NO FEAR ACT ANNUAL
REPORT

FISCAL YEAR 2010


Graphic image of USDA Logo

 

U.S. Department of Agriculture

 

NONDISCRIMINATION STATMENT

The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

To file a complaint of discrimination, write to USDA, Director, Office of Adjudication, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410, or call (202) 401-0005 (voice - local), (800) 895-3272 (voice - toll-free), or (866) 377-8642 (Relay), or (800) 845-6136 (Spanish). USDA is an equal opportunity provider and employer.

 

 

Suggested Citation:

 

The No FEAR Act Annual Report for Fiscal Year 2010, Washington, D.C., USDA, Director, Office of Adjudication, Office of the Assistant Secretary for Civil Rights.

Table of Contents

Executive Summary

PART I: USDA Formal EEO Complaints For Fiscal Years 2009 - 2010

Section A - Number of Formal EEO Complaints and Number of Filers

Section B - Most Frequently Cited Bases in Formal EEO Complaints at USDA

Section C - Most Frequently Cited Issues in Formal EEO Complaints at USDA

Section D - EEO Processing Stages

(1) Average Number of Days for Completion of Selected EEO Stages
(2) Pending Complaints at Various Stages
(3) Pending Formal Complaints Exceeding the 180-Day Investigation Requirement

Section E - Final Agency Actions with a Finding of Discrimination

Section F - Analysis, Experience, and Actions

(1) Causal Analysis
(2) Experience Gained by USDA in the Processing of Formal EEO Complaints
(3) Past and Future Actions by USDA Relating to EEO Complaints Processing

PART II: USDA Reimbursement to Judgment Fund for Fiscal Year 2010

PART III: USDA Disciplinary Actions and Reports 19 for Fiscal Years 2009 - 2010

PART IV: USDA Federal Court Litigation 23 Statistics for Fiscal Year 2010

Appendix

 

Executive Summary

Annual Reporting Requirements

This is USDA's sixth annual report submitted pursuant to the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), Public Law No. 107-174, Section 203.

The No FEAR Act mandates that Federal agencies report certain information for Fiscal Year (FY) 2010. This report contains the:

In addition, the No FEAR Act requires that USDA provide an analysis of the information submitted in the report, including: (1) an examination of trends; (2) causal analysis; (3) practical knowledge gained through experience; and (4) any actions planned or taken to improve its complaint or civil rights programs. USDA is also required to report any ascertainable adjustments made in its budget as a result of its compliance with the reimbursement requirement.

USDA's Mission and Mission-Related Functions

The mission of USDA is to provide leadership on food, agriculture, natural resources, and related issues based on sound public policy, the best available science, and efficient management.

USDA strives to:

Summary of the Report

Congress passed the No FEAR Act in May 2002 as a vehicle for reducing discrimination and retaliation in Federal agencies, increasing agency accountability, emphasizing training for managers in the management of a diverse workforce, and encouraging dispute resolution and communication skills. The annual report summarizes the efforts made by USDA to carry out the mandates of the No FEAR Act.

As demonstrated in greater detail below, USDA experienced a decrease of 55 EEO complaints filed from FY 2009 to FY 2010, ending the EEO inventory at the end of FY 2010 with 841 complaints. The number of filers, however, increased by 67 from FY 2009 to FY 2010. In addition, the number of findings of discrimination also increased from FY 2009 to FY 2010. Data illustrating this trend is found in the Appendix.

A review of disciplinary actions taken against employees who violated Federal antidiscrimination laws and whistleblower protection statutes shows that in FY 2010, 13 employees were disciplined; while in FY 2009 16 employees were disciplined. This decrease in disciplinary actions between FY 2009 and FY 2010 indicates a continual level of accountability present within USDA. The reimbursement provisions of the No FEAR Act continue to result in financial accountability for sub-agencies and individual staff offices within USDA.

During FY 2010, USDA has implemented several initiatives that will assist in its effort to reduce the number of EEO complaints. These initiatives are outlined below:

 

PART I

USDA Formal EEO Complaints
for
Fiscal Year 2009 - 2010

 

Section A- Number of Formal EEO Complaints and Number of Filers at USDA

Introduction

This section contains information regarding the number of formal EEO complaints filed and the number of filers for FYs 2009 and 2010.

Summary of Data

Table 1 below indicates the number of formal EEO complaints filed with USDA by fiscal year and the number of individuals who filed complaints. It shows a decrease in the number of complaints filed over the prior year and a slight increase in the number of filers for the current year. (See Graph 1).

In FY 2010, the number of complaints filed was 473, whereas, in FY 2009 the number of complaints filed was 528.  This represents a 10 percent decrease in complaints filed.  However, the number of filers in FY 2010 was 461, which is 67 more than the number of filers (394), in FY 2009.

 

Table 1 Number of Formal EEO Complaints and Number of Filers at USDA

Fiscal Year

Number of Complaints

Number of Filers

2009

528

394

2010

473

461

 

Graph 1
Formal EEO Complaints and Filers
at USDA


Image of Graph 1, Formal EEO Complaints and Filers at USDA.  
Graph shows a decrease in the number of complaints filed over the prior year and a slight increase in the number of filers for the current year.

 

Section B- Most Frequently Cited Bases in Formal EEO Complaints at USDA

Introduction

This section contains information regarding the most frequently cited bases in formal EEO complaints for FYs 2009 and 2010. The basis of the complaint is the protected characteristic that the complainant alleges forms the motivation for the discriminatory conduct. The bases protected by EEO statutes are race, color, religion, national origin, sex, disability, age and retaliation (for participating in the EEO complaint process or for opposing practices made illegal under the EEO laws). A complaint brought under the Equal Pay Act of 1963, as amended, is considered to be a complaint based on sex.

