vicarz | Entries tagged with work

BEIs
Recently I was asked to serve on a panel doing BEI interviews. I accepted and took it as an honor - one I over-estimated as it was not for a selection in our group, but another. Still, I am familiar with BEIs, have audited HR decisions for years, and not only work in the discrimination arena - but have a psyc background that includes familiarity with unconscious biases and heuristical errors. I thought this would be a piece of cake.

Instead it was very challenging. First, to my shock, people interviewed terribly. Multiple people, multiple times, failed to answer the question. I understand the KSA dog and pony show, and we’re now all familiar with answering a question with a pre-memorized talking point - we see this in not-legislator debates all the time. I know people get nervous, but it seemed very common to blow the interview entirely. One person had tons of notes he kept flipping through - he was the worst at answering the question posed. Two essentially repeated the same answer to every question, one constantly answering how her educational background made her perfect for a leadership role, while the other felt their vast experience was the same. Only one person really addressed the leadership role questions with any sort of leader or manager activity at all, though his answer really was limited to a) leading by example by working hard (eyeroll, though in his case it was well known to be very true), and b) bluffing and bullying people as negotiation. Greeeeat.

More challenging was regulating myself. Knowing people have judging errors does not, it seems, insulate you from having similar problems. Our first interview remained the best, but for each candidate it was a constant battle of trying to decide whether to score them based on a) their answer only, limiting scores to exactly what they said - I’d call this this interview skill version, b) reading between the lines, as they demonstrated the skill but did a poor job of articulating it, and c) scoring what the truth was even if they did a shitty job of presenting it at all. I could punt c pretty easily though it made me a little sad, but the difference between a & b was a real battle. I could forgive poor interviewing in other jobs, but this was a management position with a need to sell issues to higher-level managers and attorneys.

Perhaps more importantly, I then viewed myself via these questions. I suspected, and through the process I think I confirmed, the role I was given was an honor...but also a test to see how I would perform. I talked about how difficult the task turned out to me, noted my concerns, and took guidance on how to perform. I also noted, truthfully, this made me really look at my own performance and think about what answers I had to the questions and how I might present them. More, I looked at my job performance with regard to whether I was developing these skills. I think talking about this won me points, as I did a good job, but admitted the difficulties, sought help, and applied the advice I received. Since the interviews, I’ve been running through my head what I could do to lead rather than being a good follower.

Coworker?
So I’m getting concerned about a new coworker. Today I heard her yelling, or talking crossly, because she overslept and missed a flight and was having trouble understanding the rules from the travel agent. She’s going through serious family issues, a lot (hell I want to beat up her punk son myself), but she keeps fucking up simple things at work. She seems to know the case law well and the work, but in all things administrative she’s making errors - some that cost the Agency or at least cause a flurry of paperwork problems. She’s in her probationary period, so whether she’s working out or not is a serious issue.

Perhaps more concerning to me was hearing from an admin person how she was rude, bossy, and talked down to her. Since that time, I’ve also heard her lay into the janitorial staff, and today a travel agent. So while I know she’s under tremendous pressure, I also have a raw nerve for how you treat other people - particularly ones in lower positions. She's got a strong union background - so how do you fight for the underdog and then treat people like dogs? I truly hope it's just the stress, but it's reduced my trust in her a little until I have more information and experience with her.

On the plus side, the more issues she has the more I stick out for not having problems. My other new coworker isn’t having any of the issues, except a fussy kid whom she might coddle so she comes in late a lot (but all her work gets done - she is definitely throwing in extra free hours for the taxpayer). I’m always curious where I like in terms of lawyers - am I good? Mediocre? What should I do to improve? Is this a sweet spot or a waste of my efforts? So I look to my new peers to see where I fit in.

You know, like in the gym.

My first case hearing was in 2006. It was a “mixed case” MSPB appeal of a removal.

Fed employees have a right to a MSPB appeal, or an EEO hearing (or grievance), but not more than 1 of the choices.

The nameless employee had been disciplined twice before; twice he appealed his cases to the EEO process and filed every conceivable appeal (and probably will until the Supreme Court - he’s tireless). The employee filed a EEO case first, then filed a MSPB hearing request which he pursued through discovery, hearing, and decision. The record noted he had filed an EEO case but was being heard over discrimination issues by the MSPB. The Judge quickly affirmed his removal after his hearing. This was in 2006.

The employee then filed a new appeal to the MSPB on the same case, arguing that it should be heard all over again on the basis of a new basis (he had said retaliation for eeo activity, then changed it to race, national origin, religion, color, etc.). The case was thrown out under “res judicata,” that is - not only had the entire thing already been decided, but the Judge gave him a chance to raise those bases in hearing and he had declined to do so. Courts do NOT have multiple hearings over the same fact pattern. This was in 2009.

He got a “Final Agency Decision” on his abandoned EEO claim, which noted it was dismissed if the MSPB had issued a decision. This may be the basis of his 2nd MSPB “hearing request,” but it isn’t clear and he may have hidden that fact.

