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Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002

Fiscal Year 2012 No FEAR Act Annual Report to Congress

U.S. Department of Health and Human Services
Office of the Secretary

March 8, 2013

 

Table of Contents

 

Forward

The mission of the U.S. Department of Health and Human Services (HHS) is to enhance the health and well-being of Americans by providing for effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health and social services. HHS accomplishes its mission through several hundred programs and initiatives that cover a wide spectrum of activities, serving the American public at every stage of life.

HHS conducts periodic self-assessments of its Equal Employment Opportunity (EEO) programs against six essential elements identified as standards for a model EEO program by the Equal Employment Opportunity Commission (EEOC).  Seven EEO offices provide an array of services, including programs to proactively prevent unlawful discrimination, to the following Operating Divisions (OPDIVs) nationwide: 

  • Administration for Children and Families (ACF)
  • Administration on Community Living (ACL)
  • Agency for Healthcare Research and Quality (AHRQ)
  • Centers for Disease Control & Agency for Toxic Substances and Disease Registry (CDC\ATSDR)
  • Centers for Medicare and Medicaid Services (CMS)
  • Food and Drug Administration (FDA)
  • Health Resources and Services Administration (HRSA)
  • Indian Health Service (IHS)
  • National Institutes of Health (NIH)
  • Office of the Secretary (OS)
  • Substance Abuse and Mental Health Services Administration (SAMHSA)

To maximize our effectiveness, HHS seeks to achieve exemplary EEO programs and lead as a model agency by eliminating the practice or toleration of discrimination, retaliation, or bias conduct within the workplace.

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 EEO complaints on its public website, reimburse the Treasury Judgment Fund (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 Federal court cases arising under the respective areas of law cited in the No FEAR Act where discrimination was alleged; the status or disposition of cases; the amount required to be reimbursed to the Judgment Fund for attorney's fees where such fees have been separately designated;
  • The number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to under the Act, and specific nature of disciplinary action taken, separated by provisions of law;
  • The final year-end data about discrimination complaints for the fiscal year;
  • A detailed description of agency policy relating to appropriate disciplinary actions;
  • An analysis of trends, causation, and practical knowledge gained through experience;
  • Actions planned or taken to improve complaint or civil rights programs; and
  • Any adjustments to the budget.

Pursuant to Congressional requirements, this Report is being provided to the following Members of Congress:

  • Vice President Joseph Biden

  • The Honorable Harry Reid
    Majority Leader, U.S. Senate

  • The Honorable Mitch McConnell
    Senate Minority Leader

  • The Honorable Tom Harkin
    Chairman, U.S. Senate Committee on Health, Education, Labor and Pensions

  • The Honorable Lamar Alexander
    Ranking Member, U.S. Senate Committee on Health, Education, Labor and Pensions

  • The Honorable Max Baucus
    Chairman, U.S. Senate Committee on Finance

  • The Honorable Lamar Alexander
    Ranking Member, U.S. Senate Committee on Finance

  • The Honorable John Boehner
    Speaker of the House, U.S. House of Representatives

  • The Honorable Nancy Pelosi
    Minority Leader, U.S. House of Representatives

  • The Honorable Fred Upton
    Chairman, U.S. House of Representatives Committee on Energy and Commerce

  • The Honorable Harry Waxman
    Ranking Member, U.S. House of Representatives Committee on Energy and Commerce

  • The Honorable Dave Camp
    Chairman, U.S. House of Representatives Committee on Ways and Means

Pursuant to statutory requirements, HHS also provides this report to the following members of the Executive Branch:

  • The Honorable Jacqueline A. Berrien
    Chair, U.S. Equal Employment Opportunity Commission

  • The Honorable Eric H. Holder, Jr.
    Attorney General, U.S. Department of Justice

  • The Honorable Elaine Kaplan
    Acting Director, U.S. Office of Personnel Management

The achievements during FY 2012 have paved the way for continued measureable and valuable improvements in HHS' EEO and Diversity programs during FY 2012 and beyond.  I look forward to continuing to provide information on the success of these programs in future reports.

