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SUBCOMMITTEE ON HUMAN RIGHTS,
LATINO AFFAIRS AND PROPERTY MANAGEMENT
COUNCIL OF THE DISTRICT OF COLUMBIA
WASHINGTON, D.C. 20004
PUBLIC OVERSIGHT HEARING
FEBRUARY 20, 2004
Performance of the Office of Human Rights for FY 2003KENNETH SAUNDERS, DIRECTOR
Chairperson Graham and members of the Subcommittee on Human Rights, Latino Affairs and Property Management. I am here today to present testimony on the performance of the Office of Human Rights for fiscal year 2003.
As you are aware, I became the Acting Director, OHR, on June 16, 2003, and appeared before you on October 17, 2003 for confirmation to this position. For fiscal year 2003, I served in the position for approximately three and one-half months; therefore my testimony will focus primarily on this period.
Before I address the performance of the Office of Human Rights for fiscal year 2003, I would first like to give you an overview of the respective units within the office, how the Office of Human Rights relates to and interfaces with the Commission on Human Rights, and then address the overall performance prior to and since my arrival. As I mentioned in my confirmation testimony, immediately upon my arrival, I restructured the Office by combining the Intake and Investigation units, and enhanced the processing of cases to achieve swifter results. We now begin the mediation process simultaneously while we initiate the investigative process. We also have a Compliance Unit, the Mediation Unit, the Fair Housing Unit and our Legal Division consisting of 2 attorneys.
Intake and Investigations
This is the first step in the process. Within 72 hours of receipt of a complaint, an EEO Supervisor, an attorney and I examine the elements contained in the complaint to determine whether a prima facie case has been established. If so, the case is then formally docketed and assigned to an Investigator. If a prima facie case has not been established, the case is not docketed. We have 5 days from the date of docketing to assign the case to an Investigator. The Investigator then begins the process by making contact with the Respondent. He or she provides a copy of the complaint to the Respondent, issues OHR’s first set of Interrogatories, requests documents that are relevant to the complaint, and seeks a signed and notarized Position Statement from the Respondent. When the Investigator receives the case, he or she copies the complaint and the copy is given to the Mediation Unit which has 15 days from the date the case was docketed, to schedule a mandatory mediation session. At this point, the Investigator continues to administer the case concurrently with the Mediation Unit. If it appears that mediation will be successful, the Investigator officially transfers the case to the Mediation Unit for handling. If the mediation is not successful, the Investigator continues the full investigation by interviewing witnesses, conducting site visits if and when necessary, and inspecting all records relevant to the case. During this stage, the Investigator may seek additional documents; issue additional Interrogatories or request additional statements from witnesses. At the conclusion of the Investigation, a Summary of Findings is prepared for submission to the EEO Supervisor and then on to the Legal Unit.
The Mediation Unit
Once a complaint is received in the Mediation Unit, the supervisor reviews the elements contained in it, so it can be assigned to one of our volunteer mediators who has expertise with those particular elements. As I stated earlier, we have 15 days from the date of docketing, to schedule a mandatory mediation conference. The complainant, respondent, and their legal representatives are contacted to schedule the mediation conference. At the conference, each party is notified of their rights and responsibilities, as well as the process that will be undertaken by our office. The Mediator chairs the conference. At the conclusion, if the parties agree on an outcome that is acceptable to both parties, a Settlement Agreement as well as an enforceable Order are prepared and signed by all parties, including the Mediator, the Supervisor of the Mediation Unit and myself. In many instances, settlements may also include monetary awards to the complainant. I will give you some statistics on monetary awards later in this testimony. A successful mediation also results in an administrative closure of the case. In the event that mediation is unsuccessful, the investigative process continues, up to the issuance of a Probable Cause finding, subsequent settlement, or dismissal of the case if the alleged charges are not substantiated. When Probable Cause is found, I sign a Letter of Determination and the case is then certified to the Commission on Human Rights.
