Federal Reserve Board (OIG Audit 2015-MO-B-006): Performance Ratings Differences Wrongly Diminished; Board’s New Performance Management Approach May Be Based on Grote Approach and Fierce Conversations

I have reviewed a report by the Office of the Inspector General (OIG) for the Federal Reserve Board (Board) [The Board Can Enhance Its Diversity and Inclusion Efforts, Audit Report 2015-MO-B-006], and I am disappointed with the weakness of investigatory probing in the part of the report discussing the Board’s performance management policy. Specifically, I question the independence of the OIG when the OIG is following the Board’s performance management policy, yet the OIG does not describe the program in its audit report.

Moreover, the position of the Board’s Chief Operating Officer, Don Hammond, does not inspire confidence. Rather than addressing any signs of unfair and inequitable workplace practices, he makes arguments to defend the status quo. A status quo that includes Artis v. Bernanke (or Yellen) and Robert Auerbach’s observations.

In addition, Mr. Hammond focuses on job level measures, yet ignores that the Board’s policy is implemented on an agency level (in 2011-2013 and after that period). As such, the agency level measures (between Whites and African Americans as well as between Whites and Asians) are relevant measures and need to be further studied and addressed.

Statement of Don Hammond, Federal Reserve Board Chief Operating Officer

Glassdoor.com Review

With respect to the more relevant job level analysis [performed by an independent consultant, see Appendix E of the OIG audit report], the independent consultant concluded that there is no trend of statistically significant differences between White and African American performance ratings when the data are analyzed at the job level. (OIG report, page 100 (carryover paragraph)) (Emphasis (in bold) by blog author.)

[Author’s note: However, the independent consultant did find statistically significant differences at the agency level between Whites and African Americans and between Whites and Asians. (OIG report, Appendix E, page 90 (third full paragraph))

Review submitted 24-August-2013:

I have been working at Federal Reserve Board full-time (more than 3 years)

Doesn’t Recommend Neutral Outlook Disapproves of CEO

Pros

Prestige (for what it’s worth), adjacent to National Mall, OK cafeteria, annual leave, insurance (health, dental, vision), raises available (but if you are not one of the 20% “high performers”, you will tread water economically with low raises with 70% of the staff at the “commendable” (nice way of saying average) level.)

Cons

Performance evaluations (that is, the dreadful so-called PMP) use the forced distribution, or “rank and yank” method. Google it; forewarned is forearmed. A set percentage are given bad reviews, with encouragement to quit. The internal webpage shows no one gets below commendable; do not believe it. The entire performance evaluation system is a true insult to workers who bravely try to meet impossible-to-satisfy expectations. Again, my fellow human beings–beware.

[To employees (current and future): As low-level managers will be taking notes for the PMP on computer, you must make sure to ask for a copy of any managerial documentation with your name on it. If denied, make note of the denial. Also, take assignments, do well on them, write a success list (for your own eyes only) so that you can update your resume and leave at will. Your heart, soul, and mind will thank you when you leave the building for the last time.]

Resistance to necessary change. Just because it worked in 1970 does not mean the exact practice must continue in the Internet era.

Excessive division between PHD and non-PHD staff. PHD staff advances; the rest languish.

Advice to Management

Complete transparency (that is, sunshine) should be standard operating procedure. Employees have a right to know if managers are making adverse decisions about their careers behind closed doors with a outside facilitator.

Forced distribution ultimately will cause systemic failure, requiring congressional attention to fix the mess.

With regard to the Board’s new performance management process, there is no specific description of the plan provided by either the OIG or the Board. However, there is a Glassdoor.com employee review (August 24, 2013) that provides some idea about what the Board may have implemented–A Dick Grote-style system (see Glassdoor.com review in table). If true, this Grote system will provide no improvement; the annual statistical review (OIG recommendation 3 and management response, page 101 of the OIG report) that the Board questions on a cost basis becomes an absolute necessity.

The new performance management process was piloted in five divisions and the OIG for performance year 2013–2014, with full implementation in all Board divisions in the 2014–2015 performance year. The purpose of the new process is to align staff to the work of the Board, provide greater accountability, support the growth of staff, improve the value of time spent, and increase the fairness of the process. In addition, the new process involves frequent conversations between employees and their managers that are designed to develop and grow employees’ capabilities. The Board contracted for the necessary expertise to assist with the program’s implementation, which includes information sessions, tools and guides, training, and other support. [Page 30 of the OIG report] (Emphasis (in bold) by blog author.)

