Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002. No FEAR Act Annual Report

Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 No FEAR Act Annual Report Department of Homeland Security Office for Civil Rights and Civil Liberties March 23, 2012

Message from the Deputy Officer for Civil Rights and Civil Liberties, U.S. Department of Homeland Security I am pleased to present the U.S. Department of Homeland Security s (DHS) Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) Annual Report for Fiscal Year (FY) 2011. The No FEAR Act, Public Law 107-174, requires that federal agencies be publicly accountable for violations of anti-discrimination and whistleblower protection laws. Federal agencies must post both quarterly and annual statistical data relating to federal sector Equal Employment Opportunity (EEO) complaints on its public website, reimburse the Judgment Fund for any payments made, and notify employees and applicants for employment about their rights under the federal antidiscrimination and whistleblower laws. The No FEAR Act and its implementing regulations also require federal agencies to report annually: The number of cases pending or resolved in Federal District Court in each fiscal year arising under federal antidiscrimination and whistleblower protection laws; The total number of employees disciplined and the specific nature of the disciplinary action taken for violation of antidiscrimination and whistleblower protection laws; Final year-end statistical data of federal sector EEO activity; A detailed description of the agency s policy for taking disciplinary action for conduct that is found to violate federal antidiscrimination and whistleblower protection laws; An analysis of the trends and causes of complaints of discrimination as well as practical knowledge gained through experience and actions planned or taken to improve complaint or civil rights programs with the goal of eliminating discrimination; Amounts reimbursed for any payments made from the Judgment Fund and any budgetary adjustments required to comply with the reimbursement obligation; and A written plan to train employees about their rights. This report summarizes DHS s most significant accomplishments in the DHS EEO program, particularly focusing on the area of EEO complaint processing. It evidences the Department s strong commitment to abide by merit systems principles, provide protection from prohibited personnel practices, and promote accountability. Pursuant to Congressional requirements, this Report is being provided to the following Members of Congress: The Honorable Daniel K. Inouye President pro tempore, U.S. Senate The Honorable Joseph I. Lieberman Chairman, U.S. Senate Committee on Homeland Security and Governmental Affairs 1

The Honorable Susan M. Collins Ranking Member, U.S. Senate Committee on Homeland Security and Governmental Affairs The Honorable Patrick J. Leahy Chairman, U.S. Senate Committee on the Judiciary The Honorable Charles Grassley Ranking Member, U.S. Senate Committee on the Judiciary The Honorable John Boehner Speaker of the House, U.S. House of Representatives The Honorable Peter T. King Chairman, U.S. House of Representatives Committee on Homeland Security The Honorable Bennie G. Thompson Ranking Member, U.S. House of Representatives Committee on Homeland Security The Honorable Lamar Smith Chairman, U.S. House of Representatives Committee on the Judiciary The Honorable John Conyers, Jr. Ranking Member, U.S. House of Representatives Committee on the Judiciary The Honorable Darrell Issa Chairman, U.S. House of Representatives Committee on Oversight and Government Reform The Honorable Elijah E. Cummings Ranking Member, U.S. House of Representatives Committee on Oversight and Government Reform The DHS Office for Civil Rights and Civil Liberties (CRCL) supports the Department s mission to secure the Nation while preserving individual liberty, fairness, and equality under the law. CRCL s mission includes leading the Department s EEO programs and promoting workforce diversity. DHS succeeds in part by ensuring that our workplace decisions are equitable and based upon merit. The DHS EEO program reflects a strong and collaborative partnership between CRCL and DHS Operational Components, shown in part through the various improvements in the Department s EEO program during FY 2011. FY 2011 accomplishments contained in this report include: Elimination of the backlog of cases awaiting merits Final Agency Decision (FAD); the Department had carried this backlog since its inception. 2

Completion of over 80 percent of EEO counselings in the time frame specified by regulation. Issuance of 119 timely merits FADs, which is a 600-percent increase from the 17 timely merits FADs issued in FY 2010, and is due in large part to the backlog elimination. Issuance of an updated Anti-Discrimination Policy Statement by Secretary Janet Napolitano. The achievements during FY 2011 have paved the way for continued measureable and valuable improvements in the DHS EEO program during FY 2012 and beyond. I look forward to continuing to provide information on the successes in this program in future reports. Veronica Venture Deputy Officer for Civil Rights and Civil Liberties DHS EEO and Diversity Director 3