Summary of Data

Table 2 provides data on all bases alleged in formal EEO complaints filed with USDA. Of all bases, the four most frequently cited in formal EEO complaints filed in FY 2010 are: (1) retaliation; (2) race; (3) sex; and (4) age. In FY 2009, the four most frequently cited bases were: (1) retaliation; (2) race; (3) sex; and (4) age. These four bases are illustrated in Graph 2, which shows the trend over the two-year reporting period.

Table 2 Most Frequently Cited EEO Bases in Formal EEO Complaints at USDA

EEO Bases in Formal EEO Complaints

Year

Race

Color

Religion

Sex

National Origin

Disability

Age

Retaliation

Other*

2009

181

44

13

178

61

91

168

248

33

2010

166

23

16

159

49

97

157

181

44

*Other USDA protected bases include marital status, parental status, and sexual orientation, political beliefs, genetic information and familial status.

Graph 2 - Most Frequently Cited Bases

Image of Graph 2, Most frequently cited EEO Bases. 
Graph shows the trend for the four bases over the two-year reporting period. 
Each Base is described directly below the graph.

Complaints Alleging Retaliation

“Retaliation” is the most frequently alleged basis in formal EEO complaints at USDA. This is true for both FYs 2010 and 2009. However, there was a decrease in the number of complaints filed in FY 2010 from FY 2009. The basis of “Retaliation” was cited in 181 formal EEO complaints in FY 2010, compared to 248 complaints in FY 2009, a 27 percent (67 complaints) decrease over a two-year period.

Complaints Alleging Race Discrimination

“Race” is the second most frequently alleged basis in formal EEO cases at USDA. The basis of “Race” was cited in 166 formal EEO complaints in FY 2010, compared to 181 complaints in FY 2009, an eight percent decrease (15 complaints) over a two-year period.

Complaints Alleging Sex Discrimination

"Sex” was the third most frequently alleged basis in formal EEO cases at USDA in FY 2010. The basis of “Sex” was cited in 159 formal EEO complaints in FY 2010, compared to 178 complaints in FY 2009, an 11 percent decrease (19 complaints) over a two-year period . </p>

Complaints Alleging Age Discrimination

"Age” was the fourth most frequently alleged basis in formal EEO cases at USDA in FY 2010. The basis of “Age” was cited in 157 formal EEO complaints in FY 2010, compared to 168 complaints in FY 2009, a seven percent (11 complaints) decrease over a two-year period.

 

Section C- Most Frequently Cited Issues in Formal EEO Complaints at USDA

Introduction

This section contains information regarding the most frequently cited issues in formal EEO complaints for FYs 2009 and 2010. The No FEAR Act requires Federal agencies to post data regarding the nature of the issues raised in EEO complaints. The issue of a complaint is the specific matter about which the individual is complaining or the alleged discriminatory incident for which the individual is seeking redress. Table 3 contains a list of issues most commonly raised in complaints. The “Other” category captures all issues not specifically listed.

Summary of Data

Table 3 provides the most frequently cited issues in formal EEO complaints filed with USDA. The three EEO issues most frequently cited in FY 2010 were: (1) Harassment; (2) Promotion/Non-Selection; and (3) Other. Graph 3 shows the trends for these three issues over the two-year reporting period.

“Harassment” was the most frequently cited issue in formal EEO cases in FY 2010, with 190 filings.  In contrast, “Harassment” had 252 filings in FY 2009.  There was a 25 percent decrease (62 complaints) from FY 2009 to FY 2010.

“Promotion/Non-selection” was the second most frequently cited issue in formal EEO cases in FY 2010, with 103 filings.  In contrast, “Promotion/Non-Selection” had 117 filings in FY 2009.  There was a 12 percent decrease (14 complaints) from FY 2009 to FY 2010.

“Other” was the third most frequently cited issue in formal EEO cases in FY 2010, with 64 filings. In contrast, “Other” had 57 filings in FY 2009. There was an increase of 12 percent (7 complaints) from FY 2009 to FY 2010.

 

Table 3
EEO Issues in Formal EEO Complaints

EEO Issues in Formal EEO Complaints

Issue

2009

2010

Appointment/Hire

20

23

Assignment of Duties

80

51

Awards

21

11

Conversion to Full Time

0

1

Disciplinary Action

70

58

Duty Hours

9

5

Evaluation/Appraisal

66

59

Examination/Test

2

1

Reassignment

35

25

Training

35

22

Time and Attendance

31

22

Termination

35

34

Medical Examination

0

1

Pay/Overtime

5

10

Promotion/Non-selection

117

103

Harassment

252

190

Reinstatement

1

2

Retirement

6

1

Terms and Conditions of Employment

49

38

Reasonable Accommodation

28

32

Other

57

64

Graph 3
EEO Issues in Formal EEO Complaints

Graphic image of Graph 3, EEO Issues in Formal EEO Complaints. Graph 3 shows the trends for these three issues described in the Summary of Data above, over the two-year reporting period.

 

Section D- EEO Processing Stages

Introduction

This section contains data regarding selected stages and associated processing times for formal EEO complaints processed during FYs 2010 and 2009.  The formal EEO complaint process has various stages. Not all formal complaints complete all stages.  These stages are: (1) Investigation (which includes Letter of Acceptance); (2) Final Agency Action with EEOC Hearing; (3) Final Agency Action without EEOC Hearing; and (4) Dismissal. Formal EEO complaints may be withdrawn or settled at any stage and may be dismissed at various stages.