 

Wilfredo Sauri
Director, Diversity and Inclusion Division
U.S. Department of Health and Human Services
HHS-OS-ASA-OHR
200 Independence Avenue, S.W.
Room 308E
Washington, D.C. 20201

 

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Executive Summary

The No FEAR Act aims to reduce the incidents of workplace discrimination within the federal government by holding agencies and departments accountable for their actions.  Section 203 of the No FEAR Act and the Office of Personnel Management (OPM) regulations implementing Title II of the No FEAR Act requires each Federal agency to prepare and submit an annual report.  This report covers information for Fiscal Year (FY) 2012.

In FY 2012, HHS reported 19 Federal court cases pending and 8 new Federal cases filed. During FY 2012, 11 cases were resolved under the various laws covered in the No FEAR Act and 16 cases were still pending at the end of FY 2012.  Among the 11 cases resolved, 3 cases were settled and 8 were dismissed on summary judgment in favor of the Department. 

In FY 2012, HHS reimbursed the Judgment Fund $765,000 for 3 Federal Court cases. In 2 cases, there was a total of $528,000 in separately designated attorneys' fees.  In the third case, there were no attorney's fees.  HHS did not discipline any employee involved in the FY 2012 Federal Court cases.

During FY 2012, HHS received 409 formal EEO complaints.  This represents a decline of 19 complaints from FY 2011 in which HHS received 428 complaints and an overall decrease of more than 4 percent.  The top three allegations by bases, in descending frequency, were reprisal, race, and sex.  The top allegation by issue was harassment (non-sexual), while the issues of discipline and assignment of duties were tied for second place.

The average number of days spent in the investigation stage was 152.  Since 2007, HHS reduced the time that complaints were pending in the investigation stage by almost 26 percent.

The HHS FY 2012 No FEAR Report was prepared by the Office of Human Resources, Strategic Programs, Division of Diversity and Inclusion.

 

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Data Report

This report is prepared in accordance with Section 203(a)(1) of the No FEAR Act, which requires Federal agencies to include in their Annual Report to Congress "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."  The OPM's final regulations at 5 C.F.R. § 724.302 on reporting and best practices issued on December 28, 2006, clarify section 203(a)(1) of the No FEAR Act stating that Federal agencies report on "The number of cases in Federal court [district or appellate] pending or resolved... arising under each of the respective provisions of the Federal Antidiscrimination laws and Whistleblower Protection Laws applicable to them... in which an employee, former Federal employee, or applicant alleged a violation(s) of these laws, separating data by the provision(s) of law involved."

Civil Cases

During FY 2012, HHS reported 27 Federal court cases ensuing from antidiscrimination statutes listed in the No FEAR Act.  Among the 11 resolved cases, 3 were settled in favor of the complainant and 8 were dismissed through summary judgment in favor of the Department.

Reimbursement to the Judgment Fund

Among the 11 Federal court cases resolved, 3 resulted in reimbursements to the Judgment Fund in FY 2012 for $765,000.  Included in this total reimbursement were 2 cases which totaled $528,000 in attorneys' fees.  There were no attorney's fees in the third case.  Among the 3 Federal court cases resolved, HHS reimbursed the Judgment Fund $310,000 for a Title VII/Rehabilitation Act case and $455,000 for a Title VII/Whistleblower case.

Disciplinary Actions

Section 203(a)(4) of the No FEAR Act requires that agencies include in the annual Report to Congress "The number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1). " For Federal court cases involving allegations of a violation of antidiscrimination or whistleblower-protection laws, the regulations at 5 C.F.R. § 724.302 (a)(3) require the agency to report the total number of employees disciplined.  The regulations at 5 C.F.R. § 724.102 define discipline to include anyone, or a combination of, the following actions: reprimand, suspension without pay, reduction in grade or pay, or removal. 

