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Wilburn testifies for Office of Human Rights


GOVERNMENT OF THE DISTRICT OF COLUMBIA

TESTIMONY OF NADINE CHANDLER WILBURN
INTERIM DIRECTOR

PERFORMANCE OVERSIGHT HEARING FOR THE OFFICE OF HUMAN RIGHTS

MARCH 8, 2003


GOOD MORNING CHAIRMAN GRAHAM, MEMBERS OF THE COUNCIL, AND CITIZENS OF THE DISTRICT OF COLUMBIA. MY NAME IS NADINE WILBURN. I AM THE INTERIM DIRECTOR OF THE OFFICE OF HUMAN RIGHTS AND IT IS A PLEASURE FOR ME TO GIVE TESTIMONY BEFORE YOU TODAY ON THE OFFICE OF HUMAN RIGHTS' PERFORMANCE IN FISCAL YEAR 2002 AND GOALS FOR FISCAL YEAR 2003.

A GOOD PLACE TO START ON THE OHR'S PERFORMANCE IS WITH THE OHR'S PERFORMANCE ACCOUNTABILITY REPORT FOR FISCAL YEAR 2002. THE OHR RECEIVED AN OVERALL RATING OF EXCEEDED EXPECTATIONS IN CONNECTION WITH ITS FY 2002 GOALS. SPECIFICALLY, THE OHR HAD FOUR PERFORMANCE GOALS DURING FISCAL YEAR 2002. THOSE GOALS WERE AS FOLLOWS. THE OHR'S FIRST GOAL WAS TO DELIVER A COMPREHENSIVE, CITY-WIDE FAIR HOUSING SYMPOSIUM TO ADDRESS ILLEGAL DISCRIMINATION IN HOUSING IN THE DISTRICT WHICH WOULD ACCOMMODATE AT LEAST 150 ATTENDEES. THE OHR MET THIS GOAL IN APRIL 2002 BY CONDUCTING A FAIR HOUSING SYMPOSIUM FOR 150 ATTENDEES. THE OHR'S SECOND GOAL WAS TO DEVELOP INTRA-DISTRICT TRAINING CURRICULUM AND PROVIDE TRAINING TO AT LEAST 20 DC AGENCY EEO OFFICERS TO BETTER PREVENT DISCRIMINATION IN THE D.C. GOVERNMENT WORKPLACE. THE OHR MET AND EXCEEDED THIS GOAL IN APRIL 2002, BY CONDUCTING TRAINING FOR 38 DISTRICT EQUAL EMPLOYMENT OPPORTUNITY OFFICERS AND COUNSELORS. THE OHR'S THIRD GOAL WAS TO PROVIDE SPEEDIER SERVICE TO THE PUBLIC BY ISSUING FORMAL DISCRIMINATION COMPLAINTS WITHIN ONE WEEK OR LESS IN 25% OF ALL NEW CASES. THE OHR MET AND EXCEEDED THIS GOAL IN FISCAL YEAR 2002 BECAUSE IT ISSUED FORMAL DISCRIMINATION COMPLAINTS WITHIN ONE WEEK IN 64% OF NEWLY-FILED CASES. THE OHR'S FOURTH GOAL WAS TO REDUCE THE NUMBER OF BACKLOGGED CASES IN OHR'S PENDING CASE INVENTORY TO 400 AT THE CLOSE OF FY 2002. THE OHR MET AND EXCEEDED THIS GOAL BY REDUCING THE BACKLOG TO 383 CASES. LASTLY, THE OHR'S FIFTH GOAL WAS TO MAINTAIN AT LEAST 80 TRAINED VOLUNTEER MEDIATORS ON THE OHR'S MEDIATION PANEL. THE OHR MET THIS GOAL IN SEPTEMBER 2002, AFTER IT CONDUCTED TRAINING FOR AN ADDITIONAL 15 MEDIATORS.