Summary of Data

The following is an analysis of data for the four EEO stages. This section contains data on: (1) the average number of days for completion of selected stages; (2) pending complaints at various stages of the EEO process; and (3) pending formal complaints exceeding the 180-day investigation requirement.

(1) Average Number of Days for Completion of Selected EEO Stages

Table 4 below provides the average number of days for completing a formal EEO complaint at each stage.  The data revealed an upward trend (as shown in Graph 4) in the average number of days for an investigation, in the Final Agency Action without an EEOC hearing, in the Final Agency Action with a hearing and in dismissals.

Table 4
Average Number of Days for Completion of Each EEO Stage

Year

Investigation

Final Agency
Action with
EEOC
Hearing

Final Agency
Action without
EEOC
Hearing

Dismissals

2009

161

177

678

248

2010

314

190

832

257

Graph 4
Average Number of Days for Completion of Each EEO Stage

Graphic image of Graph 4, Average Number of Days for Completion of Each EEO Stage. Graph shows an upward trend in the average number of days for an investigation, in the Final Agency Action without an EEOC hearing, in the Final Agency Action with a hearing and in dismissals.

(2) Pending Complaints at Various Stages

Table 5 below illustrates the number of pending EEO complaints in FYs 2010 and 2009, at each EEO stage.

Graph 5 shows an upward trend in pending complaints in investigations and appeals and a downward trend in pending complaints for hearings and Final Agency Actions.

Table 5
Pending EEO Formal Complaints by Stage

Year

Investigation

Hearing

Final Agency Action

Appeal

2009

212

372

157

24

2010

356

296

124

25

Graph 5
Pending EEO Formal Complaints by Stage

Grapic Image of Graph 5. Graph shows an upward trend in pending complaints in investigations and appeals and a downward trend in pending complaints for hearings and Final Agency Actions.

(3) Pending Formal Complaints Exceeding the 180-Day Investigation Requirement

Table 6 and Graph 6 shows a 12 percent increase for pending formal complaints that exceed the 180-day investigation requirement over the two-year reporting period.

Table 6
Pending Formal EEO Complaints Exceeding the 180-Day Investigation
Requirement

Year

Pending Complaints Exceeding the 180-day
Investigation Requirement

2009

171

2010

192

Graph 6
Pending Formal EEO Complaints Exceeding 180-Day
Investigation Requirement

Graphic Image of Graph 6. Graph shows a 12 percent increase for pending formal complaints 
  that exceed the 180-day investigation requirement over the two-year reporting 
  period

 

Section E - Final Agency Actions with a Finding of Discrimination

Introduction

Final Agency Actions involving a finding of discrimination may be issued on the record or following an EEOC administrative hearing. The final actions involving a finding of discrimination include complaints with a variety of bases and issues. The No FEAR Act requires Federal agencies to post the total number of final actions involving a finding of discrimination, along with the issues and bases for those complaints.

Summary of Data

Table 7 and Graph 7 shows that the number of findings of discrimination issued with an EEOC Administrative Hearing increased by four in FY 2010 from FY 2009, and without an EEOC Administrative Hearing increased by nine in FY 2010 from FY 2009.

Table 7
Final Agency Actions with a Finding of Discrimination

Year

With an EEOC
Administrative Hearing

Without an EEOC
Administrative Hearing

2009

3
13

2010

7
22

Graph 7
Final Agency Actions with a Finding of Discrimination

Graphic image of Graph 7.  Graph shows that the number of findings of discrimination issued with 
  an EEOC administrative hearing increased by four in FY 2010 and without an EEOC 
  administrative hearing increased by 9 in FY 2010

 

Section F - Analysis, Experience, and Actions

Introduction

The No FEAR Act requires: (1) an examination of trends; (2) a causal analysis; (3) practical knowledge gained through experience; and (4) any actions planned or taken to improve USDA's complaint or civil rights programs. The prior sections (Sections A-E) provided an examination of trends. Described below are various observations related to the remaining three areas.

(1) Causal Analysis

USDA and its sub-component agencies identified various factors impacting the filing of formal EEO complaints. Examples are as follows:

    1.   The Agricultural Marketing Service (AMS) reported a decrease in the number of formal complaints filed in FY 2010 (12) as compared to 20 formal complaints filed in FY 2009. This 40 percent decrease is attributed to increased outreach by the AMS civil rights program to increase awareness of prohibited discriminatory practices.  AMS conducted additional trainings and worked proactively during the pre-complaint and informal complaint stages to resolve workplace differences.

     

    2.   The Animal and Plant Health Inspection Service (APHIS) reported a decrease of 16 complaints filed in FY 2010. Specifically, there were 45 formal complaints filed in FY 2010, as compared to 61 formal complaints filed in FY 2009.  APHIS attributes the decrease in part to the continued education of managers and supervisors and their early involvement in resolution.

     

    3.      The Agricultural Research Service (ARS) reported a slight decrease in the number of complaints filed in FY 2010. This slight decrease in the number of complaints filed in FY 2010 is being attributed to training and the agency encouraging the use of mediation and cooperative resolution to resolve complaint matters.  

     

    4.      The Economic Research Service (ERS) reported an increase of one complaint for FY 2010 from FY 2009 (2).  ERS attributes the increase to allegations of harassment and reprisal.