HHS did not discipline any employees involved in FY 2012 Federal court cases.  Additionally, the Department did not discipline any employee for violating HHS policies for discrimination, retaliation, harassment, and/or other infractions of the Antidiscrimination and Whistleblower Protection laws included in the No FEAR Act, whether or not in connection with a Federal case. Further, HHS did not issue any letters of reprimand and did not remove or suspend any employees from Federal service (see Appendix 1).

EEO Complaint Data

HHS' No FEAR Act web-posted data for year-end FY 2012, pursuant to Section 301 (c)(1)(B) of the No FEAR Act, is included in Appendix 2. The analysis of trends below is made from Appendix 2, except for the analysis of Federal court cases and reimbursement to the Judgment Fund which is made from Appendix 1.

 

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Federal Court Cases
During FY 2012, the Department prevailed in 8 of the 11, or 73 percent, of the cases resolved in Federal court.  Notably, the 8 cases won in favor of the Department were dismissals through summary judgment, upon motion to dismiss.  

Number of Complaints Filed
During FY 2012,HHS received 409 formal EEO administrative complaints. This represents a decline of 19 complaints from FY 2011 in which HHS received 428 complaints.  This represents an overall decrease of more than 4 percent accordingly.

Number of Individuals Filing Those Complaints
During FY 2012, there were 399 complainants while in FY 2011 there were 410 complainants.  This represents a 2.7 percent decrease in the number of complainants.

The Number of Individuals Who Filed Two or More Complaints
During FY 2012, 10 individuals filed 2 or more complaints whereas in FY 2011 16 individuals filed 2 or more complaints. This represents a 37 percent decrease in repeat filers. More importantly, during FYs 2007 through 2012, FY 2012 had the least amount of repeat filers. Further, during this 6-year period, the number of repeat filers reached a high in FY 2008 with 28 repeat filers. Since FY 2008, the number of repeat filers has steadily decreased to its lowest point of just 10--a significant decrease of over 64 percent.   

Complaints Filed by Bases 
The most frequent bases during the 3-year period from FYs 2010 through 2012 have been reprisal, followed by race, followed by sex.  

Complaints Filed by Issue 
In both FYs 2010 and 2011, the most frequent issues were harassment (non-sexual), followed by discipline, followed by assignment of duties.  In FY 2012, the most frequent issue was harassment (non-sexual) while the issues of discipline and assignment of duties were both second to harassment.

Average Time to Process Complaints
HHS consistently improved its average processing time for complaints in the investigation stage during the 6-year period from FYs 2007 through 2012.  The average number of days spent in the investigation stage was 152, compared to 159 in 2011, 169 in 2010, 184 in 2009, 194 in 2008, and 205 in 2007.  Since 2007, HHS reduced the time that complaints were pending in the investigation stage by almost 26 percent. 

Average Time to Process Complaints Where a Hearing Was Requested 
HHS consistently improved its average processing time for complaints in the investigation stage during the 6-year period from FYs 2007 through 2012, where a hearing was requested.  In FY 2007, the average processing time for an investigation was 202 days whereas in FY 2012 the average processing time for an investigation was 160 days.  This represents a 21 percent decrease in the average processing time for an investigation when a hearing is requested.    

Average Time to Process Complaints Where a Hearing Was Not Requested 
HHS consistently improved its average processing time for complaints in the investigation stage during the 6-year period from FYs 2007 through 2012, where a hearing was not requested.  In FY 2007, the average processing time for an investigation was 211 days whereas in FY 2012 the average processing time for an investigation was 135 days.  This represents a 36 percent decrease in the average processing time for an investigation when a hearing was not requested.    

Total Number of Complaints Pending in Excess of 180 Days
In FY 2007, HHS had 41 pending complaints where investigations exceeded the required timeframes.  By FY 2010, HHS cut that number down to 14, yielding a 65 percent increase in meeting the EEOC regulatory requirements for conducting investigations timely.  In FY 2012, the number of pending complaints where investigations exceeded the required timeframes was 23 which is a 44 percent increase, during the 6-year period, in meeting the EEOC regulatory requirements for conducting investigations timely.