WHILE THE OHR EXCEEDED EXPECTATIONS FOR FY 2002, IT STILL RECOGNIZES THAT MUCH WORK IS NEEDED TO CONTINUE TO REDUCE BOTH ITS CASE BACKLOG AND PENDING CASE INVENTORY. TO GET THE FULL PICTURE OF THE OHR'S BACKLOG AND HOW FAR THE OHR HAS COME, IT IS HELPFUL TO REVIEW THE OHR'S BACKLOG AND PENDING INVENTORY FOR THE LAST FIVE YEARS. THOSE NUMBERS ARE AS FOLLOWS:

End Of Fiscal Year Pending Inventory Backlog Percentage Of Inventory Considered Backlog New Docketed Cases Closed Cases Percentage Of Docketed Cases Closed
FY 1998 702 546 78% 287 277 96.5 %
FY 1999 659 485 74% 289 343 119 %

FY 2000

581 494 85% 226 302 133 %
FY 2001 567 450 80% 185 232 175 %
FY 2002 540 383 71% 322 290 90 %
FY 2003
10/01/2002 to 03/07/03
444 380 86% 233 158 54%

AS YOU MAY KNOW, THE OHR DEFINES ITS BACKLOG AS CASES THAT HAVE BEEN IN THE OFFICE FOR MORE THAN 180 DAYS WITHOUT A DECISION MADE ON THOSE CASES. SO, CASES IN WHICH A LETTER OF DETERIMINATION WAS ISSUED BUT A COMPLAINANT SUBSEQUENTLY REQUESTED RECONSIDERATION IS NOT INCLUDED IN THE BACKLOG BUT ARE INCLUDED IN OHR'S PENDING INVENTORY. IN ADDITION, CASES WHICH HAVE BEEN CERTIFIED TO THE COMMISSION ARE NOT INCLUDED IN THE BACKLOG BUT ARE INCLUDED IN OHR'S PENDING INVENTORY.

TO PLACE THE OHR'S NUMBERS INTO CONTEXT, AND IN TURN UNDERSTAND THE REASON FOR THE BACKLOG, IT IS IMPORTANT TO LOOK AT THE SIZE OF THE OHR'S STAFF. IN FY 2000 FOR EXAMPLE, THE OHR'S STAFF WAS A TOTAL OF TWELVE EMPLOYEES. SEVEN OF THOSE TWELVE EMPLOYEES WERE INVESTIGATORS. THE OHR'S STAFF GREW TO 20 IN FISCAL YEAR 2002. FOUR OF THE 20 EMPLOYEES WERE INVESTIGATORS. HOWEVER, THE OHR LOST AN INVESTIGATOR AT THE BEGINNING OF JULY 2002, TO ANOTHER AGENCY, LEAVING ONLY THREE.

WHEN INVESTIGATING DISCRIMINATION COMPLAINTS, BECAUSE OF THE NUMBER OF DOCUMENTS THAT MAY NEED TO BE REVIEWED AND THE NUMBER OF WITNESSES THAT MAY NEED TO BE INTERVIEWED, IT IS DIFFICULT FOR AN INVESTIGATOR TO CONDUCT WORK ON MORE THAN 20 CASES AT ONE TIME. THE OHR'S PENDING CASE INVENTORY AT THE END OF FISCAL YEAR 2001, WAS 567 CASES AND ITS BACKLOG WAS 450. FOR MOST OF FISCAL YEAR 2002, APPROXIMATELY 130 CASES WERE ASSIGNED TO THE MEDIATION UNIT WHERE THE OFFICE ASSISTED IN ATTEMPTING TO NEGOTIATE A SETTLEMENT AGREEMENT. MANY OF THE CASES SETTLED DURING MEDIATION. IN FACT, DURING FISCAL YEAR 2002, MEDIATED CASES TOTALED $1,600,000 IN SETTLEMENTS AND BENEFITS.

AFTER SUBTRACTING THE 130 CASES IN MEDIATION, APPROXIMATELY 437 CASES WERE AWAITING INVESTIGATION WITH TOO FEW INVESTIGATORS. AS OF FEBRUARY 28, 2003, WITH A PENDING INVENTORY OF 467 CASES AND A BACKLOG OF 370, INVESTIGATORS MAINTAIN A CASE LOAD OF APPROXIMATELY 80 CASES, WHEN THEY COULD ONLY EFFECTIVELY HANDLE APPROXIMATELY 20 AT ONE TIME. OVER THE YEARS, WITH THE GROWING NUMBER OF NEW CASES, THE TASK OF REDUCING THE BACKLOG BECAME AN OVERWHELMING ONE WITHOUT ADEQUATE STAFF. IN FACT, THE OHR STAFF CONTINUED TO CLOSE CASES, AT A RATE OF BETWEEN 90% AND 175% OF THE NEW CASES RECEIVED, BUT WAS ONLY ABLE TO REDUCE THE BACKLOG BY SEVEN PERCENT OF THE TOTAL PENDING INVENTORY.

