October 21, 2013

C4C
The Coalition For Change, Inc. (C4C) P.O. Box 142 Washington, DC 20044

Ms. Susan N. Herman, President American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Subject: Denial of Due Process in the Federal Complaint Process Dear President Herman:

T. Ward Jordan L.O.R., B.A., M.S. Founder

P. D. Taylor B.A., M.P.A. President W. Berry B. S. Treasurer M. Castelle, Sr. Diversity Chair

The Coalition For Change, Inc., (C4C) writes to request that the American Civil Liberties Union (ACLU) champion efforts to provide due process for federal employees and job applicants who file employment discrimination complaints against U.S. government agencies. The C4C is a non-profit civil rights advocacy organization. We chiefly serve as an emotional and informational support network for individuals injured as a result of federal workplace race discrimination and reprisal. We are most concerned that the U.S. federal government, the nations largest employer, engages in conflict of interests and maintains a pattern of practice denying civil servants due process as promised by the Constitution.1 To our nations detriment the Equal Employment Opportunity Commission (EEOC), which is to enforce federal laws that make employment discrimination illegal, engages in disparate treatment. Specifically, the EEOC denies federal employees and job applicants, who file unlawful employment discrimination complaints against federal entities, the due process it affords individuals who make similar complaints against non-federal employers. In support of this claim, the following narrative is provided. I. EEOCs Fails to Follow the Administrative Procedures Act The Administrative Procedure Act (APA) was enacted in 1946 to ensure fairness and due process in executive agency actions or proceedings involving rulemaking and adjudications. In pursuit of this goal, the APA created the position of the Administrative Law Judge (ALJ) within the federal government (2010, Congressional Research Service, p.1)2. Despite the law requiring ALJs to hear and render decisions on federal employee complaints, the EEOC substitutes non-ALJs for ALJs and thereby erodes the due process for persons filing employment complaints against the U.S. government. The Congressional Research Service report discloses: There are significant differences between ALJs and non-ALJs in terms of independence, training, experience, and compensation that may affect how these two types of hearing officers review administrative appeals. [N]on-ALJs are potentially subject to a greater degree of agency influence than ALJs. In 2012, Kathleen Mulligan of the Administrative Judges Association offered written testimony to EEOC definitively stating:3 The adoption of the Administrative Procedures Act for federal civil rights hearings is not merely a personnel matter. It provides the foundation for due process for federal employees which the current program lacks.

M. Haywood Greetings and Outreach Chair B.S., LOMA Cert

K. Karriem M.B.A., D.M. Advisory Committee Chair

A. Martin B.S., M.S. Mental and Spiritual Well-being Chair

J. Smith B.S., M.S. Publications Chair

P. Taylor A.A., B.A. Civil Rights Chair

D. Williams B.A., M.S., J.D. Legislative Research Chair www.coalition4change.org [email protected] 1-866-737-9783 Twitter c4c@c4cfed

The due process clause of the Fourteenth amendment holds that there is a fundamental, constitutional guarantee that all legal proceedings will be fair and that a law shall not be unreasonable, arbitrary, or changeable. Referenced ACLU link at http://www.aclu-md.org/issues/due_process 2 Congressional Research Service (2010). Administrative Law Judges: An Overview available online at http://www.ssaconnect.com/tfiles/ALJ-Overview.pdf 3 Administrative Judge Mulligans statement is available online at http://www.eeoc.gov/eeoc/meetings/7-1812/mulligan.cfm

Letter to ACLU (pg.2)

II. Federal Complaint Filing and Charge Handling Process In comparison to state, local and private sector employees, the EEOC prescribed filing and charge handling process for federal workers and applicants is quite different. It denies this population due process. EEOC clearly discloses on its website: Federal employees and job applicants have a different complaint process. Unlike U.S. citizens who file claims of discrimination against a non-federal employer, U.S. citizens who file claims against the federal government are subjected to arbitrary, bias and unfair procedures when seeking redress. A. Time Limits For Filing a Charge. Individuals in the private sector, state or local agencies have up to 1804 calendar days (six months) from the day the discrimination took place to file a charge of discrimination. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. Comparatively, Federal employees and job applicants are subjected to an accelerated process and a much narrow window to report discriminatory treatment. According to EEOCs Management Directive 1105 federal employees must report a claim of discrimination to an agency EEO counselor within 45 days of the discriminatory event or the claim will be dismissed as untimely. B. Complaint Intake Process, Evidence and Investigation. In addition to the complaint filing deadline disparity, the intake, oversight and recording process for federal complaints undermines neutrality and due process. The current system simulates the fox guarding the hen house scenario. Note the following: 1. Non-federal complainants have the benefit of filing a charge directly with an EEOC office. Whereas, federal employees must file a charge of discrimination with the agency EEO Counselor s[he] works for or the agency where s[he] applied for a job. In the federal complaint process, the agency (defendant) decides which employee claim it will accept or reject. 2. Non-federal complainants may have their claim(s) of discrimination investigated by the EEOC. Whereas, federal complainants must have their claim(s) of discrimination investigated by either the offending agencys staff or by personnel contracted by the offending agency. This poses a grave conflict of interest. 3. Non-federal complainants also have a right to introduce evidence of an unlawful employment practice that has occurred outside the time for filing a charge of discrimination. Federal employees are not being afforded the same benefit as provided for under the Lily Ledbetter Act of 2009. 4. According to EEOCs Management Directive 110, federal complaints are to be investigated within 180 days, however many federal entities are non-compliant. For example, in fiscal year 2012 General Services Administration took an average of 264 days to investigate an employee complaint and Bureau of Indian Affairs took 372 days.