Executive Summary The No FEAR Act is intended to reduce the incidence of workplace discrimination within the Federal Government by making agencies and departments more accountable. Section 203 of the No FEAR Act specifically requires that, not later than 180 days after the end of each fiscal year, each federal agency submit to certain Congressional committees and members an annual report with the following information: federal antidiscrimination and whistleblower protection laws, complaint activity (including Federal District Court cases), and resulting disciplinary actions; Judgment Fund reimbursements; adjustments to agency budgets to meet reimbursement requirements; and an analysis of trends, causation, and practical knowledge gained through experience. This No FEAR Act Annual Report covers FY 2011 (October 1, 2010, to September 30, 2011). At DHS, Secretary Janet Napolitano, Deputy Secretary Jane Holl Lute, and other senior DHS leaders demonstrate a strong commitment to abide by merit systems principles, provide protection from prohibited personnel practices, and promote accountability. DHS s Officer for Civil Rights and Civil Liberties provides policy and technical advice to Secretary Napolitano and senior DHS leadership on civil rights and civil liberties issues, and directs the Department s EEO and diversity management programs. During FY 2011, CRCL underwent a transition in the position of Deputy Officer and Director, EEO and Diversity Programs. The previous Deputy Officer departed DHS in October 2010, and Veronica Venture reported on duty as the new Deputy Officer in March 2011. During FY 2011, CRCL continued to partner with the DHS Undersecretary for Management, the DHS Office of the Chief Human Capital Officer (CHCO), DHS Operational Component EEO Offices, and other internal and external stakeholders to promote equality, fairness, workforce diversity, and efficiency. Throughout FY 2011, CRCL also maintained close working relationships with all Components. The CRCL Deputy Officer chairs the EEO Council in which all Component EEO and Civil Rights Directors participate. Effective communication and collaboration have continued to strengthen partnerships with the Components throughout FY 2011. These efforts are yielding new collaborative opportunities moving into FY 2012. In FY 2010 and FY 2011, CRCL and the Components worked together on the procurement and implementation of icomplaints an enterprise-wide data system to track DHS s EEO complaints. The DHS icomplaints system was launched in the fourth quarter of FY 2010, and has proved to be an extremely valuable tool in FY 2011. Component EEO offices spent significant time in FY 2011 reconciling their complaint data to ensure data integrity after migration from DHS s previous tracking system into icomplaints. In the area of EEO complaint processing, the percentage of timely counseling and timely investigations remained steady from FY 2010 to FY 2011. During FY 2011, 1,692 of the 2,096 (81 percent) requests for EEO counseling were timely completed, despite an increase in the number of requests for counseling. In FY 2011, there was a 5-percent decrease (888) in the total number of investigations DHS completed, compared to FY 2010 (939). Although the Department maintained a steady 60-percent rate of completing timely investigations, there was a 14-percent increase in the average number of processing days for investigations between FY 4