WHEN LOOKING AT OTHER HUMAN RIGHTS OFFICES ABOUT THE SIZE OF THE OHR AND IN MAJOR METROPOLITAN CITIES, THE NUMBERS DEPICT THAT THE OHR INDEED HAS FEWER INVESTIGATORS BUT IS PERFORMING AS WELL AS AND BETTER THAN THESE JURISDICTIONS. FOR EXAMPLE:


HOWARD COUNTY OFFICE OF HUMAN RIGHTS

PENDING INVENTORY:60 CASES
BACKLOG:0
BACKLOG DEFINED:CASES PENDING FOR 6 TO 12 MONTHS
CASES CLOSED IN FY02:92
DOCKETED CASES IN FY02:60
INVESTIGATORS:2.5
CASES PER INVESTIGATOR:24


OFFICE OF HUMAN RIGHTS FAIRFAX COUNTY

PENDING INVENTORY:584 CASES
BACKLOG:247
BACKLOG DEFINED:CASES PENDING FOR OVER 500 DAYS
CASES CLOSED IN FY02:300-400
DOCKETED CASES IN FY02:700 (APPROXIMATELY)
INVESTIGATORS:13
CASES PER INVESTIGATOR:45


HUMAN RELATIONS COMMISSION MONTGOMERY COUNTY

PENDING INVENTORY:274 CASES
BACKLOG:0
BACKLOG DEFINED:CASES PENDING FOR OVER 180 DAYS
CASES CLOSES IN FY02:UNAVAILABLE
CASES DOCKETED IN FY02:UNAVAILABLE
INVESTIGATORS:8
CASES PER INVESTIGATOR:34


MARYLAND COMMISSION ON HUMAN RIGHTS

PENDING INVENTORY:800 CASES
BACKLOG:350
BACKLOG DEFINED:CASES PENDING FOR OVER 220 DAYS
CLOSED CASES IN FY02:700
CASES DOCKETED IN FY02:1000
INVESTIGATORS:23
CASES PER INVESTIGATOR:35


NEW YORK CITY OFFICE OF HUMAN RIGHTS

PENDING INVENTORY:1,200 CASES
BACKLOG:LESS THAN 20
BACKLOG DEFINED:1 YEAR
CASES CLOSED IN FY02:4,000
CASES DOCKETED IN FY02:500
INVESTIGATORS:30
CASES PER INVESTIGATOR:40


PINELLAS COUNTY FLORIDA OFFICE OF HUMAN RIGHTS

PENDING INVENTORY:250 CASES
BACKLOG CASES:3
BACKLOG DEFINED:CASES PENDING FOR OVER 100 DAYS
CASES CLOSED IN FY02:200
CASES DOCKETED IN FY02:300
INVESTIGATORS:5
CASES PER INVESTIGATOR:50


NEW JERSEY DEPT. OF CIVIL RIGHTS

PENDING INVENTORY:1,500 CASES
BACKLOG:250
BACKLOG DEFINED:CASES PENDING FOR OVER 100 DAYS
CASES CLOSED IN FY02:1,200 - 1,500 (APPROXIMATELY)
CASES DOCKETED IN FY02:2,200
INVESTIGATORS:25
CASES PER INVESTIGATOR:60