In 2014, the Dept. of Justice was in court fighting his continued EEO claims...he has appealed at every possible stop and 5 years later they’re still going on. The DoJ did a search of any related litigation to consolidate for the purpose of settlement or litigation. In so doing, they discovered the MSPB 2nd case...and so did the employee, who then appealed the 2009 case in 2014 claiming he never got a copy of the decision and therefore the 30-day period to appeal should be waived. I responded for the Agency, asking to dismiss the untimely appeal, and the full MSPB dismissed the appeal as grossly untimely. The employee appealed that decision as well. Now all those appeals are pending in court(s).

I suppose the details don’t matter, but per my “this process is fucked” diatribe days ago, a case I did in 2006 (as a trainee, someone else’s name appears) is still languishing in the system almost a decade later. My work is in a field where biased investigator-judges deal with a racist and/or psychotic clientele who lacks any shame or morals as they pursue lies (or on a good day delusions) for personal gain in a well-intentioned system that results in wasting millions of dollars a year - including my salary - with negligible positive results and well documented abuses and negative results.

As noted previously, EEO filers not only lack justification for their claims, but file repeatedly and “loudly,” so people who either are or suspect they are victims of discrimination, fail to file complaints for fear of being associated with the opportunists they find as disgusting as I do. Most current eeo cases are not about discrimination, but "retaliation for filing eeo complaints." As noted, one of the places most subject to EEO complaints is...the fucking EEOC. The fucking EEOC.

Sadly if you peruse the management ranks where I work, you’ll find an over-representation of eeo filers at very high levels; this goes a long way in explaining unaddressed incompetence. Some of the most mind-numbingly worthless employees I happen to know the eeo histories of, while others just wonder what travesty of justice let them have a position they don’t deserve and can’t do...I bite my tongue knowing the answer.

It's confidential; they say to protect the process and avoid retaliation, while filers frequently tell everyone within earshot of their activity and broadcast it to all managers so they can't deny they knew of the activity. They can lie about winning, but management can't correct them. The EEOC recently stopped putting filers names in their "court" decisions, and is the only place where the Judges fail to identify themselves in writing. The Minneapolis Judge who always decides against the Agency based on "credibility?" You can't find her in writing, nor can you do any analysis of what the Judges do, because they are anonymous as well. Anonymous judges. Really.

A former high-ranking official from civil rights is now working as a representative for eeo case filers and collecting legal fees for doing so - I don't know this is illegal, but I'm not convinced it is legal.

I’m preparing to file comments to the EEOC’s new proposed regulations, not that my voice will be heard. This shit may be my bread and butter, but I'm also a taxpayer and hate waste.

It's been over ten fucking years and technically I haven't even won my first case yet.

The first hearing I did was in 2006.

In the Federal government, EEO is different than in the private sector. In the private sector, you can go to the EEOC and claim discrimination - they choose whether or not to investigate, find discrimination, litigate, and determine remedies. You can also go directly to court and file a lawsuit, but it's difficult to do without a lawyer. Employment law generally requires paying the lawyer up front - it's not like car crash contingency fee ambulance chasing lawyers you see advertising on daytime tv.

In the government, every Agency is required to have a civil rights department that reports to the head of the Agency. Employees are not allowed to go to court with an EEO claim; they have to "exhaust the administrative process first." This is defined by the following process: call a counselor with the civil rights group to start the complaint process (within 45 days of the act they claim was discrimination, or they found out reasons an older act was discriminatory). The counselor explains their rights, and conducts an investigation over the phone to ask the other side's (i.e. their supervisor) version of events. The counselor then reports back to the employee what they found, and asks if they want to "go formal." The answer is invariably yes.

(sidetrack)
Another part of the regs requires diversity programs for each Agency as well - endlessly. Think of it, in 20 years of my career there were a minimum of 20 black month presentations, azn month, women's, latino, native, disabled...take the hundreds of people heavily encouraged to go (they're not allowed to say mandatory, but they count) and multiple the lost time per hour for the cost for...what? Ironically since there isn't much to say, the presentations tend to involve dance numbers and old-fashioned costumes - in other words, cultural stereotypes that would be racially insensitive if other people put them on. Again, these costs to all Fed Agencies are not recorded in the EEOC's budget, but failing to abide by their mandates would result in "violations." (/end sidetrack)

When an employee decides to go formal, an outside contractor is hired to do an investigation ($$$). They gather documents they think are relevant and do phone interviews of all known witnesses and the complainant (now called "aggrieved person," or AP, which is offensive because the claim is unproven while aggrieved implies wronged). The evidence collected is put in a file, 2-500 pages on average, and provided to the complainant (the quality is often poor, as the government is required to take low-bidders to "save money)." The employee is then allowed to review the evidence and choose whether to continue their case; invariably they do. They then choose either a hearing by the EEOC or to ask the Agency staff to review the evidence and issue a Final Agency Decision (FAD) - appeal rights if they don't like the FAD below). Minor note - at any point in the process they can also select to go to "mediation," which is settlement negotiations.