2010 (213) and FY 2011 (243), and a 6-percent decrease in the number of timely investigations completed between FY 2010 (566) and FY 2011 (531). The Departmental investigation statistics during FY 2011 were affected by an unusual 43-percent increase in the number of formal complaints filed with the Transportation Security Administration (TSA). With regard to complaints adjudication, the backlog of cases awaiting merits FADs had existed since the Department s creation. At the start of FY 2011, DHS had a backlog of 247 merits FADs. In May 2011, DHS successfully eliminated the backlog of merits FADs, months ahead of the originally expected completion date of September 2011. The strategy used to eliminate the backlog included focusing on those matters that originated prior to FY 2008 and also maximizing the services from three contractors. In total, DHS issued 457 merits FADs during FY 2011. The elimination of the merits FAD backlog allowed CRCL to focus efforts on increasing the percentage of cases processed within 60 days of the request, as required by Equal Employment Opportunity Commission (EEOC) regulations. As a result, in FY 2011, DHS issued 119 timely merits FADs, which is a 600-percent increase from the 17 timely merits FADs issued in FY 2010. In addition, there was also a dramatic reduction in the average number of processing days for merits FADs, decreasing from 807 average processing days in FY 2010 to 237 days in FY 2011 a 71-percent decrease. There are strategic efforts underway in FY 2012 to align priorities and processes with the goal of regulatory timeliness. Regarding findings of discrimination, DHS experienced a moderate decrease in the number of findings processed in FY 2011 (13) compared to FY 2010 (17). The FY 2011 findings reflected only small shifts in the bases of discrimination and issues alleged (i.e., reprisal continued to be the most-frequently asserted basis, followed by race and color; the most-frequently asserted issues were reasonable accommodation and terms/conditions of employment). A review of FY 2011 EEO complaint data shows no notable changes since the prior report in FY 2010. During FY 2011, DHS had 229 civil actions pending in Federal District Court involving the various laws covered in the No FEAR Act. During FY 2011, Federal Court judges disposed of 89 cases, of which 71 cases were decided in favor of the agency and 18 cases were settled by the parties. In FY 2011, as reported by the Components, DHS s reimbursement of the Judgment Fund totaled $2,561,000, while the amount reimbursed for attorney s fees in the same time period totaled $481,000. During FY 2011, DHS disciplined three employees for discrimination, retaliation, harassment, or other infractions of provisions of law covered by the No FEAR Act. 5

Table of Contents I. Legislative Requirement... 8 II. Background... 10 III. Results and Data... 11 A. EEO Cases in Federal District Court... 11 B. Reimbursements to Judgment Fund... 11 C. Disciplinary Actions... 11 D. EEO Complaint Data... 11 IV. Analysis of Trends and Causality... 12 A. EEO Complaint Activity... 12 B. Bases of Discrimination in EEO Complaints... 13 C. Issues in EEO Complaints... 14 V. Actions Planned and Taken to Improve the Complaints Adjudication and Complaints Management Functions Within DHS... 16 VI. A. EEO Counseling... 16 B. EEO Investigations... 16 C. Procedural Dismissals... 18 D. Findings of Discrimination... 18 1. Protected Bases... 19 2. Issues... 20 Practical Knowledge Gained Through Experience, and Actions Planned or Taken to Improve the Complaints or Civil Rights Programs... 21 A. Improvements in DHS EEO Complaints Adjudication... 22 1. Strategic Focus on Backlog Elimination... 22 2. Continued Emphasis on Improving Process Efficiencies... 23 3. Initiating Collaboration with Components... 23 4. Stability Through Staffing Changes... 24 B. DHS Operational Components... 24 1. Federal Emergency Management Agency... 24 2. Federal Law Enforcement Training Center... 25 3. Headquarters EEO Office... 26 6

4. Transportation Security Administration... 28 5. U.S. Citizenship and Immigration Services... 30 6. U.S. Coast Guard... 32 7. U.S. Customs and Border Protection... 34 8. U.S. Immigration and Customs Enforcement... 36 9. U.S. Secret Service... 38 Appendices Appendix 1: DHS No FEAR Act Federal District Court Data for FY 2011 Appendix 2: DHS No FEAR Final Year End EEO Data for FY 2006-2011 7

I. Legislative Requirement This document responds to the reporting requirements set forth in Section 203 of the No FEAR Act (Pub. L. No. 107-174), which states: (a) Annual Report. Subject to subsection (b), not later than 180 days after the end of each fiscal year, each Federal agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs of the Senate, the Committee on Government Reform of the House of Representatives, each committee of Congress with jurisdiction relating to the agency, the Equal Employment Opportunity Commission, and the Attorney General an annual report which shall include, with respect to the fiscal year (1) the number of cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) in which discrimination on the part of such agency was alleged; (2) the status or disposition of cases described in paragraph (1); (3) the amount of money required to be reimbursed by such agency under section 201 in connection with each of such cases, separately identifying the aggregate amount of such reimbursements attributable to the payment of attorneys fees, if any; (4) the number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1); (5) the final year-end data posted under section 301(c)(1)(B) for such fiscal year (without regard to section 301(c)(2)); (6) a detailed description of (A) the policy implemented by that agency relating to appropriate disciplinary actions against a Federal employee who (i) discriminated against any individual in violation of any of the laws cited under section 201(a)(1) or (2); or (ii) committed another prohibited personnel practice that was revealed in the investigation of a complaint alleging a violation of any of the laws cited under section 201(a)(1) or (2); and (B) with respect to each of such laws, the number of employees who are disciplined in accordance with such policy and the specific nature of the disciplinary action taken; (7) an analysis of the information described under paragraphs (1) through (6) (in conjunction with data provided to the Equal Employment Opportunity 8