The Compliance Unit
This unit is responsible for the handling of all conciliations, providing training, outreach and education to private and public entities, and ensuring compliance and conducting research on matters relating to human rights in the District of Columbia.
With respect to conciliation, upon issuance of a Probable Cause finding, the parties are advised of their right to participate in a conciliation process, as opposed to a full hearing before the Hearing Examiner at the Commission on Human Rights. The goal of the conciliation process is to provide equitable relief to the complainant and ensure that the respondent discontinues the discriminatory practices that led to this case. Depending upon the elements included in the case, the respondent may also be required to:
- Notify all employees in the affected facility that they have the right to be free from any and all unlawful discrimination; and that the particular type or types of discrimination found will not recur.
- Implement measures that will correct, cure or prevent the type or types of discrimination found.
- Unconditionally offer placement to the position the person would have occupied, but for the discrimination suffered by that person.
- Make the Complainant whole for any loss of earnings he or she may have suffered as a result of the discrimination.
- Discontinue from engaging in the type of unlawful discrimination that was found or conciliated in this case.
Upon the conclusion of a successful conciliation, a Settlement Agreement along with an enforceable Order are signed by all parties, including me, and the case is administratively closed. In the event that the parties decline conciliation or fail to reach an agreement, the case is certified by the Office and sent to the Commission for a full hearing. I will address the monetary awards made through the conciliation process later in my testimony.
The Legal Unit
Our 2 attorneys are primarily engaged in preparing Letters of Determination that are legally sufficient and able to withstand the scrutiny of the DC Superior Court. Our attorneys also handle all F.O.I.A’s; assist with administrative matters that have a legal effect such as employee grievances; work closely with the Office of the Corporation Counsel to enforce Orders that have been executed; provide advice relating to compliance matters and respond to inquiries that pertain to the District’s human rights laws. Regarding the preparation of the Letter of Determination, the attorneys review the Summary of Findings prepared by the Investigator as well as all documents contained in the file, prior to actually writing the LOD. Moreover, they conduct legal research on the case law relative to the elements contained in the case before them, and extract appropriate citations for inclusion in the final LOD. Whenever a letter of Determination results in a Probable Cause finding, the case is either certified to the Commission for a hearing, or the Complainant, by law, can proceed to file a motion in the DC Superior Court.
The Fair Housing Unit
This Unit has a Manager and 2 case workers who handle all discrimination complaints that are housing-based, as well as attend community forums and neighborhood meetings to share with the general public, the rights and obligations relating to housing laws and regulations. This Unit is also responsible for coordinating the annual Fair Housing Symposium that is scheduled for April 20, 2004. As you know, this is a citywide symposium jointly sponsored by the Office of Human Rights, the DC Dept of Housing and Community Development and the Equal Rights Center.
Housing cases are handled similarly to any other case that comes to the attention of OHR, with the exception that these cases focus specifically on discrimination in housing. For example, we have seen cases where landlords have failed to provide reasonable accommodations to persons who are disabled; we have had cases where applicants have been denied approval to rent apartments or purchase condominiums because of their race, national origin or sexual orientation; we have seen cases where borrowers have actually charged higher interest rates to minorities or foreign-born residents. For these cases, the process is the same as any other, that is, the investigative process simultaneously takes place while we attempt to reach a settlement through mediation. If mediation is successful, all parties sign a Settlement Agreement and an enforceable Order. If mediation is unsuccessful and there is a finding of Probable Cause, the case is certified to the Commission for a hearing.
The Commission on Human Rights
Within 5 days of receipt of the LOD from OHR, the Commission notifies the Complainant and Respondent that the case has been certified to it, that the Commission has legal jurisdiction for it, and the case becomes a public matter.
The parties are then required to submit information and documents in accordance with the Automatic Disclosure Rule and a status conference is scheduled.