Bucket

 (rank)

Percentage (amounts can be adjusted) Effect
A 20 Lavish rewards, encouragement
B 70 Little to paltry increase
C 10 Pressure to quit or firing

Given the Glassdoor.com review, there is reason to believe that the new performance management process, implemented across the Board (including the OIG), is the Grote Approach. In addition, the conversation method is governed by the Fierce Conversations program. Dick Grote favors forced distribution, a system that does not benefit protected class members. (The forced distribution issue covered in numerous posts in this blog.)

But what if a company’s forced ranking procedure, honestly and objectively done, reveals that the blacks or women or disabled employees just aren’t as talented as the white ones? Should they do what some Harvard professors are said to do and award A’s to all the blacks, just to keep them from squawking?” (Grote, page 4 (a quote from a previous post)).

(Note: Consider this statement from Grote with the ever-present and persistent legacy of slavery and Jim Crow subjugation in the United States of America.)

The general approach of the Grote process is to make the employee responsible for satisfying the whims of the manager. If the employee cannot read their manager’s mind, the employee must quit or be fired.

Unique to Discipline Without Punishment is the final step before an employee’s termination – the Decision Making Leave. The employee is suspended for a day with full pay. On this day he must make a final decision: either solve the problem and commit to fully acceptable performance, or quit and find more satisfying employment somewhere else.

The Grote Approach is summarized below (information from Grote Consulting’s website).

Performance Appraisal

Corrective Action

Callibration

Does everyone know exactly what you expect and exactly how well they’re doing? We can help you create a new performance appraisal system that is simple and effective. Or tune up a worn-out one. And we can train your managers to be masters of performance management. Does your existing corrective action system solve problems, enhance relationships, and build personal responsibility? Does it reflect your organization’s values? Are your managers comfortable holding tough performance improvement conversations? We can help. Calibration systems assure appraisal accuracy, guarantee differentiation, and drive the truth into performance management. We can help you create a successful approach and train your managers and facilitators to use this this deceptively simple procedure skillfully.

WMATA: Search under way for the Next General Manager of DC’s Metro System; Transit Authority Needs Dedicated Revenue Source

The Washington Metropolitan Area Transit Authority (WMATA) is searching for another General Manager. Finalists from an initial search were released because of a difference of opinion of what type of General Manager (GM) WMATA should have–a “financial turnaround specialist” or a traditional transit executive. A transit executive would be preferable because (1) transit is a public service, not a profit-generating business, and (2) the system is responsible to the welfare of all human beings using or operating the system each day.

I am skeptical of any financial turnaround specialist because the true test for one was in 2008 during the United States financial crisis. None showed up (excepting the Obama Administration), and, thus, I do not expect any candidates for WMATA.

State Amount of Funding
(components are rounded; in millions of dollars)
FY 2010 FY 2011 FY 2012 FY 2013 FY 2014
Maryland 215.6 228.1 246.4 263.6 279.7
District of Columbia 201.6 214.15 233.3 249.1 271.7
Virginia 129.4 129.7 142.2 156.5 181.0
Subtotal subsidy 546.7 572 622 669.2 732.4
Debt service 27.5 48.7 48.7 37 33.0
Audit adj fy 2011 and 2012 -30.5
Total (budgeted) 574.2 620.7 670.7 706.2 734.9
Actual* [630.7] [722.51] [687.02] [711.10]
(6/30/10) (6/30/11) (6/30/12) (6/30/13)

The difficulty with deciding to take the GM job with WMATA remains the same as specified in a previous post. Primarily, WMATA still does not have a dedicated source of revenue. It is interesting that Maryland supports a financial turnaround specialist for WMATA, yet Maryland provides funds for Baltimore’s subway and light rail system. WMATA’s unique financial and political circumstances make WMATA a challenge, one most incumbents only keep the job for about 3-4 years, excepting Richard White. Even with the challenges, there should be transit executives willing to accept the GM job, well aware of the high stakes (and potentially short-term nature) of the job.

Passenger Fares and Parking Fees
(rounded; in millions of dollars)
FY 2010 FY 2011 FY 2012 FY 2013
Budgeted 702.7 789.5 767.7 874.0
Actual* 727.8 (6/30/10) 804.5 (6/30/11) 816.7 (6/30/12) 856.8 (6/30/13)
*Actual amount comes from Metro’s statement of revenues, expenses, and changes in net assets. This statement does not identify parking fee revenue; I used the total revenue amount in the table.