Commission in compliance with Part 1614 of Title 29 of the Code of Federal Regulations) including (A) an examination of trends; (B) causal analysis; (C) practical knowledge gained through experience; (D) any actions planned or taken to improve complaint or civil rights programs of the agency; and (8) any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201. Further guidance on each agency s reporting obligations is provided in 5 C.F.R. 724.302, which also requires the submission of the annual report to the Director of the U.S. Office of Personnel Management (OPM) for the implementation of a best practices study and the issuance of advisory guidelines. 9

II. Background The Department of Homeland Security s (DHS) mission is to ensure a homeland that is safe, secure, and resilient against terrorism and other hazards where American interests, aspirations, and way of life can thrive. In order to maximize its effectiveness, DHS seeks to have an exemplary Equal Employment Opportunity (EEO) program. DHS was established through the Homeland Security Act of 2002, Pub. L. No. 107 296, (http://www.dhs.gov/xlibrary/assets/hr_5005_enr.pdf), and Section 103(d)(5) of the Act provides for the presidential appointment of an Officer for Civil Rights and Civil Liberties (Officer). On June 5, 2003, the Secretary of Homeland Security delegated authority to the Officer to lead the Department s EEO Programs and Diversity Initiative, and on August 1, 2006, the Officer redelegated this responsibility to the Deputy Officer for EEO and Diversity Programs, in CRCL. CRCL resides within the Office of the Secretary, and provides technical and policy advice to Department leadership on civil rights and civil liberties issues. The Officer, by statute, reports directly to the Secretary and assists senior leadership in shaping policy in ways that protect, rather than diminish, the personal liberties of all persons protected by our laws. In accordance with 6 U.S.C. 345 and 42 U.S.C. 2000ee-1, CRCL s mission is to support DHS as the Department secures the Nation while preserving individual liberty, fairness, and equality under the law. CRCL is involved in all of the Department s missions and performs four key functions to integrate civil rights and civil liberties into Department activities: 1. Advising Department leadership, personnel and partners about civil rights and civil liberties issues, ensuring respect for civil rights and civil liberties in policy decisions and implementation of those decisions. 2. Communicating with individuals and communities whose civil rights and civil liberties may be affected by Department activities, informing them about policies and avenues of redress, and promoting appropriate attention within the Department to their experiences and concerns. 3. Investigating and resolving civil rights and civil liberties complaints filed by the public regarding Department policies or activities, or actions taken by Department personnel. 4. Leading the Department s EEO programs and promoting workforce diversity and merit system principles. CRCL provides Departmental guidance and standards for establishing and maintaining effective programs for diversity management and EEO, as required under both Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. 2000(e) et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. 621 et seq., the Equal Pay Act of 1963 (EPA), 29 U.S.C. 206 (d)(1) et seq., and the Genetic Information Nondiscrimination Act of 2008 (GINA), (Pub. L. No. 110-233). To meet this objective, the Deputy Officer for EEO and Diversity Programs and her staff develop policies and plans, deliver training, conduct oversight, adjudicate EEO complaints, and submit annual reports to stakeholders including Congress, the White House Initiatives Offices, the Department of Justice (DOJ), the Equal Employment Opportunity Commission (EEOC), and OPM. 10

