The U.S. Office of Special Counsel (OSC) has agreed with an EPA whistleblower who alleged that the Agency’s Office of Civil Rights (OCR) failed to meet its regulatory obligation to respond in a timely manner to allegations that the Agency has violated Title VII of the 1991 Civil Rights Act. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. The whistleblower, who had worked as an EPA information technology specialist, specifically contended that the OCR systematically failed to issue Final Agency Decisions (FADs) within the 60-day time frame required by U.S. Equal Employment Opportunity Commission (EEOC) regulations. The OSC notes that since 2011, the OCR has taken an average 491 days to issue the FADs. The OSC also agreed with the whistleblower’s contention that EPA’s violation results from gross mismanagement.
EPA investigates itself
The OSC is authorized by statute to receive information from federal employees alleging misconduct or mismanagement by agencies. The OSC does not itself conduct follow-up investigation. Rather, if the OSC determines that there is a substantial likelihood that the alleged misconduct or mismanagement exists, the OSC may require the agency to conduct an investigation and submit a written report.
EPA’s report agreed that over the last 6 years, the Agency has consistently failed to meet the 60-day FAD deadline. However, the Agency also said, the delay in issuing the FADs is the result of “systemic issues” with EPA’ s internal procedures for processing FAD requests, and not the result of waste, fraud, or gross mismanagement on the part of any Agency employee.
Process logjam
In its report, the EPA points to the existing “process” used to issue the FADs. The Agency lists 10 specific steps that must be taken to complete an FAD, including multiple reviews and associated revisions by OCR’s team leader, staff attorney, assistant director, and director. These steps may be further prolonged if supplemental investigations are needed. Moreover, the EPA cites the lack of a template for writing the FADs, a shortage of resources for addressing complaints, and a deep backlog of complaints.
The report includes several measures the Agency says it “should” take to correct the violation. These include addressing the backlog in an expedited manner; using a LEAN Process Improvement Exercise to increase the efficiency of the Agency’s FAD issuance; and drafting and utilizing an FAD template/model document to ensure consistency and efficiency in the drafting of the FADs.
EPA’s conclusion at odds with evidence
In its obligatory letter to President Donald Trump, the OSC reports that the whistleblower disputed the Agency’s determination that no gross mismanagement occurred. “Gross mismanagement means a management action or inaction which creates a significant adverse impact upon the Agency’s ability to accomplish its mission,” the whistleblower said. Given that inaction on the FADs has been consistent for 6 years, the failure to correct the delays “appears to constitute gross mismanagement,” the ex-employee added.
“[The whistleblower’s] comments are particularly compelling, as they highlight that the Agency’s conclusions regarding gross mismanagement appear at odds with the evidence adduced in the investigation,” wrote the OSC to the president.
OCS’s letter and EPA’s report are available here.