The financial statements are not yet available for 2014, and the ridership numbers are estimated for 2013. However, I have updated information for WMATA as it was available at the time of this post.

Ridership
(in number of trips)
2010 2011 2012 2013
Rail Bus Rail Bus Rail Bus Rail Bus
217,219,146 123,670,000 217,052,000 124,173,000 212,188,640 131,780,990 209,000,000* 136,000,000*
* Estimated
Source: Metro Facts.

Interesting Background Facts (source: Metro Facts 2014)

Metrorail system age: 39

Organizational Structure of Metro (Metro Compact Article III)

[Four legislative bodies–Congress (federal government), D.C. City Council, Md. state legislature (Montgomery and Prince George’s), Va. state legislature (Arlington, Fairfax, and Alexandria) (subsidy funding)]

Board of Directors (8 members selected from each jurisdiction [federal government, District of Columbia, Maryland, and Virginia]) [Note:  There are 8 alternates.]

Officers (General Manager, Secretary, Treasurer, Comptroller and General Counsel and such other officers as the Board may provide.)

Metrobus

328 routes (breakdown by jurisdiction not available)

Metrorail stations (by state)

Total: 91

District of Columbia: 40 (38.3 miles of track)

Maryland: 26 (Prince George’s County (15) and Montgomery County (11)) (38.31 miles) [Note: The state of Maryland operates its own subway in Baltimore, Md.]

Virginia: 25 (Arlington County (11), Fairfax County (11), and the City of Alexandria (3)) (41.47 miles)

 

Federal Reserve Board (OIG Audit 2015-MO-B-006): Inspector General Issues Audit Report on Board’s Diversity and Inclusion Processes; Board’s Claim of TotaI “Independence” Unjustified

The Office of Inspector General (OIG) for the Federal Reserve Board (Board), responding to a 2014 Congressional request (Appendix A of the OIG’s report), performed an audit of the Board’s diversity and inclusion processes. On March 31, 2015, the OIG issued a report.

Authors of Board OIG Audit Report, 2015-MO-B-006
Name Title
Anna Saez OIG Manager
Kimberly Perteet Senior Auditor and Project Lead
Sopeany Keo Senior Auditor
Brian Murphy Auditor
Sean Newman Auditor
Timothy Rogers Senior OIG Manager for Management and Operations
Melissa Heist Associate Inspector General for Audits and Evaluations

Overall, I am disappointed with the overall stagnation of the Board; a situation caused by institutional zeal for broad independence through the Board’s citation of 12 U.S.C. section 244. And, I could understand an argument for only the Federal Open Market Committee and only monetary policy making. But it is unreasonable to expect the people of the United States in America to accept an “independence” stance that requires the Board, a federal agency, to be free from federal employment statutes that were adopted into law long after 1913, including civil rights laws and Title 5 of the U.S. Code. Asking any citizen in the present day to respect employment law from 1913 or to allow the Board to choose which statutes it will follow (or comply with) is totally unacceptable.

The money that the Board comes from the people of the United States of America, which has a government that possesses authority to govern through the consent of its people. Once the government loses that consent, authority is lost. The Board, in its quest to protect a nebulous independence for non-monetary-policy administrative activities, forgets this bedrock principle and risks institutional failure. [Author’s note:  Congressional amendment of 12 U.S.C. section 244 is necessary regardless of the history of frustration with the Board. (I am aware of past difficulty with this subject. (See Auerbach, Robert D. (2008), Deception and Abuse at the Fed: Henry B. Gonzalez Battles Alan Greenspan’s Bank, Austin: University of Texas Press, pages 122-124.))]

The Board must come into compliance with all civil rights laws and regulations and conform its policies to Title 5 in order to have full legitimacy. The Board’s “independent” behavior does not inspire confidence for the Board. For example, with the long case (18+ years as of the date of this post) involving employment discrimination, in Artis v. Bernanke or Artis v. Yellen or another employment discrimination case discussed in Auerbach, Robert D. (2008), Deception and Abuse at the Fed: Henry B. Gonzalez Battles Alan Greenspan’s Bank, chapter 8, where an African American employee, holding a position of statistical assistant, ultimately had to sue for a promotion. Successful with the litigation, the affected employee won the promotion, back pay, and compensatory damages.

Litigation is expensive, and most employees cannot afford it. So to expect a rank-and-file employee to have an expensive legal process as the sole procedure to argue against the Board (which has all of its legal expenses are covered by the taxpayer (as the paper money comes from the economic activity of the country, not the Board)) is manifestly unreasonable.