III. Results and Data A. EEO Cases in Federal District Court During Fiscal Year (FY) 2011, DHS had 229 civil actions in Federal District Court, pending or resolved under the laws covered in the No FEAR Act. The majority of those Federal District Court filings arose under Title VII (143), followed by filings under the ADEA (51), the Rehabilitation Act (31), the Whistleblower Protection Act of 1989 (4), and the EPA (0). During FY 2011, Federal District judges disposed of 89 cases: 71 were decided in favor of the Department and 18 were resolved by settlement. For further information regarding FY 2011 employment discrimination and whistleblower cases filed in Federal District Court against DHS, see Appendix 1. B. Reimbursements to Judgment Fund During FY 2011, as reported by DHS Components, the Department reimbursed the Judgment Fund in the total amount of $2,561,000 while the amount of reimbursement for attorney s fees in that same period totaled $481,000. The bulk of the reimbursement to the Judgment Fund derived from cases filed under Title VII, in the amount of $2,553,500. Cases arising under the Rehabilitation Act led to the remaining $7,500 reimbursement to the Judgment Fund. With respect to attorney s fees, Title VII cases involved a total amount of $336,000, Rehabilitation Act cases resulted in $135,000, and ADEA cases resulted in $10,000. C. Disciplinary Actions At DHS, whether to impose disciplinary action on an employee is determined on a case-by-case basis, depending on the specific facts or circumstances at issue. During FY 2011, DHS disciplined three employees for discrimination, retaliation, harassment, or an infraction of any provision of law covered by the No FEAR Act. One employee was removed, one employee was suspended, and one employee was reprimanded. D. EEO Complaint Data See Appendix 2 for DHS No FEAR Act web posting data for FY 2011. 11

IV. Analysis of Trends and Causality A. EEO Complaint Activity Between FY 2006 and FY 2011, DHS experienced an 18-percent increase in filings of new statutory and non-statutory EEO complaints. During FY 2011, the filing of 1,283 new statutory and non-statutory EEO complaints equated to a 7-percent increase (89 more complaints) from FY 2010. In FY 2009, there were 1,457 complaints filed; however, as noted in DHS s FY 2010 No FEAR Act Annual Report, the FY 2009 data was skewed as a result of 359 individual complaints filed in FY 2009 after the closure of a Federal Emergency Management Agency (FEMA) facility in Puerto Rico. As a result, the trend and rate of increased complaint filings above does not include these FEMA cases, which are pending in Federal District Court. 1 See Figure 1. Figure 1: Complaints Filed, FY 2006 FY 2011 1,400 1,200 1,083 1,086 1,145 1,098 1,194 1,283 1,000 800 600 400 200 0 FY 2006 FY 2007 FY 2008 FY 2009 FY2010 FY2011 359 DHS Wide FEMA Puerto Rico Table 1 compares DHS s total workforce complaint filing rate against the rate of other similarlysized federal agencies. (Although FY 2011 data is used for DHS, FY 2010 information is used for the other agencies because FY 2011 federal-wide data is not yet available). In FY 2011, the DHS complaint filing rate was 6.1 complainants per 1,000 employees. This rate is on par with the FY 2010 filing rate at the Department of Veterans Affairs (VA) (6.7 complainants per 1,000 employees) and slightly higher than the FY 2010 filing rate at DOJ (5.6 complainants per 1,000 employees). The DHS FY 2011 filing rate was approximately 26 percent higher than the FY 2010 Government-wide Cabinet level agencies filing rate (4.5 per 1,000 employees) and approximately 44 percent higher than the FY 2010 Department of Defense filing rate (3.4 per 1,000 employees). 1 The complaints arising out of the closure of the Puerto Rico facility are pending in Federal District Court as a single complaint with 359 plaintiffs. Thus, this one case is included in the 229 civil actions noted in Section III(A). 12