Only when they ask for a hearing do they potentially have to lift a finger - up to this point with the thousands of dollars in direct costs and thousands more in payroll hours, they have only invested 20 minutes to 2 hours - all orally. When they request a hearing from the EEOC, an Administrative Judge issues an Acknowledgement and Order, which starts the discovery process. While the complainant has a right to pose questions, request documents, and depose witnesses - most don't, because they generally expect someone else to run out and find the discrimination for them - or they just figure they'll bully people into paying them off. This is where I come in - I engage in discovery, making them explain their claim, tell me what allegedly was discrimination, why they think it was, what evidence they know of, and who witnessed any alleged events. When faced with having to work, a lot of employees drop out of the hearing process.

When discovery is over, a pre-hearing conference is held in which the EEOC AJ determines what evidence will be heard, what witnesses will testify, and then holds the hearing. The AJ then issues their decision, which is issued to the Agency and the employee. The Agency then, 99% of the time, issues a statement saying they accept the finding of the EEOC AJ, and issues a final order with appeal rights to the Office of Federal Operations (EEOC-OFO). Once OFO rules, an Agency is not allowed to appeal, but the employee can appeal to "real court."

EDIT NOTE - FIND STATS OF DISC IN HEARINGS FINDING (4% ? ) and note reasons (no evidence, inference, procedure, "credibility" )
RE_EDIT - SOURCE STAT ON ARTICLE BELOW
http://www.fedsmith.com/2014/05/06/who-decides-due-process-may-be-due-for-a-redo/
Agencies that go to hearing win >96% of the time, and that's even with these highly biased AJs on snipe hunts. How biased do you ask me presuming I am also holding a bias? I know of an AJ that an Agency actually reported to the EEOC in a complaint because she is so famous for ruling against Agencies based on "credibility determinations" (which can't be overturned even if evidence proves the Agency should have won otherwise).

Further proof the claims of discrimination are crap? The 3rd most accused Federal Agency is the EEOC itself!
http://www.govexec.com/management/2014/08/federal-agencies-most-often-accused-discrimination/92819/

The "good" part for the employee is they can get thousands of dollars in payroll and contracting costs spent for a full investigation, plus this can be used to harass their supervisory chain of command as it easily takes 40 hours of their time away. Then, whenever you file again, you also claim harassment for having used the EEO process. There are employees who file dozens of complaints. You can engage in harassment, shield your misconduct, and overtly engage in other types of misconduct in the EEO process - and be immune to prosecution. I've heard of people going into confidential mediation and openly admitting they knew there wasn't discrimination, but this was the best way to get what they wanted. Also, the EEO AJs are generally people interested in civil rights in the sense they expect to find discrimination, and like a snipe hunt, they do - rarely with any evidence of actual discrimination, but usually based on procedural problems or far-out inferences and credibility determinations. Ask a racist to rule on a he-said she-said scenario and see what result you get. Also, the entire process is designed to work without lawyers - employees represent themselves all the time, and Agency Representatives don't have to be lawyers (though they often are).

The down side is the Fed employee can't just go directly to court and sue the government. I don't see this as much of a downside as most pro-se litigants don't last a week in real court, and the judges are not as biased.

The cost to the taxpayers? The benefit?
http://www.eeoc.gov/eeoc/plan/upload/2014par.pdf
p 61, Fed Sector cost $52 million. Note that's JUST the EEOC's budget, and they require all Agencies to maintain a full civil rights staff - billed to each Agency.
Per http://www.eeoc.gov/eeoc/newsroom/release/11-18-14.cfm
"The EEOC also secured ... $74 million in monetary relief for federal employees and applicants"
In this figure they note settlement / mediation money, which is often paid per nuisance value as it's so expensive to litigate these things. In our Dept. there is a mediation push, throwing $5k at anyone that will drop a charge because it costs $15k to investigate (and more to litigate). They claim this as a cost savings in their performance metric, when of course people who file often have filed and will file again - so they're inspired to file more claims to make more money. I would argue at these rates the return on taxpayer money spent, even if you consider deterrent effects of discrimination findings, it's not worth it and the entire program should be scrapped.

42.8 percent of all charges filed were "retaliation," which the EEOC claims is proof of discrimination! Instead, I postulate that the real issue is the same people file eeo complaints over and over again, and just as blindly as they check every box available for race, sex, NO, religion...they also claim retaliation BECAUSE THEY FILED BEFORE AND WILL AGAIN.

I recently had a coworker who felt she might be a victim of discrimination, but she didn't want to file charges because she didn't want to be associated with the creeps that were known to file discrimination claims. That's a statistic, the stigma of the free reign of eeo abusers, that the eeoc is unlikely to capture in their measures...never mind the outright waste that is obvious on review of their reports.