Arlington, VA 22201
April 3rd, 2015
Having worked with the EEOC's federal sector program since its inception, representing employees, unions, and agencies, and with prior private sector experience in litigation under Title VII, I offer these comments.
First, the mixed case process should be eliminated. Any action within MSPB's jurisdiction should be appealed through MSPB and, following exhaustion of the MSPB process, review of EEO issues, if they were pursued, would be only through an EEOC appellate organization (OFO) or district court. Cases of disputed MSPB jurisdiction, e.g., constructive adverse actions (forced retirements, resignations, downgradings), would be initiated with MSPB and if rejected there, appellants would receive a notice allowing them to follow EEO procedures described in the following paragraph.
As to all other cases, the current process is too cumbersome, too expensive for all parties, and too long. I'd suggest adopting the MSPB model, with a variation. An individual would file a complaint and hearing request with an EEOC district or field office. The case would be assigned to a judge. Before the onset of any litigation steps, mediation would be mandatory. Failing settlement, the judge would allow the parties to conduct traditional discovery, motion, and hearing practice, with the judge's decision subject to review by either side with an EEOC appellate organization (OFO) or, at the option of the complainant, resort to district court before or after EEOC appellate review. The variation I speak of is mandatory mediation. At MSPB, mediation is voluntary. The EEOC litigation process would conducted through an electronic system similar to that in use at MSPB, FLRA, and in all federal courts, with exceptions as needed for paper filing and mailed service. it is expected that this process would require appointment of more judges, and it is expected that many cases would receive early disposition through a motion to dismiss or for summary judgement. The overall saving to the taxpayers of the funds spent for the current internal EEO processes would be considerable.
Peter B. Broida