     

    5.      The Foreign Agricultural Service (FAS) reported an increase of one in formal complaints filed in FY 2010.  FAS attributes this slight increase to complaints filed on the basis of religion.

     

    6.      The Food and Nutrition Service (FNS) reported an increase of complaints filed in FY 2010.  FNS attributes the increase to employee awareness of their EEO rights.

     

    7.      The Forest Service (FS) reported an increase in the number of formal EEO complaints filed in FY 2010 compared to those filed in FY 2009. The increase was attributed to complaints filed on the basis of sex (female).

     

    8.      The Farm Service Agency (FSA) reported an increase in formal complaints filed in FY 2010.  FSA attributes this increase to a lack of training and knowledge of EEO/Civil Rights laws and regulations. 

     

    9.      The Food Safety and Inspection Service (FSIS) reported a decrease in the number of formal complaints filed in FY 2010.  FSIS attributes the decrease to increased training and education efforts by the civil rights division and increased resolution of complaints by EEO Counselors at the lowest level possible. 

     

    10.  The Grain Inspection, Packers and Stockyards Administration (GIPSA) reported an increase in the number of complaints filed in FY 2010. GIPSA attributes the increase to the number of complaints filed on the basis of age. GIPSA indicated that this may be due to the fact that 71 percent of GIPSA's full-time and part-time workfofrce is over the age of 40.

     

    11.  The National Agricultural Statistics Service (NASS) reported that the number of complaints and filers decreased in FY 2010 compared to FY 2009.  This decrease is attributed to the message presented by the Administrator in his Civil Rights Policy Statement and the follow-up reminders presented at new employee orientations and at the required supervisory and top management training sessions.

     

    12.  The National Institute of Food and Agriculture (NIFA) (formerly known as the Cooperative State Research, Education and Extension Service) reported an end of year balance of zero complaints for FY 2010. NIFA attributes their zero complaint filings to effective communication and commitment to EEO, Human Resources, and workforce diversity training. 

     

    13.  The Natural Resources Conservation Service (NRCS) reported a significant decrease of the total number of complaints filed in FY 2010. NRCS attributes the decrease of complaints to it mandatory comprehensive training program that provides bi-annual training to all employees, managers, and supervisors. The training places special emphasis on proactive prevention of unlawful discrimination.

     

    14.  The Risk Management Agency (RMA) reported that the number of formal complaints filed in FY 2010 increased by one from FY 2009.  RMA attributes the increase in complaints to management perceptions and decision, poor interpersonal relationships and long standing problems between management officials and employees.

     

    15.  The Rural Development (RD) Agency reported a decrease in the number of complaints filed in FY 2010 compared to those filed in FY 2009.  This decrease is attributed to an increased mandatory training given to managers.  In addition, a number of management control reviews were conducted during FY 2010 in which employees took the opportunity to ask questions and receive clarification on EEO policies and procedures, thereby increasing the level of awareness of the difference in the EEO and Administrative/Negotiated Grievance procedures.

(2) Experience Gained by USDA in the Processing of Formal EEO Complaints

USDA has learned the following from its past experience in processing and addressing formal EEO complaints:

(3) Past and Future Actions by USDA Relating to EEO Complaints Processing

USDA has taken several actions that have proven effective in improving its formal EEO complaint processing. USDA is also introducing new initiatives to reduce complaints in future years. These past and future actions include:

  1. USDA instituted an EEO Complaint Resolution Initiative which aggressively seeks to resolve formal complaints.

  2. The USDA's Civil Rights Programs and Human Resources staff have collaborated to train managers and employees on cultural and diversity sensitivity and appropriate conduct. These trainings targeted discrimination on the basis of disability and proper management of employees' medical documentation.

  3. USDA will monitor data on repeat filers to determine whether they are filing on the same issues and against the same managers, and whether the same or new employment issues are raised in new complaints after prior complaints were settled or otherwise resolved. This aids in identifying approaches and solutions to effectively address employment issues raised by repeat filers that their previous settlement agreement or complaint decision was unable to adequately resolve.

  4. USDA has employed conflict coaching to engage both complainants and management. This process includes asking questions to determine what will best empower each side to reach their objectives and develop stronger communication skills for difficult conversations.

  5. USDA has incorporated more creative terms into settlement agreements in order to satisfy both parties in a dispute without a large financial loss to the Agency. FY 2010 settlement agreements included terms that instituted sensitivity and diversity training for managers. This helped the complainants understand that USDA took their concerns seriously and had a genuine interest in fixing the workplace dilemmas at their foundations instead of trying to conceal the issues. USDA also relied on settlement terms such as detail opportunities and training courses for complainants.

  6. USDA (APHIS) will continue to maintain its 1-800 helpline (1-800-372-7428) for supervisors and managers to contact the EEO Specialists for assistance in dealing with civil rights and employment complaint issues.

  7. USDA will promote the utilization of the CRP to enhance manager and employee communication and aid in conflict management.

  8. USDA provided a refresher course on working with employees with disabilities and reasonable accommodations for first and second line supervisors.

  9. USDA's Accountability Policy and Procedures are continually emphasized as an effective method for tracking and removing policies and practices that contribute to findings of discrimination.

  10. The USDA's future priorities include enhancement of its ADR program, including conducting an ADR awareness survey, providing training in ADR for supervisors and employees, and establishing a Departmental cadre of resolving officials.

  11. The OASCR is conducting regular compliance reviews and providing technical assistance to sub-agencies to ensure full compliance with antidiscrimination laws.

