in eradicating discrimination in the workforce with the anti-discriminations laws it enforces before the aforementioned law was passed? I know oftentimes the decision to eradicate discrimination is not pleasantly received by respondents; however, the agency must be a much better job in fulfilling its mission because the public has lost confidence.

I want a written response within fifteen (15) days of receipt of letter answers to the following questions. (1) Why are cases with a “reasonable cause” determination transferred to ADR for conciliation and held there for six months or longer until conciliation efforts fail, and no lawsuits filed? (2) Why was the charge filed Charging Party, William F. Keck, a White male, (Charge No. 520-2008-02765) and Charging Party, Ann Judith Yancey, a White female, (Charge No. 520-2008-0221) against Atrium Staffing, LLC. was transferred to the EEOC’s Newark Area Office, and the charging parties issued a “no cause” finding on September 30, 2009, when they both provided sufficient evidence to show that respondent had engaged in lawful employment practices against African Americans? (3) Has there been an independent investigation conducted regarding the racial remarks made by Ms. Electra Yourke, a White female, when she states “that no matter how much experience and/or education a Black person has they don’t qualify for anything.” Ms. Yourke as a public official is liable for her actions. In fact, her remarks were outside of her sworn official duties. Therefore, she has no official immunity under Title 42 § 1983.

I am prayerful that the above information will be acted upon immediately in order to gain the public’s trust back “with all deliberate speed”. I hope you will make a difference in combating discrimination more effectively in the workplace. EEOC is not in the business of giving respondents a safe haven to hide when they engaged in unlawful employment practices. The public’s demands are too important to be overlooked. Indeed, you have been given the opportunity to reshape the direction of the agency.

I wish you the very best traveling down this road. I hope you will be motivated by the dreams that former civil rights advocates had that equal justice under law might be a reality in the workplace during your tenure. “Injustice anywhere threatens justice everywhere” Rev. Dr. Martin Luther King, Jr.

I you have any questions regarding this letter; please contact me at (602) 252-4064.

Sincerely,

Rev. Oscar S. Tillman
President/National Board of Directors
NAACP

cc: Stuart Ishimaru
Constance S. Barker
Victoria Lipnic
Chai R. Feldblum
P. David Lopez
Roslyn M. Brock
Benjamin T. Jealous
Margaret Morgan
Sen. Jon Kyl
Sen. John McCain
Tom Harkin
Sen. Barbara Boxer
Sen. Dianne Feinstein
Sen. Barbara Milulski
Sen. Johnny Isakson
Sen. John Corny
Sen. Charles Schumer
Rep. Darrell Issa
Rep. Ed Pastor
Rep. Barbara Lee
Rep. Emanuel Cleaver
Latasha Brown
Ricardo Jones
Walker Harman
Randell Pittman
Donald Winfield
Regina Murry