At the status conference, deadlines are set for discovery (generally no more that 4 months), any dispositive motions and responses, and dates are established for the filing of pre-hearing statements, the pre-hearing conference itself, and the official hearing. It also allows the parties to entertain any motions and address any questions. At the end of the discovery period, the Respondent may request dismissal of the case, or part of it, if it is believed that a prima facie case was not supported by factual evidence. The pre-hearing conference generally addresses which witnesses and documents may be admitted into evidence, elicits any stipulations agreed upon by the parties, narrows the issues where possible, and entertains any motions.
The official hearing is conducted similarly to a court trial, where the Hearing Examiner acts as the presiding judge, there is testimony and cross-examination of witnesses on both sides, and documents are entered into evidence. In instances where the Complainant is unable to obtain private counsel, the government obtains and pays for an attorney, as well as for interpretation, translation and transcription services relating to the proceedings. Following the hearing and after the transcripts are received by the parties, post-hearing briefs may be filed. These briefs include each party’s findings of fact they believe they have proven, as well as the conclusion of law derived from those findings.
The Hearing Examiner then issues a Proposed Decision and Order that includes the findings of fact and the conclusions of law. If it is determined that the DC Human Rights Act was violated, the Order will include a remedy provision. At this stage, since the hearing was conducted by a Hearing Examiner, the Proposed Decision and Order is only a recommendation to the Commission. A closed tribunal meeting then takes place where at least 3 Commissioners read the entire record and examine the documents contained in the file, and a determination is made whether to accept, reject or modify the Proposed Decision and Order. The Commissioners’ decisions are final and enforceable, however, there are provisions for reconsiderations and appeals. Parties also have a right to appeal the Commissioners’ decisions directly to the DC Court of Appeals. The DC Court of Appeals may either accept the case or remand it to the Commission for further proceedings.
I would now like to address our fiscal year 2003 performance:
First, let me address what I think is on every one’s mind, particularly yours Chairman Graham.
- Aged cases
When I arrived at OHR on June 16th, 2003, the number of aged cases in the OHR inventory was 341. As you will recall, at the beginning of fiscal year 2003, this number was 353. On September 30, 2003, we reduced this backlog to 299, even below our scorecard goal of 300. Therefore, Chairman Graham, in the nine and one-half months before I arrived, the backlog had only been reduced a mere 12 cases, whereas in the three and one-half months under my leadership, we successfully reduced it by 42 cases. This is a substantial overall decrease in a very short time. I also want to add that as of this date, the backlog of Aged Cases is now 284.
- Pending cases
When I arrived at OHR, the number of pending cases was 482, and on September 30, 2003, we reduced it to 411. Today, this number is 438, however, this increase is directly attributable to the increased credibility of cases we are accepting. We are not alarmed by this increase because we are now processing cases more expeditiously, and when we examine the percentage of Aged cases to our pending inventory, we have actually decreased this percentage to 64% versus 71% upon my arrival.
- Dated Cases
We recently examined the number of cases that were in the OHR inventory and I have enclosed a summary report for your review. As you will see, in July 2001, the Office had a total number of 274 cases that were dated 1999 and prior. Today, we have only 11 cases – 1 from 1998 and 10 from 1999. The investigative process is finished on 8 of the 11 and they are with our attorneys for legal review and write-up.
- Closed cases
Prior to my arrival, the Office of Human Rights closed only 291 cases or 30.6 cases per month, whereas, in my 3-½ months, we successfully closed 227 cases or 64.9 cases per month. This represents a case closure rate that is more than twice the rate before I arrived. For this year, we have already closed 132 cases.
- Monetary Awards
Regarding the dollar value of benefits awarded to complainants, we awarded a total of $933,068.00 in fiscal year 2003, and as of this date, we have already negotiated awards totaling $647,793.00 ($143,000.00 per month average). At this pace OHR forecasts that it will mediate over $1.5 million in settlements dollars for FY04.
- Outreach and Education
Prior to my arrival, the Office reached only 88 individuals with its outreach, training and awareness. Between the time of my arrival and the end of fiscal year 2003, we provided outreach, training and awareness to an additional 334 individuals. In the first 4 months of this fiscal year, we have already reached a total of 1,042 individuals. OHR is also scheduled to provide Diversity training to 6 District agencies and a 32-hour EEO training to all EEO counselors throughout the DC government.