A COMPARISON OF THESE NUMBERS TO THE OHR FOR FY02 REVEALS THAT, WITH THE EXCEPTION OF NEW YORK, WHICH HAD EXTENSIVE ASSISTANCE FROM CONTRACTORS TO CLOSE CASES DURING FY02, THE FY02 CASE CLOSURE RATE IS APPROXIMATELY 40 CASES PER INVESTIGATOR. IN FY02, MANY CASES WERE RESOLVED BY MEDIATION. HOWEVER, WHEN COMPARING THE NUMBER OF CASES CLOSED TO THE NUMBER OF INVESTIGATOR'S, THE OHR'S CLOSURE RATE WAS 83 CASES PER INVESTIGATOR, MORE THAN 100% HIGHER THAN THE AGENCIES SURVEYED. I WILL ALSO ADD THAT LIKE SOME OF THE ABOVE AGENCIES, THE OHR HAD ASSISTANCE FROM A CONTRACTOR IN FY02. THE OHR'S CONTRACTOR WAS CURTIS LEWIS AND ASSOCIATES, INC. IN FISCAL YEAR 2002, CURTIS LEWIS AND ASSOCIATES INVESTIGATED 13 CASES AND WROTE LETTERS OF DETERMINATION IN 29 CASES ON BEHALF OF THE OHR.

THE OHR WAS ABLE TO REDUCE THE BACKLOG IN FISCAL YEAR 2002 WITH THE ASSISTANCE OF ITS NEWLY RE-ESTABLISHED LEGAL UNIT. AS YOU KNOW, WITH THE APPROVAL OF THE COUNCIL IN FISCAL YEAR 2002, THE OHR'S STAFF GREW TO 20, WHICH INCLUDED FOUR FULL TIME INVESTIGATORS. TWO OF OHR'S 20 FTE'S INCLUDED A MUCH NEEDED GENERAL COUNSEL AND ATTORNEY ADVISOR. THEREFORE, EFFECTIVE AUGUST 12, 2002, THE OHR'S LEGAL UNIT WAS RE-ESTABLISHED AFTER MANY YEARS OF BEING WITHOUT LEGAL COUNSEL. SUCH COUNSEL IS NECESSARY TO ASSIST STAFF WITH COMPLEX ISSUES WHICH MAY ARISE DURING AN INVESTIGATION AND TO CONDUCT A LEGAL SUFFICIENCY REVIEW OF BOTH AN INVESTIGATION AND A DRAFT DETERMINATION BEFORE THE ISSUANCE OF A FINAL LETTER OF DETERMINATION. THE END RESULT HAS BEEN AN IMPROVEMENT IN THE SPEED AT WHICH THE OHR ISSUES LETTERS OF DETERMINATIONS AND AN IMPROVEMENT IN THE QUALITY OF THE DECISIONS.

SINCE BECOMING INTERIM DIRECTOR IN JUNE 2002, I HAVE TAKEN SEVERAL STEPS TO BOTH RID OHR OF ITS THE BACKLOG AND REDUCE THE PROCESSING TIME FOR COMPLETING AN INVESTIGATION. THOSE STEPS INCLUDE: 1) STAFFING THE LEGAL UNIT AS MENTIONED ABOVE; 2) HAVING MEETINGS BETWEEN THE LEGAL UNIT AND THE INVESTIGATORS TO DISCUSS COMPLEX CASES AND STREAMLINING THE PROCESS FOR WRITTEN DECISIONS; 3) PRIORITIZING AGED CASES SO THAT INVESTIGATORS FOCUS ON COMPLETING INVESTIGATIONS ON THE MOST AGED CASES FIRST; 4) INSTITUTING A QUOTA FOR COMPLETING AT LEAST SIX INVESTIGATIONS PER MONTH; 5) PROVIDING CLEAR GUIDANCE TO INVESTIGATORS ON WHAT IS EXPECTED DURING THE INVESTIGATIVE PROCESS, INCLUDING MONITORING THE PARTIES' COMPLIANCE WITH THE OHR'S DEADLINES FOR RESPONSES TO INTERROGATORIES AND DOCUMENT REQUESTS; 6) ISSUING AN ORDER REQUIRING THE PARTIES TO COMPLY WITH OHR'S DEADLINE AND NOTIFYING THE PARTIES THAT FAILURE TO COMPLY WITH THE ORDER MAY RESULT IN AN ADVERSE INFERENCE OR DISMISSAL OF THE COMPLAINT; 7) HIRING AN ADDITIONAL INVESTIGATOR; 8) INSTITUTING A LIMITED INVESTIGATION PROCESS BEFORE ASSIGNING CASES TO MEDIATION; 9) REQUIRING INVESTIGATORS TO ATTEND TIME MANAGEMENT TRAINING; 10) MONITORING AGED CASES IN MEDIATION AND INVESTIGATION MORE CLOSELY; 11) HIRING LEGAL INTERNS TO WRITE DRAFT LETTERS OF DETERMINATIONS; AND 12) RECRUITING LEGAL INTERNS FROM AREA LAW SCHOOLS, INCLUDING DC SCHOOL OF LAW, TO ASSIST WITH INVESTIGATIONS AND DRAFTING LETTERS OF DETERMINATIONS.