Furthermore, I question the Board’s maintenance for broad statutory compliance exclusions when it fails to voluntarily evaluate its employment practices to ensure a fair and equitable workplace, separate from the Equal Employment Opportunity complaint context. When the outside consultant determined possible disparate impact, the Board argues that focus should be on a narrower ground–job level (page 99 of the report, memorandum from Don Hammond, Board Chief Operating Officer (COO), third full paragraph (citing Wal-Mart Stores v. Dukes, 131 S. Ct 2541, 2555 (2011)). [Author’s note: The Board is a fraction of the size of the Wal-Mart Company nor does the case prevent proactive, introspective inquiry.]

This point from the Board COO might have been a valid point except for the data in figure 4. In figure 4, most of the Black/African American employees are in the lower level of the agency. Also, in terms of performance ratings (Appendix F of the OIG’s report) between White and Black employees, White employees overall get the higher average performance ratings than Black employees. Certainly, an inquiry as to what factors lead to that result and whether bias enters anywhere into the performance appraisal process would be reasonable, if the goal is to maintain a truly fair and equitable workplace.

In addition, the Board’s COO reflects an obstinate attitude because if an agency is interested in a fair and equitable workplace, any receipt of possible disparity should initiate a voluntary, intra-agency inquiry as to whether any of its practices are causing any disparity (and providing any remedies), without waiting for an employee complaint. Such an adversarial attitude causes further distrust of the Board and demonstrates why more accountability to (and compliance with) all U.S. statutes regarding civil rights and federal employment is needed.

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Amazon faces lawsuit alleging unfair labor policies

Alex W.:

Makes one think about working for Amazon (or subscribing to its Prime service).

Originally posted on PandoDaily:

amazon-prime

A new lawsuit alleges that Amazon docks its workers a half-hour’s worth of pay if they clock in more than three minutes after their shift is supposed to start.

The lawsuit also claims that a shortage of punch clocks, security checks, and other factors outside of employees’ control “regularly result in lost vacation time, smaller paychecks and termination,” Courthouse News Service reports.

The warehouse workers then face a difficult decision: work for 27 minutes without pay, or risk the company’s wrath by refusing to work until they’re officially considered to be on the clock. Most workers opt for the unpaid labor.

Many workers are said to arrive early for their shifts in an effort to make it through the crowded lines, punch in before the end of the three-minute grace period, and shorten their breaks so they can repeat the process all over again.

All of which means, if the allegations…

View original 240 more words

Thomas Jefferson High School for Science and Technology: Statement of Robert “Bob” Frye in Washington Post Article about Black Student Applicants Unnecessarily Offensive and Counterfactual

Thomas Jefferson High School for Science and Technology (TJHSST), is a Fairfax County, Va., high school that focuses on science and technology. Admission to the public high school is through an admissions process. It is a school which has been a topic of a few posts on this blog.

In the Washington Post, on March 31, 2015, there was another article about the composition of the class at TJHSST, particularly that the number of Asian students had increased. The article did not mention that the number of White students has been on a trend of general decline since the class of 2015.

Thomas Jefferson High School for Science and Technology, Number of Admitted Students
Race Class of 2019 Class of 2018 Class of 2017 Class of 2016 Class of 2015
Asian 346 323 317 308 273
White 102 117 123 126 161
Black 8 10 5 7 6
Hispanic* 12 8 15 13 13

*The term “Hispanic” represents national origin, not race.

Fairfax County, Va. (population: 1,137,538 (2010 Census)

Race Percentage of population Number
White 67.2% 764,426
Asian 18.8 213,857
Black 9.9 112,616
Native American 0.7 7,963

admitted student table 2

The issue of the paucity of Black students at TJHSST has been a concern. “Outreach” is usually provided as the solution; however, mere outreach is not necessarily needed because an earlier post showed that many Black students were passing the admissions test, yet very few were being admitted.

So, upon reading a statement of Mr. Robert “Bob” Frye, a former Fairfax County School Board (FCSB) member (said to be “one of the longest serving black members” of FCSB), I took exception to it as–

  • the statement at once presumed that concern about Black student admissions rate is equivalent to “lowering standards” and
  • the statement is contrary to the admissions data (presented in the charts above).

Mr. Frye is quoted as saying–“‘I have no interest in lowering the standards at TJ,’ said Frye, 78, who served as chairman in 1999 and 2000. ‘I believe even now with the proper amount of preparation and interest the numbers [of black students] could surely be higher than they are now.'”