Table 1: Rate of Complaints Compared Across Agencies Agency* Civilian Number of Number of Complainants/ Workforce Complaints Complainants 1000 Employees DHS (FY 2011) 199,452 1,283 1,220 6.1 Dept. of Veterans Affairs 307,322 2,199 2,079 6.7 Dept. of Justice 117,843 678 666 5.6 All Cabinet-level Agencies 3,401,940 16,249 15,261 4.5 Dept. of Defense 893,491 3,215 3,030 3.4 *Source for non-dhs agencies data: Annual Report on the Federal Workforce Fiscal Year 2010, http://www.eeoc.gov/federal/reports/fsp2010/upload/fy-2010-annual-report-part-i-eeo-complaint-processing.pdf B. Bases of Discrimination in EEO Complaints During FY 2011, DHS s most-frequently alleged bases of discrimination in formal EEO complaints were, in order of frequency: reprisal, sex, and race/color. See Figure 2, below. This is consistent with the most-frequently alleged bases in FY 2010. To assist in interpreting trends related to asserted bases, note that the Department s workforce increased by about 4 percent (from 191,150 to 199,452 employees) from FY 2010 to FY 2011. While total complaints increased 7 percent, from 1,194 to 1,283, the total alleged bases of discrimination increased by 11 percent, from 2,196 to 2,476. Thus, half of the increases described below in particular types of claimed discrimination reflect not more claims, but more alleged bases per claim. Reprisal: DHS s FY 2011 reprisal claims (523) were higher than reprisal claims in prior years (493 in FY 2010; 418 in FY 2009; 432 in FY 2008; 389 in FY 2007; and 391 in FY 2006). The frequency of reprisal claims as the leading basis at DHS is consistent with government-wide data for reprisal claims, which show that reprisal is the most-frequently alleged basis of discrimination across the Federal Government from FY 2006 to FY 2010. At DHS, as elsewhere in the Federal Government, reprisal claims are nearly always joined with an underlying EEO complaint on the basis of race, national origin, sex, etc. See EEOC s Annual Report on the Federal Workforce FY 2010 (http://www.eeoc.gov/federal/reports/fsp2010/index.cfm) Sex: During FY 2011, DHS received 407 complaints alleging discrimination on the basis of sex an increase of only 2 cases over FY 2010 (405). Since FY 2006, sex discrimination claims have numbered among the three most-frequently filed bases of discrimination. In the FY 2010 No FEAR Act Annual Report, DHS announced a plan to pay particular attention to this issue in order to ascertain whether the FY 2010 experience was anomalous or the beginning of a trend. However, with only a de minimis increase this year, it is not possible to draw a conclusion about the existence of a trend. DHS will continue to monitor this basis for future trends. Race/Color: During FY 2011, race/color discrimination constituted the third most-frequently filed basis of discrimination, with 379 complaints, which is a decrease of 7 cases from FY 2010 (386). For information on these and other bases asserted, see Figure 2, which sets out data from FY 2010 and FY 2011. 13

Figure 2: Bases of Discrimination, FY 2010 and FY 2011 600 500 523 493 400 300 405407 386 379 372 339 295 334 200 199 187 FY 2010 100 51 56 40 79 FY 2011 0 Reprisal Sex Race/Color Age Disability National Origin * Nearly all color complaints also reference race. ** Non-EEO includes parental status and sexual orientation. Religion Non-EEO C. Issues in EEO Complaints The two most-frequently raised issues in discrimination complaints during FY 2011 involved non-sexual harassment 2 (raised in 434 complaints) and promotion/non-selection (raised in 218 complaints). These two issues ranked among the three most-frequent issues in discrimination claims at DHS in each of the past three fiscal years. The prevalence of these issues is consistent with government-wide trends (i.e., these two issues ranked among the three most-frequently raised issues in discrimination complaints across the Federal Government from FY 2006 to FY 2010, as reported in the EEOC s Annual Report on the Federal Workplace FY 2010 (http://www.eeoc.gov/federal/reports/fsp2010/index.cfm). And as shown in Figure 3, terms/conditions of employment was raised in 204 complaints, ranking third among the issues most-frequently raised at DHS during FY 2011. 2 The No FEAR Act requires reporting of complaints involving sexual harassment (i.e., sex-based claims involving actionable unwelcome conduct of a sexual nature) and non-sexual harassment (i.e., claims involving actionable unwelcome conduct not of a sexual nature, e.g., race, sex, national origin, color, religion, age, disability, or reprisal). 14