  12. USDA continues to work collaboratively with the EEOC through its relationship management arrangement to access training opportunities and expertise in various areas.

 

PART II

USDA Reimbursement to Judgment
Fund for Fiscal Year 2010

 

USDA Reimbursement to Judgment Fund for Fiscal Year 2010

Introduction

Table 8 below provides information on reimbursements by USDA to the Department of Treasury’s Judgment Fund for monies associated with FY 2010 judgments, awards, or settlements under the statutes addressed in the No FEAR Act.

Table 8
USDA Reimbursement to Judgment Fund for FY 2010 Settlements

Case

Total Amount

Attorney's Fees

1

$43,500.00

 

2

45,000.00

 

3

155,000.00

 

4

12,500.00

 

5

25,000.00

 

6

75,000.00

55,000.00

Total

$356,000.00

$55,000.00

 

Summary

In FY 2010, USDA reimbursed the Judgment Fund $356,000.00, of which $55,000.00 was identified as payment of attorney's fees. No monies were paid for judgments or awards.

 

PART III

USDA Disciplinary Actions and
Reports for Fiscal Years 2009 - 2010


 

USDA Disciplinary Actions and Reports for
Fiscal Years 2009 - 2010

 

Summary of Data

PART 1: Table 9a and 9b below contain the number of disciplinary actions taken against employees who were found to have committed prohibited acts of discrimination, retaliation, harassment, or prohibited personnel practices (including those acts discovered in conjunction with investigations of whistleblower protection or civil rights complaints).

Table 9a
Administrative Disciplinary Actions
2009

Type of Action

DISC.

RETAIL

HAR

PPP

WBP

TOTAL

REMOVAL

0

0

2

0

0

2

15 DAY OR MORE

0

0

0

0

0

0

14 DAY OR LESS

3

0

8

0

0

11

REDUCTION IN GRADE

0

0

1

0

0

1

REDUCTION IN PAY

0

0

0

0

0

0

LOR

0

0

2

0

0

2

TOTAL DISCIPLINE

3

0

13

0

0

16

Table Abbreviations: Disc. = Discrimination; Retail. = Retaliation; Har. = Harassment; PPP = Prohibited Personnel Practice; WBP = Whistleblower Protection Act; and LOR = Letter of Reprimand.

Table 9b
Administrative Disciplinary Actions
2010

Type of Action

DISC.

RETAIL

HAR

PPP

WBP

TOTAL

REMOVAL

2

0

3

0

0

5

15 DAY OR MORE

0

0

1

0

0

1

14 DAY OR LESS

0

0

4

0

0

4

REDUCTION IN GRADE

0

0

0

0

0

0

REDUCTION IN PAY

0

0

0

0

0

0

LOR

0

0

3

0

0

3

TOTAL DISCIPLINE

2

0

11

0

0

13

Table Abbreviations: Disc. = Discrimination; Retail. = Retaliation; Har. = Harassment; PPP = Prohibited Personnel Practice; WBP = Whistleblower Protection Act; and LOR = Letter of Reprimand.

PART 2: Table 10 below illustrates the number of Office of Special Counsel Whistleblower cases and the numbers of employees disciplined under the Department's disciplinary policies related to whistle-blowing and discrimination.

Table 10
Office of Special Counsel Cases

CATEGORIES OF CASES

FY 2009

FY 2010

Total

OSC WHISTLEBLOWER CASE

0

5

5

OSC WHISTLEBLOWER CASE CLOSED

0

0

0

OSC WHITLEBLOWER DISCIPLINE TAKEN

0

0

0

Disciplinary Policy

Improving the civil rights environment throughout the Department is a priority for USDA. There is a “Zero Tolerance” policy for acts of discrimination, harassment or reprisal of any kind. It is USDA policy to pursue appropriate administrative action against anyone who is found to have engaged in such activities. USDA continues to apply its accountability policy and employee awareness activities in its effort to prevent illegal discriminatory actions and to discipline those who commit such offenses. The Civil Rights and Human Resources staffs work in close cooperation, using proven tracking and reporting systems, to monitor compliance activities and readily identify emerging trends.

In cases involving discrimination, harassment, or reprisal, subordinate components of USDA effect disciplinary or corrective action in accordance with current laws, rules, regulations, and policies. The Office of Human Resources Management (OHRM) reviews agency disciplinary or corrective actions in cases involving discrimination, harassment, or reprisal. The type and severity of disciplinary action is based on the USDA Guide for Disciplinary Penalties, Appendix A, Department Personnel Manual 751. This guide contains specific sections on discrimination and retaliation, sexual misconduct, and prohibited personnel practices.

In May 2010, USDA implemented an initiative to provide increased oversight of cases involving violation of antidiscrimination and whistleblower protection laws in which there is a finding of liability against the Department. As part of that initiative, OHRM established the Equal Opportunity Accountability Unit (EOAU) with the primary mission of ensuring that USDA personnel are held accountable and responsible for their actions. The EOAU raises awareness and ensures that individuals in decision making positions implement appropriate corrective actions when it is determined that a violation of this nature has occurred. The EOAU is also charged with implementing program improvements to ensure that all USDA services are available in a non-discriminatory manner.

In October 2007, USDA OHRM updated Departmental Regulation (DR) 4070-735-001, Employee Responsibility and Conduct. This DR establishes guidelines and requirements for employees and works in conjunction with government-wide ethics regulations. It specifically prohibits employees from engaging in workplace harassment, sexually inappropriate conduct, retaliation in response to protected activities, creating a hostile work environment, or illegal discrimination. The DR requires that each employee receive a copy to ensure that they are fully aware of the responsibility and conduct standards for the Department.

