Is OFO Trying to Cut Through its Backlog with Shorter Decisions?

By Deryn Sumner, July 19, 2017

Our colleague and friend Ernie Hadley has preached for years that the EEOC’s Office of Federal Operations could get more decisions out in a timely manner if it stopped issuing multipage decisions that ultimately concluded with: we agree with the Agency that there’s no evidence of discrimination in this case. As someone who at least skims every one of the thousands of decisions issued by the Commission every year, I agree wholeheartedly with Ernie.

There are three main categories of Commission decisions: (1) cases where discrimination was actually found, and there’s a useful discussion of the facts as applied to the law and an analysis that assists us in our mission to figure out what constitutes evidence of discrimination and what remedies are available when it occurs; (2) cases where the agency messed up in dismissing a formal complaint that shouldn’t have been dismissed, and the Commission has to reinstate the case and remand it back to the agency for processing, and (3) cases where the EEOC is affirming a FAD or final action from the agency that no discrimination occurred.  (And of course, let’s not forget the hundreds of decisions every year denying requests for reconsideration filed by either side in an attempt to delay the inevitable.)

The vast majority of decisions issued by the EEOC fall into that third category.  Why?  Well, employment law is no different than any other area of civil litigation in that most cases settle, especially before getting to the appellate stage.  And yes, some employees who aren’t able to show that discrimination occurred file complaints.  At least as a parting gift, these employees received a five to seven page decision recapping the procedural history and facts of their cases, the appropriate legal standard, and a brief analysis of why they couldn’t prove their case.  Beneficial, perhaps, for the employee to understand what the Commission’s reasoning was, but a lot to slog through for the rest of us.

So imagine my surprise when I checked in on the latest OFO decisions to be published on Lexis, only to find a string of cases issued on June 16 (the latest date available as of my deadline to turn in my articles for the July edition of the FELTG newsletter) succinctly affirming final actions.

These decisions still identify the accepted issues, the procedural history, and the applicable legal standards.  Each of these take about a paragraph each.  But then, instead of a lengthy recitation of the facts or extensive discussion of why the administrative judge was correct in issuing summary judgment or in finding no discrimination after a hearing, the Commission simply states this:

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.

The decisions are about three or four pages shorter than we’re used to seeing.  I have no reason to think that the OFO attorneys who write these decisions are spending any less time considering the arguments on appeal and properly determining whether the case was appropriate for summary judgment.  I do hope that these summary decisions allow the Commission to focus more resources on the cases where there is evidence of discrimination.  I have the list of my cases for potential candidates, should anyone at the Commission be interested.   Oh, and if you’d like to see examples of these shorter decisions, see, e.g. Rosemarie G. v. FDIC, Appeal No. 0120151691 (June 16, 2017); Reginald B. v. Dept. of Commerce, Appeal No. 0120170496 (June 16, 2017); Monroe M. v. Dept. of Veterans Affairs, Appeal No. 0120151174 (June 16, 2017).  Sumner@FELTG.com  [Editor’s Note: Hopefully, once MSPB gets operating again, the new members will conspire to do something like this with those overly-long non-precedential decisions some bright mind over there came up with several years ago. Maybe even adopt FLRA’s style of putting all the citations to case law into footnotes where they don’t distract from reading the rationale. There’s just so much room to make our business better and America great again.]