 

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No FEAR Training

Section 202(c) of the No FEAR Act requires Federal agencies to provide training for their employees on the rights and remedies under Federal antidiscrimination, retaliation, and whistleblower protection laws. Under 5 C.F.R. § 724.203, Federal agencies were required to develop a written training plan and to have trained their employees by December 17, 2006, and every 2 years thereafter. Under implementing regulations, new employees are to receive No FEAR training within 90 days of appointment through either an agency's orientation program or some other No FEAR training program. Based on HHS' records through September 30, 2012, exactly 23,494 employees received training on the rights and remedies under Federal antidiscrimination, retaliation, and whistleblower protection laws.  The Department continues to place strong emphasis on No FEAR Act training and will report the results in the 2013 No FEAR annual report.  

 

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Description of Policy on Disciplinary Actions

Section 203 (a)(6) of the No FEAR Act requires that Federal agencies include in their Annual Report to Congress, a detailed description of the policy implemented by the agency relating to disciplinary actions imposed against a Federal employee who discriminates against any individual in violation of any of the laws cited under section 201(a)(1) or (2), or commited another prohibited personnel practice that was revealed in the investigation of a complaint claiming a violation of any of the laws cited under section 201(a)(1) or (2).

On April 28, 2009, the U.S. Senate confirmed Kathleen Sebelius as HHS' new Secretary.  On September 17, 2009, Secretary Sebelius issued her first EEO policy statement, revised EEO policy statements on March 14, 2011, and released updated EEO policies on November 9, 2012.  These policies were issued to: (1) cover all forms of harassment; (2) require immediate and appropriate corrective action; (3) provide points of contact for reporting and filing a complaint; (4) define necessary legal terms; (5) require training for the workforce; and (6) protect employees from retaliation. These statements have been posted on employee bulletin boards and on HHS' intranet and its public websites.  Other HHS policies require all employees to cooperate in EEO investigations. These policies also require the agency to take appropriate disciplinary action against those engaging in unlawful discriminatory practices or allowing discriminatory practices to exist (see Appendix 3).

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Practical Knowledge Gained Through Experience and Actions Planned or Taken to Improve Compliant or Civil Rights Programs

To maximize its effectiveness, HHS seeks to have exemplary EEO and Diversity programs. The EEO Office and the Division of Diversity and Inclusion reside within the Office of the Secretary to provide technical and policy advice to Department leadership on civil rights and civil liberties issues.  Both the EEO Office and the Division of Diversity and Inclusion assist Department leadership in shaping policy in ways that protect the personal liberties of all employees. These organizations work inter-dependently to develop policies and plans, generate reports, conduct annual multi-year studies, forecast trends, assess demographics against various arbiters, deliver training and briefings, conduct oversight, adjudicate EEO complaints, integrate civil rights and civil liberties into Department initiatives and activities, and submit annual reports to internal and external stakeholders.

HHS EEO leadership ensures collaboration with EEO offices of the OPDIVs, nationwide, to help increase employees' awareness of their responsibilities in EEO program activities and diversity management.  In FY 2012, HHS conducted EEO Compliance Reviews and participated in outreach events in addition to reviewing civil-rights records, public notifications, and plans of work for meeting affirmative employment goals, objectives, and initiatives.  HHS continues to obtain critical information, through its annual Employee Viewpoint Survey, to assess the state of EEO and Diversity management throughout the Department.

Since FY 2006, HHS has successfully established and deployed a complaint tracking system (icomplaints) to monitor all incoming inquiries. This is a web-based application for processing, managing, and reporting on complaint cases.  The automated system allows HHS to track complaint status to ensure responsiveness and legal compliance.  The system also allows HHS EEO practitioners to retrieve data and generate reports, including No FEAR Act data and the EEOC 462 Report.