In January 2006, the Office of Civil Rights and OHRM issued DR-4300-010, Civil Rights Accountability Policy and Procedures. The purpose of this directive is to ensure employees are held accountable for discriminatory or related misconduct and to outline management’s obligation to take appropriate corrective action against those who have engaged in these prohibited acts. This policy also requires that all USDA employees be made aware of its contents.

In addition to Department-wide policies and initiatives, USDA mission areas have taken steps to improve the civil rights environment throughout their respective subordinate agencies. The most recent initiative is the Leadership Accountability Action Plan implemented by the Forest Service in 2010. This policy complements overall Departmental policy of increased accountability. The following is a list of other current policies by agency:


Food, Nutrition & Consumer Services
FNS & CNPP Harassment Prevention Policy 2009-3
FNS & CNPP Civil Rights Policy 2009-2

Food Safety
Directive 4735.3; Employee Responsibilities and Conduct

Forest Service
Forest Service Civil Rights Policy Statement
Forest Service Anti-Harassment Policy

Research, Education & Economics
Policy & Procedure 461.5; Misconduct, Discipline, and Adverse Actions

Rural Development
RD Instruction 2045-GG; Disciplinary and Adverse Actions,
Performance-Based Actions, and Probationary Terminations

PART IV

USDA Federal Court Litigation
Statistics for Fiscal Year 2010

 

Tables 11, 12, and 13 provide composite data for cases in Federal court pending or resolved in FY 2010 and arising under the antidiscrimination and whistleblower protection laws.

Table 11
Federal Cases pending in FY 2010

Pending District Court Cases

70

Pending Appellate Court Cases

12

New Cases Filed in District Court

20

Note: Cases pending at any time during the year, including those filed during the year, and those disposed of during the year.

Table 12
Pending Cases
 

29 U.S.C. 206(d)

29 U.S.C. 631

29 U.S.C. 633a

29 U.S.C. 791

42 U.S.C. 2000e-16

Disposed of during FY 2010

1

0

5

3

22*

Still Pending at end of FY 2010

0

0

8*

8**

49**

*Denotes more than one basis alleged in 4 cases.
**Denotes more than one basis alleged in 6 cases.

Table 13
Disposition of Cases
(Including Dismissals)

29 U.S.C. §206(d)

29 U.S.C. §631

29 U.S.C. §633a

29 U.S.C. §791

42 U.S.C. §2000e-16

Settlements

0

1

3

8*

Withdrawals

0

0

0

0

1

Final Judgment for Complainant

0

0

0

0

0

Final Judgment for Agency

0

0

4

0

13*

*Denotes more than one basis alleged in 4 cases.

 

Appendix

 

Equal Employment Opportunity Data Posted
Pursuant to the No Fear Act

USDA
2010 for period ending September 30, 2010

Complaint Activity
with Comparative Data for Previous Fiscal Years

Complaint Activity

2006

2007

2008

2009

2010

Number of Complaints Filed

530

545

508

528

473

Number of Complainants

483

487

395

394

461

Repeat Filers

38

33

48

21

7

 

Complaints by Basis
with Comparative Data for Previous Fiscal Years

Note: Complaints can be filed alleging multiple bases. The sum of the bases may not equal total complaints filed.

Complaints by Basis

2006

2007

2008

2009

2010

Race

207

185

184

181

166

Color

45

43

36

44

23

Religion

28

21

18

13

16

Reprisal

263

258

267

248

181

Sex

181

176

174

178

159

National Origin

79

41

44

61

49

Equal Pay Act

15

8

0

3

1

Age

174

180

158

168

157

Disability

97

103

107

91

97

Non-EEO

14

14

31

33

44

 

Complaints by Issue
with Comparative Data for Previous Fiscal Years

Note: Complaints can be filed alleging multiple bases. The sum of the bases may not equal total complaints filed.

Complaints by Issue

2006

2007

2008

2009

2010

Appointment/Hire

29

33

28

20

23

Assignment of Duties

58

58

52

80

51

Awards

16

10

24

21

11

Conversion to Full-time

0

0

0

0

1

Disciplinary Action

         

    Demotion

4

4

3

4

5

    Reprimand

14

14

15

25

13

    Suspension

18

20

25

23

26

    Removal

5

9

7

7

6

    Other

6

14

6

11

8

Duty Hours

6

7

9

9

5

Evaluation Appraisal

47

37

62

66

59

Examination/Test

1

2

2

2

1

Harassment

         

    Non-Sexual

202

200

215

237

177

    Sexual

15

20

15

15

13

Medical Examination

0

0

0

0

1

Pay (Including Overtime)

6

5

9

5

10

Promontion/Non-Selection

151

139

124

117

103

Reassignment

         

    Denied

2

6

4

10

5

    Directed

21

35

17

35

20

Reasonable Accommodation

21

40

36

28

32

Reinstatement

0

1

1

1

2

Retirement

11

5

3

6

1

Termination

46

37

11

35

34

Terms/Conditions of Employment

40

42

50

49

38

Time and Attendance

31

40

36

31

22

Training

19

19

38

35

22

Other

88

70

51

57

64

 

Processing Time
with Comparative Data for Previous Fiscal Years
 

2006

2007

2008

2009

2010

Complaints Pending during Fiscal Year

         