- Fair Housing Initiatives
At the time of my arrival, the Housing Unit conducted the annual symposium and had a pending inventory of 47 cases. There were no outreach activities or community events attended by OHR staff. By September 30, 2003, we attended 2 events in which approximately 40 attendees were present, and in the first 4 months of this fiscal year, we have already attended 5 community events where over 210 individuals were present. Today, the Housing Unit has an active inventory of 26 cases and has already closed 13 cases. Our relationship with the federal Dept. of Housing and Urban Development has also improved dramatically, according to the individuals who oversee our housing programs.
- FY 2003 Performance Evaluation
I am especially proud to report that the Office of Human Rights received a performance rating of 122.42% for fiscal year 2003, indicating an overall rating of "Exceeds Expectations". I have enclosed a copy of this evaluation in the documents submitted to your office.
I also want to highlight some additional results from the enhancements we implemented:
- Investigation and Mediation
As I mentioned earlier, we now have a "two-track" system whereby we begin the investigation process concurrently while seeking mediation. Formerly, the Office of Human Rights did not begin complaint investigations until after mediation had been attempted, which at times would take months. This change has resulted in a much faster resolution of cases.
- Development of Guidelines
There were no mediation standards or guidelines. We have now implemented a set of Mediation guidelines and are in the process of acquiring professional Mediation training for all of our Investigators (April of 2004).
- Non-compliance with legal Orders
Defendants were often not in compliance with legal orders and this Office offered very little enforcement support. We now work more closely with the Office of the Corporation Counsel to enforce these Orders.
- Accepting Complaints
Mere allegations are no longer enough to docket a case with our office. We now require evidence that will establish of a prima facie case of discrimination, prior to docketing.
- Language Access Act
We have already taken steps to implement the requirements outlined in the Language Access Act. I am working closely with the CFO’s office to allocate the funding that has been approved, and I have met with both Mr. Chen from the Office of Asian and Pacific Islanders and Mr. Velasquez from the Office of Latino Affairs to develop plans for coordination and implementation of this Act.
- Latino Issues Strategic Team
We completed the analysis regarding activities that are tracked by District agencies on services to the Latino population and are working with the team on further steps. We have also developed the Diversity, Inclusion and Awareness training and have started this training with District agencies.
- Monitoring of Productivity
I have implemented a productivity reporting system for all supervisors and investigators, on a monthly basis. By doing so, I am better able to manage the workflow and address potential problems before they arise.
Since my arrival, I have identified several deficiencies in the Office of Human Rights and have taken concrete steps to alleviate many of them. I strongly believe that we are on the right track in that we have addressed many of the operational problems that existed when I arrived. We have been vigorous in our efforts to reduce the number of Aged cases as well as those cases that are from 2001 and prior; we have implemented productivity standards for our Investigators and are closely monitoring performance; we have reached out to a significantly greater number of individuals, both internally and externally with our Outreach and Education efforts as well as our Diversity, Awareness and EEO training; and we have established better working relationships with other District agencies. When I testified before you for my confirmation, I indicated certain criteria that are important to me, if we truly want to succeed. I testified that it is important for the Director to have a total commitment to the mission of the Office and to the requirements of the civil rights and human rights laws. I believe that I have demonstrated that. I testified that it is important to establish clear goals and clear expectations for subordinate staff. They now understand what my expectations are and how their work will be evaluated. I testified that it is important to establish accountability from and to each individual and to the populations we serve. We continue to hold each other accountable and more and more, we are accountable to the populations we are serving. And finally, I am continuing the investment of resources in improving overall performance by encouraging training and development for all of our employees.
In closing, I once again thank each and every member of this Subcommittee for the opportunity to testify before you today. At this time I am prepared to answer any questions that you may have. Thank you again for this opportunity.