Department of Interior OIG Finds Office of Diversity, Inclusion and Civil Rights Lowered Discrimination Legal Standard and Inflated Timeliness Statistics for Final Agency Decisions
On September 26, 2023, the Office of Inspector General for the Department of the Interior released a report titled “The Office of Diversity, Inclusion and Civil Rights Applied an Incorrect Legal Standard and Backdated Final Agency Decisions.” The report explained that the OIG investigated allegations that a former Director of the Office of Diversity, Inclusion and Civil Rights (ODICR) issued final agency decisions (FADs) containing unsupportable findings of discrimination and that the Director, Acting Director, Former Director, and Division Director backdated or ordered employees to backdate FADs to avoid reporting the untimely issuance of FADs to the Equal Employment Opportunity Commission (EEOC).
The ODCIR at DOI processes EEO complaints filed by DOI employees. The discrimination claims are investigated by an impartial DOI employee, who files a report summarizing the findings of an investigation. After the conclusion of the investigation, a complainant has the option to request either a hearing with an EEOC administrative judge or a FAD issued by ODICR. If the complainant chooses a FAD, by EEOC regulation, ODICR must issue a FAD within 60 days or the FAD is considered untimely. ODICR is responsible for issuing FADs that are consistent with EEOC regulations and contain a decision regarding whether discrimination has occurred. According to the report, “in order to make a finding that discrimination has occurred, the EEO specialist must determine whether the complainant has demonstrated by a preponderance of the evidence that the alleged discrimination occurred.” The preponderance of the evidence standard requires that the complainant’s evidence shows that it was “more likely than not” that the alleged discrimination occurred.
The OIG report found that, at the direction of the Director, ODICR staff used an incorrect legal standard between 2019 and 2021 when considering discrimination complaints against DOI. Rather than the preponderance of the evidence standard, the Director used, or instructed her staff to use, a lower standard of proof. The Director’s standard of proof required only that the evidence set forth by the complainant be viewed “in the light most favorable to the complainant” and that “all justifiable inferences” be drawn in the complainant’s favor when deciding whether discrimination had occurred. As a result of this lower standard of proof, the report found that “ODICR issued FADs that found that the DOI had engaged in unlawful discrimination in cases where such a finding may not have been made had ODICR applied the correct legal standard.”
DOI took immediate action to begin using the correct legal standard.
The OIG also found evidence that, between 2018 and 2021, the Acting Director, Division Director, Program Director, and Director “backdated” FADs by using a signature date that preceded the date the FAD was issued. EEOC regulations require an agency to issue FADs “within 60 days of receiving notification that a complainant has requested [a FAD],” “or—if the complainant does not request a hearing or a FAD—within 60 days of the end of the 30-day election period.” A FAD that is not issued by the 60-day deadline is considered untimely under governing law.
The report stated that, between June 2018 and March 2019, the Acting Director signed multiple FADs with a signature date 1 to 15 days earlier than the actual issuance date. For example, in one instance, the Acting Director signed and dated a FAD on August 13, 2018, the regulatory deadline, even though the FAD was not issued until August 28, 2018. Additionally, ODICR recorded the FAD as timely in a spreadsheet tracking fiscal year 2018 FADs. These practices resulted in inflated and incorrect reporting of the timeliness of the Office’s FADs.
The OIG offered six recommendations to DOI, including identifying which FADs used an incorrect legal standard and whether any of these FADs resulted in improper disciplinary actions, personnel actions, or remedies awarded and to take corrective actions as appropriate. It also recommended a review of DOI’s EEOC Statistical Reports of Discrimination Complaints to ensure the accuracy of information submitted, and to develop and implement appropriate policies, procedures, and trainings to apply the correct legal standard and issue FADs in accordance with EEOC regulatory deadlines.
Find the full report here: The Office of Diversity, Inclusion and Civil Rights Applied an Incorrect Legal Standard and Backdated Final Agency Decisions, Report of Investigation OI-SI-21-0909-I.
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