    Average number of days
    in investigation

21

293

445

161

314

    Average number of days
    in final action

326

439

881

678

632

Complaints pending during fiscal year where hearing was requested

         

    Average number of days
    in investigation

216

199

445

21

283

    Average number of days
    in final action

45

115

417

178

189

Complaints pending during fiscal year where hearing was not requested

         

    Average number of days
    in investigation

219

214

248

256

332

    Average number of days
    in final action

621

618

417

826

831

 

Complaints Dismissed by Agency
with Comparative Data for Previous Fiscal Years
 

2006

2007

2008

2009

2010

Complaints Dismissed by Agency

         

Total Complaints Dismissed by Agency

81

73

54

39

58

Average Days Pending Prior to Dismissal

683

690

288

248

257

 

Complaints Withdrawn by Complainants
with Comparative Data for Previous Fiscal Years
 

2006

2007

2008

2009

2010

Total Complaints Withdrawn by Complainants

61

29

31

24

33

 

Total Final Agency Actions Finding Discrimination
with Comparative Data for Previous Fiscal Years

Total Final Agency Actions Finding Discrimination

2006

2007

2008

2009

2010

#

%

#

%

#

%

#

%

#

%

Total Number Findings

17

 

8

 

10

 

15

 

27*

 

    Without Hearing

6

35

3

38

4

40

13

87

22

81

    With Hearing

11

65

5

63

6

60

2

13

5

19

 

*Number does not reflect two hearing decisions accounted for in the Farmbill.

Findings of Discrimination Rendered by Basis
with Comparative Data for Previous Fiscal Years

Note: Complaints can be filed alleging multiple bases.The sum of the bases may not equal total complaints and findings.

Findings of Discrimination Rendered by Basis

2006

2007

2008

2009

2010

#

%

#

%

#

%

#

%

#

%

Total Number Findings

15

 

7

 

8

 

15

 

27*

 

    Race

2

13

1

14

0

0

4

27

7

26

    Color

0

0

0

0

0

0

0

0

2

7

   Religion

0

0

0

0

0

0

0

0

0

0

    Reprisal

11

73

3

43

6

75

4

27

12

44

    Sex

4

27

3

43

2

25

6

40

5

19

    National Origin

0

0

2

29

0

0

1

7

1

4

    Equal Pay Act

0

0

0

0

0

0

0

0

0

0

    Age

1

7

0

0

3

38

7

47

9

33

    Disability

0

0

2

29

0

0

2

13

5

19

    Non-EEO

0

0

0

0

0

0

0

0

1

4

Findings After Hearing

9

 

4

 

4

 

2

 

5

 

   Race

2

22

1

25

0

0

1

50

2

40

    Color

0

0

0

0

0

0

0

0

0

0

    Religion

0

0

0

0

0

0

0

0

0

0

    Reprisal

6

67

1

25

2

50

1

50

3

60

    Sex

3

33

2

50

1

25

1

50

2

40

    National Origin

0

0

1

25

0

0

0

0

0

0

    Equal Pay Act

0

0

0

0

0

0

0

0

0

0

   Age

1

11

0

0

3

75

0

0

3

60

    Disability

0

0

0

0

0

0

0

0

1

20

    Non-EEO

0

0

0

0

0

0

0

0

0

0

Findings Without Hearing

4

 

2

 

4

 

8

 

16

 

   Race

0

0

0

0

0

0

3

38

1

6

    Color

0

0

0

0

0

0

0

0

0

0

    Religion

0

0

0

0

0

0

0

0

0

0

    Reprisal

3

75

1

50

4

100

0

0

7

44

    Sex

1

25

1

50

1

25

2

25

2

13

    National Origin

0

0

0

0

0

0

1

13

1

6

    Equal Pay Act

0

0

0

0

0

0

0

0

0

0

   Age

0

0

0

0

0

0

6

75

5

31

    Disability

0

0

2

100

0

0

2

25

3

19

    Non-EEO

0

0

0

0

0

0

0

0

1

6

 

Findings of Discrimination Rendered by Issue
with Comparative Data for Previous Fiscal Years

Findings of Discrimination Rendered by Issue

2006

2007

2008

2009

2010

#

%

#

%

#

%

#

%

#

%

Total Number Findings

15

 

7

 

8

 

15

 

27

 

Appointment/Hire

0

0

0

0

0

0

0

0

0

0

Assignment of Duties

0

0

1

14

2

25

0

0

2

7

Awards

0

0

0

0

2

25

0

0

0

0

Conversion to Full-time

0

0

0

0

0

0

0

0

0

0

Disciplinary Action

                   

    Demotion

0

0

0

0

0

0

0

0

0

0

    Reprimand

0

0

0

0

0

0

0

0

0

0

    Suspension

0

0

2

29

0

0

1

7

1

4

    Removal

0

0

0

0

0

0

0

0

1

4

    Other

1

7

0

0

0

0

0

0

0

0

Duty Hours

0

0

0

0

0

0

0

0

0

0

Evaluation Appraisal

0

0

0

0

3

38

1

7

0

0

Examination/Test

0

0

0

0

0

0

0

0

0

0

Harassment

                   

    Non-Sexual

5

33

2

29

4

50

1

7

12

44

    Sexual

1

7

0

0

1

13

0

0

0

0

Medical Examination

0

0

0

0

0

0

0

0

0

0

Pay (Including Overtime)

1

7

0

0

1

13

1

7

0

0

Promotion/Non-Selection

5

33

3

43

0

0

10

67

4

15

Reassignment

                   