Figure 3: Issues in Complaints, FY 2011 500 450 434 400 350 300 250 200 150 234 204 186 154 100 50 0 Non-Sexual Harassment Promotion/ Non-Selection Terms/Conditions of Employment Disciplinary Action Termination 15

V. Actions Planned and Taken to Improve the Complaints Adjudication and Complaints Management Functions Within DHS A. EEO Counseling During FY 2011, DHS continued the progress made in FY 2010 in the percentage of timelycompleted requests for counseling. 3 In FY 2011, counseling was completed for 2,096 cases, and 81 percent (1,692) of these cases were timely completed. As in FY 2010, the percentage of timely counseled cases in FY 2011 remained steady at 81 percent. In FY 2011, however, it is important to note there was a 13-percent (1,692) increase in the number of cases that were timely counseled in comparison with the number counseled in FY 2010 (1,495). The effectiveness of the Department s counseling programs allowed DHS to maintain the percentage of timely completions, even though case volume increased. See Table 2. Table 2: EEO Counseling at DHS, FY 2006 FY 2011 2006 2007 2008 2009 2010 2011 Total Number 2,223 2,240 2,064 2,479 1,848 2,096 Timely Number 1,796 1,709 1,497 1,684 1,495 1,692 Percentage 81 76 73 68 81 81 During FY 2011, four DHS Components provided timely counseling in 85 percent or more cases. In particular, for the second year in a row, U.S. Customs and Border Protection (CBP) completed 100 percent (574) of its cases within the regulatory time period. Other Components that had a high percentage of timely cases counseled during FY 2011 include: U.S. Citizenship and Immigration Services (USCIS), timely completing 124 of 127 (98 percent); U.S. Coast Guard (USCG), timely completing 76 of 78 (97 percent); and Federal Law Enforcement Training Center (FLETC), timely completing 21 of 24 (88 percent). Notably, the Transportation Security Administration (TSA) significantly increased the number of cases timely counseled. Specifically, in FY 2010, TSA timely completed counseling in 294 of 475 cases (62 percent), compared with timely completed counseling in 443 of 675 cases (66 percent) in FY 2011. B. EEO Investigations In FY 2011, there was a 5-percent decrease in the total number of investigations (888) DHS completed compared with the number completed in FY 2010 (939). Although the total number 3 In accordance with 29 C.F.R. 1614.105(d), counseling must be completed within 30 calendar days, unless the aggrieved person agrees to extend the counseling period up to an additional 60 calendar days. 16

of timely investigations also decreased from 566 in FY 2010 to 531 in FY 2011, the overall percentage of timely investigations remained even at 60 percent. DHS experienced an increase of 30 days (14 percent) in the number of average processing days during FY 2011. See Table 3. Table 3: EEO Investigations at DHS, FY 2006 FY 2011 2006 2007 2008 2009 2010 2011 Total Number 796 742 787 861 939 888 Timely Number 254 375 448 561 566 531 Percentage 32 51 57 65 60 60 Average Days 279 248 215 217 213 243 During FY 2011, two DHS Components stood out for their timely completion of EEO investigations: USCIS and CBP. USCIS timely completed 99 percent of its 82 investigations, and CBP timely completed 99 percent of its 268 investigations. Notably, CBP accomplished this high rate of timely investigations despite a 9-percent increase in the number of investigations (247 in FY 2010 and 268 in FY 2011). USCIS maintained the lowest average processing rate (134 days) of all DHS Components. The United States Secret Service (USSS) showed marked improvement in timely completion of investigations from FY 2010 to FY 2011. In FY 2010, USSS timely completed 18 percent 2 of 11 investigations. In contrast, in FY 2011, USSS timely completed 42 percent 8 of 19 investigations. The investigation statistics for DHS as a whole in FY 2011 were significantly affected by several developments within TSA s EEO program. TSA experienced a 43-percent increase in the number of formal complaints filed in FY 2011 (439) compared with the number filed in FY 2010 (306), which resulted in a 24-percent increase (250) in the number of investigations TSA completed when compared to the number completed in FY 2010 (201). The increase in complaints resulted in a backlog of cases that were untimely investigated, which was compounded by TSA s lack of contract investigation support for over 4 months in FY 2010. TSA s timely investigation rate was also negatively influenced by a temporary 40-percent decrease in TSA s EEO Specialist staffing level in FY 2011. The increase in the number of investigations and backlog cases resulted in a 42-percent decrease (53) in the number of timely investigations completed by TSA in FY 2011, when compared to the 91 timely investigations completed in FY 2010. In FY 2011, TSA experienced a 27-percent increase (303) in the average number of processing days, compared to 238 days in FY 2010. TSA responded to these challenges throughout FY 2011 by implementing in-house investigations; increasing engagement with complainants to proactively manage timeliness efforts; providing on-site training to investigative vendors to optimize timely and quality investigative efforts; and aggressively addressing staffing needs. 17