HHS conducted a "State of HHS' EEO Program for FYs 2009 through 2012". The study examined EEO performance in several ways: (1) reviewed HHS EEO data over 4 fiscal years (FYs 2009 through 2012) then compared and contrasted this data with Government-wide data;

(2) compared its EEO performance against 3 other Federal Departments of comparable workforce size (Departments of State, Interior, and Transportation); and (3) ranked itself in key EEO performance elements against 16 other Departments.

Based on the findings, the Department identified and prioritized programmatic and policy adjustments to better create and sustain a workplace free of discrimination, harassment, and bias conduct.

Annually, the Department conducts and promulgates to the Operating Divisions a rolling multi-year EEO statistical analysis entitled "State of the Agency Report".  The purpose of this analysis is to reinforce model EEO efforts and to indicate where barriers might exist so that the necessary adjustments may be made.

The Department remains committed to abide by merit systems' principles, provide protection from prohibited personnel practices, and promote accountability in Diversity initiatives. Since FY 2008, the number of repeat filers has steadily decreased to its lowest point of just 10 in FY 2012--a significant decrease of over 64 percent. Since 2007, HHS reduced the time that complaints were pending in the investigation stage by almost 26 percent.  Additionally, HHS steadily increased its number of resolved complaints by 37 percent from FY 2009 to FY 2012.  Notably, in FY 2012, HHS resolved more complaints than were filed and on average from FY 2009 to FY 2012 HHS resolved almost as many complaints as were filed over this 4-year period.

HHS will continue to develop and implement improvements in the recruitment, hiring, retention, and development of under-represented classes of people in the workforce such as veterans and people with disabilities.  For example, as part of one of its various annual commemorative events to celebrate equality and diversity, the Department hosted a Disability Commemorative Event to heighten awareness about disability employment issues and to reinforce the understanding, use, and accessibility of electronic information to people with disabilities, in accordance with Section 508 Compliance best-practices and statutory rules.  As another example, the Department conducted and participated in several career fairs during FY 2012, including one to meet with skilled veterans and veterans with disabilities interested in recruitment information and in working for HHS. Additionally, HHS is continuing its ongoing and critical work to educate and support its employees on the legal and operational issues regarding the President's Domestic Partnership initiative and the benefits available for domestic partners. 

The Department has a cornerstone responsibility for promoting the welfare and well-being of all Americans.  The deference and dignity with which HHS treats its employees are critical to the successful completion of the mission. To foster continuous improvement, HHS fully engages the talents and competencies of every employee, from all backgrounds and at all organizational levels. The Department strenuously affirms its ongoing commitment to a workplace free of discrimination, harassment, and biased conduct of any kind. The Department's commitment to diversity and equality is longstanding and non-negotiable.  Quite simply, diversity and inclusion are pre-requisites to excellence, and the goals and objectives spelled out in the Department's FY 2011 through 2015 Workforce Diversity and Inclusion Strategic Plans remain a high and visible priority.

 

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Adjustment to the Budget

Section 203 (a)(8) of the No FEAR Act requires that agencies include "any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201" in their annual report to Congress information.  Section 201 requires Federal agencies to pay awards for discrimination and retaliation violations out of their own budgets.  They are required to reimburse the General Fund of the Treasury within a reasonable time of any such award.  The Department made no such adjustments to its budget for FY 2012, or beyond, in this regard.

 

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Conclusions

HHS continues to strive for exemplary EEO and Diversity programs. The Department's meaningful and significant successes and improvements exemplified in this report are due to both the No FEAR Act and to the Secretary's strong and clear policy statements against workplace discrimination, harassment, whistleblower rights, and the No FEAR Act training.  Nonetheless, there are still opportunities for improvement and the Department will continue to capture and report on as part of its commitment to abide by and support merit systems' principles, to provide protection from prohibited personnel practices, promote accountability, and preserve individual liberty, fairness, and equality for all employees under the law.

 

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Content created by Assist. Sec./Administration
Content last reviewed on May 15, 2014