OIG: Interior Department backdated discrimination determinations and applied incorrect standards

A new inspector general’s report found that officials with an Interior Department bureau backdated multiple final agency decisions regarding discrimination cases within the agency to avoid untimely submissions to the Equal Employment Opportunity Commission.

The report, published Tuesday, also found that one bureau director applied an incorrect legal interpretation to evaluate discrimination claims that favored the complainant, despite EEO specialists' findings to the contrary. 

The report examined a sample of the final agency decisions, or FADs, filed by the department between June 2018 and September 2021, finding multiple instances where officials filed the decisions and recorded their completion with a different, previous date, potentially affecting a complainant’s right to appeal.

“The practice of backdating FADs can lead to confusion, and potentially abuse regarding the date on which the FAD was actually issued,” the report said. “The EEOC requires government agencies, including the DOI and [Office of Diversity, Inclusion and Civil Rights], to report the timeliness of the FADs it issues.”

When an employee files a discrimination claim, bureau EEO counselors and the ODICR director often process it to determine whether it meets regulatory requirements. 

The claim is investigated by an impartial DOI bureau employee or contractor, who then files a report with findings to the EEO bureau. The bureau then issues the report to the complainant and offers them the option of a hearing with an EEOC administrative judge or a FAD issued by the ODICR.

The complainant has 30 days to request a FAD, which the ODICR has 60 days to complete. If the FAD is not issued in that window of time, it misses its regulatory deadline and is considered an untimely decision. Once the FAD is rendered, the complainant has 30 days to appeal it to the EEOC or 90 days to file a civil action in a federal court. 

The OIG report found evidence that the ODICR acting director, division director, program director and director had all backdated FADs between June 2018 and September 2021, each for a variety of reasons. 

The report notes that “EEOC regulations do not specify that a FAD must be signed and dated on its issuance date, and ODICR had no guidance of its own on this topic,” and that backdating occurred between one to 15 days prior to when the decisions were ultimately signed.

“One ODICR staff member told us, however, that the acting director backdated FADs to create an appearance of timeliness and to boost the timeliness rate of the DOI’s FADs,” the report said. “In fact, the evidence confirmed that, between June and December 2018, the acting director backdated FADs. For example, the acting director signed and dated a FAD Aug. 13, 2018, even though the FAD was not issued until Aug. 28, 2018. Notably, Aug. 13, 2018, was the regulatory deadline.”

Furthermore, the OIG found that during “at least one performance rating period” ODICR staff and EEO specialists had timeliness goals for FADs issuances, which could have led to unsuccessful performance ratings if the decisions weren’t issued within 60 days, potentially incentivizing the practice of backdating them.

Multiple officials told the OIG they reviewed FADs on nights and weekends and dated them based on the prior business day. The report corroborated that at least the director had reviewed and signed FADs in a manner consistent with her statements, based on when ODICR staff ultimately issued them. 

The report also found that from September 2019 to September 2021, ODICR staff had been incorrectly instructed by the director to apply the evidentiary standard “in the light most favorable to the complainant” when evaluating discrimination claims. 

In order to find that discrimination has occurred, the complainant must demonstrate a preponderance of the evidence to support the claim. By applying the “in the light most favorable to the complainant” standard, the ODICR director and division director revised EEO specialist findings of no discrimination and incorrectly issued FADs favoring the complainant in at least five cases.

“The division director said he generally applied the preponderance of the evidence standard to determine whether discrimination had occurred because he understood that this was the correct legal standard to use,” the report said. “However, the division director told us that when a decision was a ‘close call’ or when there were gaps in the facts, including when a report of investigation provided insufficient evidence to form a conclusion,” he followed the director’s guidance. 

The OIG notified Interior officials during the investigation of the incorrect legal standard and the department took immediate corrective action. The report also confirmed that ODICR revised its handbook to clarify that FAD issuance dates are the date they are issued by the office and not when officials sign the decision.

The OIG did still offer six recommendations, including identifying FADs issued under the incorrect legal standard; to determine whether any disciplinary action, other personnel action or improper remedy was taken because of the incorrect standard; to review the DOI’s Annual Federal Equal Employment Opportunity Statistical Reports of Discrimination Complaints from 2018-2021 and ensure their accuracy; and to develop proper policies and training for the proper administration of FADs. 

Interior officials concurred with all six recommendations and took action to implement them. The OIG said it considered five of the recommendations resolved and the recommendation for develop proper FAD policies implemented.