C. Procedural Dismissals An agency may dismiss an EEO complaint for several reasons, including: failure to state a claim; untimely initial contact with an EEO counselor; filing the identical claim in Federal District Court; and failure to provide necessary information to the agency, among other reasons. See 29 C.F.R. 1614.107(a). DHS Operational Components submit requests to CRCL s Complaints Management and Adjudication Section for full dismissal of complaints that meet appropriate regulatory criteria. During FY 2011, CRCL issued 163 dismissals, which is significantly lower than the 550 dismissals issued in FY 2010; however, the FY 2010 dismissals were an anomaly, as they included 359 cases filed as a result of the closure of a FEMA facility in Puerto Rico and the resulting procedural dismissal of those complaints by DHS when the complainants filed suit in U.S. District Court. The remaining 191 dismissals in FY 2010 were 15 percent higher than the 163 dismissals in FY 2011, a year which resulted in the lowest number of dismissals between FY 2006 and FY 2010. The 153 average processing days in FY 2011 was also the lowest number of days between FY 2006 and FY 2010. See Table 4. Table 4: DHS Procedural Dismissals, FY 2006 FY 2011 2006 2007 2008 2009 2010 2011 Total Number 304 187 247 204 550 163 Average Processing Days 254 257 220 241 385 153 D. Findings of Discrimination Section 203(a)(7) of the No FEAR Act requires federal agencies to examine trends and causes behind the data in their reports over the past five years. The following tally of DHS s findings of discrimination from FY 2006 to FY 2011 illustrates DHS s EEO complaint trends and causes based on the overall number of findings at the Department, the protected bases upon which the findings were made, and the types of claims or issues involved in the findings during this period. Overall, from FY 2006 to FY 2011, DHS has processed 115 findings of discrimination through the issuance of merits FADs or Final Orders following an EEOC Administrative Judge s (AJ) decision. FY 2011 does not show any systemic EEO issues or trends compared to prior years. In FY 2011, DHS processed 13 cases in which findings of discrimination were made. These cases included 2 merits FADs (without an EEOC AJ s decision); 6 decisions from an EEOC AJ finding discrimination that DHS fully implemented; and 5 EEOC AJ decisions finding discrimination that DHS did not fully implement, but instead appealed to EEOC s Office of Federal Operations (OFO). The 13 findings of discrimination represent a decrease from FY 2010 when DHS processed 17 findings of discrimination, and it is lower than the Department s average annual number of findings (20) from FY 2006 to FY 2010. See Figure 4. 18

Figure 4: DHS Findings, FY 2006 FY 2011 35 30 25 20 15 10 5 0 29 21 23 17 12 13 FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 1. Protected Bases In FY 2011, the majority of findings were based on the protected bases of race (4), disability (4), and reprisal (4). This marks a variation from the previous two fiscal years, in which there were more findings based on reprisal than on any other basis; FY 2010 (8) and FY 2009 (11). In FY 2011, the remaining findings were based on the protected bases of color (2), religion (2), sex (1), national origin (1), and age (1). It is important to note that the total number of bases within findings of discrimination may exceed the total number of findings issued because one decision may find discrimination on more than one basis. The total number of findings by bases from FY 2006 to FY 2011 is shown in Figure 5. 19