    Denied

1

7

0

0

0

0

0

0

0

0

    Directed

1

7

0

0

2

25

1

7

1

4

Reasonable Accommodation

0

0

1

14

0

0

0

0

3

11

Reinstatement

0

0

0

0

0

0

0

0

0

0

Retirement

1

7

0

0

0

0

0

0

1

4

Termination

0

0

0

0

0

0

1

7

1

4

Terms/Conditions of Employment

1

7

1

14

0

0

1

7

0

0

Time and Attendance

1

7

1

14

0

0

0

0

1

4

Training

0

0

0

0

0

0

0

0

0

0

Other - User Defined

2

13

0

0

1

13

0

0

3

11

Findings After Hearing

9

 

4

 

4

 

2

 

5

 

Appointment/Hire

0

0

0

0

0

0

0

0

0

0

Assignment of Duties

0

0

0

0

1

25

0

0

0

0

Awards

0

0

0

0

1

25

0

0

0

0

Conversion to Full-time

0

0

0

0

0

0

0

0

0

0

Disciplinary Action

                   

    Demotion

0

0

0

0

0

0

0

0

0

0

    Reprimand

0

0

0

0

0

0

0

0

0

0

    Suspension

0

0

1

25

0

0

0

0

0

0

    Removal

0

0

0

0

0

0

0

0

0

0

    Other

1

11

0

0

0

0

0

0

0

0

Duty Hours

0

0

0

0

0

0

0

0

0

0

Evaluation Appraisal

0

0

0

0

1

25

0

0

0

0

Examination/Test

0

0

0

0

0

0

0

0

0

0

    Non-Sexual

2

22

2

50

3

75

0

0

2

40

    Sexual

0

0

0

0

0

0

0

0

0

0

Medical Examination

0

0

0

0

0

0

0

0

0

0

Pay (Including Overtime)

1

11

0

0

1

25

0

0

0

0

Promotion/Non-Selection

5

56

2

50

0

0

1

50

2

40

Reassignment

                   

    Denied

1

11

0

0

0

0

0

0

0

0

    Directed

0

0

0

0

1

25

1

50

0

0

Reasonable Accommodation

0

0

0

0

0

0

0

0

0

0

Reinstatement

0

0

0

0

0

0

0

0

0

0

Retirement

1

11

0

0

0

0

0

0

1

20

Termination

0

0

0

0

0

0

0

0

0

0

Terms/Conditions of Employment

0

0

0

0

0

0

0

0

0

0

Time and Attendance

1

11

0

0

0

0

0

0

0

0

Training

0

0

0

0

0

0

0

0

0

0

Other - User Defined

0

0

0

0

1

25

0

0

0

0

Findings Without Hearing

6

 

3

 

4

 

13

 

22

 

Appointment/Hire

0

0

0

0

0

0

0

0

0

0

Assignment of Duties

0

0

1

33

1

25

0

0

2

9

Awards

0

0

0

0

1

25

0

0

0

0

Conversion to Full-time

0

0

0

0

0

0

0

0

0

0

Disciplinary Action

                   

    Demotion

0

0

0

0

0

0

0

0

0

0

    Reprimand

0

0

0

0

0

0

0

0

0

0

    Suspension

0

0

1

33

0

0

1

8

1

5

    Removal

0

0

0

0

0

0

0

0

1

5

    Other

0

0

0

0

0

0

0

0

0

0

Duty Hours

0

0

0

0

0

0

0

0

0

0

Evaluation Appraisal

0

0

0

0

2

50

1

8

0

0

Examination/Test

0

0

0

0

0

0

0

0

0

0

    Non-Sexual

3

50

0

0

1

25

1

8

10

45

    Sexual

1

17

0

0

1

25

0

0

0

0

Medical Examination

0

0

0

0

0

0

0

0

0

0

Pay (Including Overtime)

0

0

0

0

0

0

1

8

0

0

Promotion/Non-Selection

0

0

1

33

0

0

9

69

2

9

Reassignment

                   

    Denied

0

0

0

0

0

0

0

0

0

0

    Directed

1

17

0

0

1

25

0

0

1

5

Reasonable Accommodation

0

0

1

33

0

0

0

0

3

14

Reinstatement

0

0

0

0

0

0

0

0

0

0

Retirement

0

0

0

0

0

0

0

0

0

0

Termination

0

0

0

0

0

0

1

8

1

5

Terms/Conditions of Employment

1

17

1

33

0

0

1

8

0

0

Time and Attendance

0

0

1

33

0

0

0

0

1

5

Training

0

0

0

0

0

0

0

0

0

0

Other - User Defined

2

33

0

0

0

0

0

0

3

14

 

Pending Complaints Filed in Previous Fiscal Years by Status
with Comparative Data for Previous Fiscal Years
 

2006

2007

2008

2009

2010

Pending Complaints Filed in Previous Fiscal Years by Status

         

Total Complaints from previous Fiscal Years

1443

1384

1333

1210

939

Total Complainants

1081

1078

1063

932

696

Number complaints pending

         

    Investigation

67

75

102

89

82

    ROI issued, pending
    Complainant's action

2

8

6

1

8

    Hearing

287

303

350

300

238

    Final Agency Action

534

469

360

109

81

    Appeal with EEOC Office of
    Federal Operations

13

20

23

24

25

 

Complaint Investigations
with Comparative Data for Previous Fiscal Years
 

2006

2007

2008

2009

2010

Pending Complaints Where Investigations Exceed Required Time Frames

92

113

163

171

176