The numbers have shown a consistent low number of Black student admissions, despite many more Black students passing the test (a complaint to the U.S. Department of Education’s Office of Civil Rights on this latter point is ongoing (since 2012)), so this reality contradicts the suggestion that the answer is that Black students (who want to attend a science and technology institute) need better preparation to pass the admissions test.

Had Mr. Frye simply left his statement that the administration should look at admissions process of TJHSST that, alone, would not have provoked a negative reaction (but, notably, Mr. Frye has made such statements before in the past, yet in 2015, the same request is still being made).

The data provided by Fairfax County Public Schools, cited, in part, in the charts above, are not complete as the composition of the student test passers is not provided. That data are needed to see what the issue of the low Black admitted student numbers. Without it, a fair determination or evaluation cannot be made.

But, undeniably, there is a definite shifting in the TJHSST student body composition. It will be interesting to see if TJHSST remains a public school.

Religious Freedom Restoration Act (Indiana): Use of Religion as a Cudgel and Shield for GOP’s Political Policy Preferences

[Update (April 3, 2015): The State of Indiana has revised IC-34-13-9 so that the law would not affect “services, use of public accomodations, goods, employment, or housing on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.” (See Indiana Senate Enrolled Act No. 50, 2015 session.)]

It appears that the Republicans (GOP) has the mindset of using religion to cover for unpalatable policy preferences. In the Indiana Religious Freedom Restoration statute, IC-34-13-9, effective July 1, 2015, religion is defined broadly (section 5 of the statute) as is the definition of person (section 7 of the statute). With these two broad definitions, this statute could be used as the vehicle to oppose (or support) policy that the GOP opposes or supports. [In contrast, the federal Religious Freedom Restoration Act, P.L. 103-141, is specific (addresses particular Supreme Court decisions).]

These religious freedom bills destroy the meaning of religion in order to use “religion” as a political instrument. Section 5 of the Indiana law is so broad such that any claim of “religion” is enough to trigger the law against a disfavored government policy. Seemingly, the disfavored policies could be those which conflict with GOP tenets (for example, the Affordable Care Act, or ObamaCare (Indiana uses the federal marketplace.)).

The statute’s weakness is its vagueness. This same vagueness makes it a strong vehicle for “religion-” based policy preferences.

The logical structure appears to be the following:

GOP policy preference is not palatable with the broad society, thus there should be a mechanism to enforce that preference through an alternative means. For example, the vehicle in this case is “religious freedom.” (The logical structure is explained through the chart below.)

GOP logical argument Indiana Religious Freedom Restoration Statute, IC-34-13-9
Free exercise of religion is protected by the First Amendment of the U.S. Constitution.
Religious beliefs are also Constitutionally protected.
Religious beliefs belong to persons. Sec. 7: “As used in this chapter, ‘person’ includes the following: (1) an individual, (2) an organization, religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes, (3) a partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and may be sued, (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.”
Those religious beliefs may have policy preferences deriving from that belief, which should also be protected.
These preferences may include preferences similar to those of the GOP. Sec. 5: “As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
If so, that religious belief AND its derivative policy preferences should be Constitutionally protected.
Religious Freedom Restoration statutes recognize the tie between religious belief and its derivative policy preferences.
(But the concern is only for government.) Sec. 11: “The chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.”

The problem with the GOP’s use of religion is that it disrespects religion in order to use it as a policy weapon exclusively in order to force GOP policy preferences on the society. This activity is unfortunate, but policymakers must be aware of the technique, especially when crafting legislation.

Federal Reserve Board: Brief for case involving claim of racial discrimination; Artis v. Bernanke, 2011 decision of the D.C. Circuit Court of Appeals

Author’s note: This post will differ from previous posts in that it will feature a longer exposition. It is important to be a little longer because the case involving the class plaintiffs and the Federal Reserve Board has been ongoing for about 18 years. This case before the D.C. Circuit was decided in January 2011. On September 29, 2014, the district court denied class certification to the plaintiffs. See Artis v. Yellen, Civil Action No. 01-400 (EGS). The case remains active as of the date of this post.

Artis v. Bernanke, No. 09-5121 (D.C. Cir. 2011)

Summary: D.C. Circuit Court of Appeals held that class members claiming racial discrimination at the Federal Reserve Board (Board) did satisfy the Board’s Equal Employment Opportunity (EEO) regulations requiring a counseling session with the Board’s EEO office because the class did provide information about specific instances of discrimination and offered corresponding allegations of discrimination against individual class agents. The D.C. Circuit determined that such information was enough for the Board to investigate and try to resolve the class claims.