I HAVE ALSO MADE A CHANGE TO IMPROVE THE SPEED AT WHICH CASES MOVE THROUGH THE COMMISSION ON HUMAN RIGHTS. AS YOU KNOW, ONCE THERE IS A PROBABLE CAUSE DETERMINATION, THE OHR CONDUCTS ANOTHER MEDIATION SESSION TO ASSIST THE PARTIES WITH NEGOTIATING A SETTLEMENT. IF A CASE IS NOT SETTLED THROUGH THIS PROCESS, THE OHR CERTIFIES THE CASE TO THE COMMISSION ON HUMAN RIGHTS FOR AN ADMINISTRATIVE TRIAL PROCESS WHICH INCLUDES THE PARTIES HAVING AN OPPORTUNITY TO CONDUCT DISCOVERY, FILE DISPOSITIVE MOTIONS, CONDUCT A PRE-HEARING CONFERENCE, AND CONDUCT AN ACTUAL HEARING.

FOR MUCH OF FISCAL YEAR 2002, THE OHR PAID CONTRACT ATTORNEYS TO REPRESENT COMPLAINANTS BEFORE THE COMMISSION. WITH THE BUDGET CUTS SUFFERED BY THE OHR IN FISCAL YEAR 2003, THE OHR DID NOT HAVE SUFFICIENT FUNDS TO PAY CONTRACT ATTORNEYS. CONSEQUENTLY, THE OHR'S ATTORNEY ADVISOR, AN OHR INVESTIGATOR WHO IS AN ATTORNEY, AND THE OHR'S RECENTLY HIRED COMPLIANCE OFFICER, WERE ASSIGNED TO REPRESENT SEVERAL COMPLAINANTS BEFORE THE COMMISSION.

THE OHR INTENDS TO CONTINUE TO TACKLE ITS BACKLOG WITH THE GOAL OF COMPLETELY ELIMINATING THE BACKLOG AT THE END OF FISCAL YEAR 2004. THE OHR PLANS TO ACCOMPLISH THIS GOAL WITH THE ASSISTANCE OF THE MEASURES DESCRIBED ABOVE AND BY CONDUCTING INTENSIVE TRAINING OF ITS CURRENT STAFF SO THAT THEY MAY HAVE A WORKING KNOWLEDGE OF EEO LAW AND SOUND INVESTIGATIVE TECHNIQUES. THE TRAINING WILL BE CONDUCTED BY THE OHR'S COMPLIANCE OFFICER, GENERAL COUNSEL, AND ATTORNEY ADVISOR.

WHILE IT CONTINUES TO TACKLE THE BACKLOG, THE OHR WILL ALSO PERFORM SOME OF ITS OTHER OBLIGATIONS UNDER THE HUMAN RIGHTS ACT AND EXECUTIVE ORDERS SUCH AS: UPDATING THE DISTRICT'S EEO POLICIES, PARTICIPATING IN COMMUNITY EVENTS SO THAT THE COMMUNITY IS EDUCATED ABOUT THE SERVICES THAT THE OHR PROVIDES. IN ADDITION, THE OHR WILL CONTINUE TO MONITOR AGENCIES' COMPLIANCE WITH EXECUTIVE ORDER 2002-175 ON UNIFORM NON-DISCRIMINATION LANGUAGE. THE OHR HAS BEEN CONTACTING AGENCIES REGARDING THE STATUS OF THEIR FULL COMPLIANCE WITH THIS EXECUTIVE OVER THE PAST WEEK AND WILL FOLLOW-UP WITH CORRESPONDENCE TO AGENCIES WITHIN THE NEXT WEEK.

THIS CONCLUDES MY TESTIMONY ON THE OHR'S PERFORMANCE AND GOALS. I AM HAPPY TO ANSWER ANY ADDITIONAL QUESTIONS THAT YOU MAY HAVE AT THIS TIME.


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