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Time limits for filing available online http://www.eeoc.gov/employees/timeliness.cfm EEOCs Management Directive 110 : Federal Sector Complaint Processing Manual

Letter to ACLU (pg.3)

5. In the federal complaint process, the agency charged with discrimination is responsible for contracting the court reporter. Employees have at times raised concerns about the neutrality and accuracy of hearing records. III. EEOC Support EEOC aids non-federal complainants in the investigation and processing of employment discrimination cases against local, state and private employers. Persons who file a complaint against a non-federal employer may speak with an EEOC official about their complaint any day during the work week. However, complainants filing a claim against a federal entity are limited to when they can speak with an EEOC official. It is key to note, that in the federal process the EEOC serves in an adjudicatory role for federal employees who bring an anti-discrimination claim against a federal agency. IV. EEOC Accountability and Enforcement EEOC prominently displays the civil rights violations of employers in the civilian labor workforce on its main webpage. See link at http://www.eeoc.gov. However, EEOC fails to prominently list in a similar fashion the unlawful discriminatory transgressions of federal agencies. In fact, most cases involving federal agencies civil rights violations are rarely made public. On October 1, 2003, the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) became effective. The Act imposes additional duties upon Federal agency employers intended to reinvigorate their longstanding obligation to provide a work environment free of discrimination and retaliation. Despite Section 203 of the Act that requires all federal agencies to file annual No FEAR reports to Congress, many agencies like the Social Security Administration (SSA) are simply ignoring the law. See enclosed letter from SSAs Freedom of Information Officer who reports that the SSA did not prepare reports for FY 2004 thru FY 2010. Notably, there are at a minimum three (3) on-going class actions against SSA. V. Subpoena Power In the non-federal complaint process, if an employer refuses to cooperate with an EEOC investigation, EEOC can issue an administrative subpoena to obtain documents, testimony or gain access to facilities. However, in the federal complaint process EEOCs Administrative Judges (AJs), which are used in lieu of Administrative Law Judges (ALJs), do not have the ability to issue subpoenas which are at times essential to develop an adequate record. ACTION BEING REQUESTED FROM THE ACLU Federal workers serve as the first line of defense in protecting our homeland. They perform such vital duties as inspecting food, protecting our borders, and catching fugitives. Yet, too many federal employees are being denied due process when filing complaints of discrimination and other forms of workplace abuse. As our nation's guardian of liberty, working to preserve the individual rights that the Constitution and laws of the United States guarantee to everyone in this country,6 C4C requests the ACLU to: 1) Make a formal written inquiry with the EEOC about its failure to follow the Administrative Procedures Act. [The APA provides that when a statute requires an agency adjudication to be determined on the record, an ALJ or the agency head must preside.]
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Excerpt from ACLU website about its mission.

Letter to ACLU (pg.4)

2) Promote an ACLU public awareness campaign about the federal governments failure to hold public officials accountable for breaking civil rights laws. [Circa 50 years after the Civil Rights Act of 1964, there is no mandatory discipline imposed on public officials who break employment discrimination laws. See C4Cs Unleash No FEAR campaign video http://www.youtube.com/watch?v=Cq4A6i09uhw] 3) Make a formal written inquiry with the EEOC concerning the lack of mandatory discipline imposed on public officials who break civil rights laws. 4) Champion the right for U.S. citizens to have due process when filing employment discrimination claims against the U.S. federal government. Help end disparate treatment by representing individuals with active federal employment cases who seek to challenge the current disparate treatment practices. Your support to champion initiatives identified is vital to the security of our nation. As stated, the current EEOC handling of federal cases and EEOs non-compliance with the Administrative Procedures Act denies due process to federal employees. Consequently, many civil servants are deterred from filing complaints and/or exposing federal workplace abuses that ultimately impact the safety, costs and efficiency of government operations. Please contact me either by phone (1-866-737-9783) or by email at [email protected] to let me know if the ACLU will help secure due process for those who challenge federal employment discrimination.

Sincerely | signed | Tanya Ward Jordan, Founder The Coalition For Change, Inc. (C4C)

cc: Ms. Donna Lieberman, Executive Director-ACLU