Facts: The plaintiffs, a class of secretaries currently and formerly employed by the Board, claimed that the Board systematically discriminated against them on account of their race in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.).

On January 15 and February 13, 1997, several class members, with counsel, initiated counseling with the Board, in accordance with Board regulations 12 C.F.R. §268.104(a). (Board EEO counselors, with a Board lawyer, held group counseling sessions on these days.)

On January 17, 1997, class members, responding to the Boards request for information, submitted 14 identical copies of a document, “Resubmission of Class-Action Complaint.” In the January 17 document, the secretaries alleged a systemic and pervasive pattern of discrimination against African American secretaries by the Board. Particularly, that the Board–

  • Paid them lower salaries than non-minority secretaries,
  • Awarded them fewer and smaller bonuses,
  • Granted them fewer promotions,
  • Deflated their performance appraisals,
  • Denied them privileges and training that non-minority secretaries enjoyed,
  • Unfairly enforced leave procedures against them, and
  • Discriminated against them in the quantity and quality of work assignments.

Between January 24 and February 18, 1997, Board EEO counselors met individually with nine secretaries, in which those secretaries confirmed the general allegations in the January 17 Resubmission document, and some of them recounted specific instances of discrimination from personal experience. The Board’s EEO counselors prepared reports based on the notes they took in these counseling sessions.

The class members filed an administrative complaint on March 3, 1997, but the Board dismissed the complaint on July 23, 1997. And, the U.S. Equal Employment Opportunity Commission affirmed the Board’s dismissal on November 18, 1998. The class filed a complaint in the federal district court on February 22, 2001.

The Board filed a motion to dismiss, which the district court denied. The district court ordered discovery on the issue of exhaustion, “whether the plaintiffs have satisfied their obligation to engage in counseling” and whether “the administrative counseling process was a futile exercise,” citing Artis v. Greenspan, 223 F. Supp. 2d 149 (D.D.C. 2002).

After five years of contentious discovery, the Board renewed its motion to dismiss in 2005, which the district court granted on January 31, 2007, holding that the court lacked subject matter jurisdiction over the class because the class members failed to exhaust the counseling requirement because the class failed to provide any meaningful information about specific instances of discrimination. The class members appealed.

Holding: The D.C. Circuit, vacating the decision of the district court and remanding the case to the district court, held that where counseling produces sufficient information to enable the agency to investigate the claim, that counseling purpose has been served. The court determined that the class members did provide meaningful information about specific instances of discrimination in the January 17 Resubmission document and offered corresponding allegations of discrimination against individual class agents. Such information, the D.C. Circuit reasoned, was enough for the Board to investigate and try to resolves the claims of the class members. (See pages 9-12 of the opinion for the specific allegations and the individual experiences of discrimination.)

Moreover, the court stated that it reviews challenges to dismissals for lack of administrative exhaustion de novo, as it is a question of law, citing Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800 (D.C. Cir. 2010).

Analysis: The purpose of counseling, the court explained, in the Title VII context, is clear from the text of the Board’s regulation–to enable the agency and its employee “to try to informally resolve the matter,” citing 12 C.F.R. §268.104(a), Wilson v. Peña, 79 F.3d 154 (D.C. Cir. 1996), and Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699 (D.C. Cir. 2009).

The court noted that Title VII’s exhaustion requirement should not be read to create useless procedural technicalities, citing President v. Vance, 627 F2d 353 (D.C. Cir. 1980). An agency risks misusing the counseling requirement, the court explained, when it demands excessively detailed support for a class-wide complaint alleging a pattern and practice of subtle financial and professional discrimination.

Claims of systemically depressed salaries, performance ratings, advancement opportunities, and the like can often be proven only by statistical comparison of the employer’s treatment of the class to its treatment of non-minority employees, the court noted. The court continued, stating that such an analysis will only be possible after employees obtain data from their employer, informally or through discovery.

Thus, the court concluded that it would be perverse to dismiss a complaint for failure to provide adequate detail in counseling when all of the relevant data is in the employer’s exclusive control.

In addition, the court noted that the class status of the plaintiffs allows a representative plaintiff to satisfy the counseling requirement on behalf of similarly situated class members. As a result, the entire class exhausted administrative remedies by virtue of the class agents successful completion of counseling.

Moreover, the court noted in a footnote that failure to exhaust administrative remedies under Title VII is not jurisdictional because Title VII does not include a clear statement of that intent.