Effective Date: June 01, 2012
Expiration Date: June 01, 2017
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C.1.1 This Implementation Guide provides supporting information on the Agency procedures for processing discrimination complaints based on sexual orientation under this NPR.
C.1.2 The guide is designed as an educational tool and desk-reference for EO staffs, counselors, and investigators, to assist in ensuring appropriate and effective complaint processing pursuant to the NPR.
C.1.3 To this end, the guide provides specific requirements and additional considerations to be addressed regarding the process itself and the communication of this policy to Agency employees and applicants for employment.
C.2.1 The EEO Counselor plays a vital role during the intake and pre-complaint (informal) stage of the process.
C.2.1.1 It is essential that the EEO Counselor remains neutral and offers an unbiased environment in which an aggrieved person can speak freely about the allegations of discrimination.
C.2.1.2 Of equal importance, the EEO Counselor is expected to be able to, upon hearing the specific facts of the allegation and collecting information about the bases and issues, properly notify the aggrieved person of the correct complaints process for his or her case.
C.2.2 The EEO Counselor's role requires an understanding of the complexities stemming from the fact that sex (or gender) is a protected basis under EEO law (Title VII of the Civil Rights Act) while sexual orientation is not.
C.2.2.1 In this regard, it will be noted that a complaint based on non-conformity with traditional gender stereotypes can, in certain instances, be processed under the EEO complaints process as a form of sex discrimination under Title VII.
C.2.2.2 A complaint raising sexual orientation discrimination unrelated to gender stereotyping will only be raised under this NPR because, while gender is a protected basis under Title VII, sexual orientation is not.
C.2.2.3 A complainant may raise both sex discrimination under Title VII and sexual orientation under this NPR.
C.2.3 For the reasons cited above and because the Title VII/EEO process offers more extensive appeal rights and broader allowances of damages, it is important that EEO Counselors understand the differences between the EEO complaints process and these procedures.
C.2.3.1 In cases in which the aggrieved person may be able to file a complaint of gender discrimination under the Title VII process (see Section C.2.2 above), EEO Counselors should seek advice from EO Directors and other appropriate individuals, should they have questions about the available avenues of relief.
C.2.3.2 The role of the EEO Counselor should be limited to presenting the available options to the aggrieved person and not addressing the merits of the complaint.
C.3.1 EO Counseling Roles and Responsibilities
C.3.1.1 EEO Counselors shall conduct counseling activities in accordance with the regulations found in Federal Sector EEO Regulations, the guidance contained in the EEOC Management Directive MD-110, and NASA policies and procedures.
C.3.1.2 The EEO Counselor shall not attempt in any way to dissuade the aggrieved person from filing a complaint.
C.3.1.3 The EEO Counselor shall not reveal the identity of an aggrieved person who consulted the Counselor, except when authorized to do so by the aggrieved person, or until the Agency has received a discrimination complaint under this NPR from that person involving that same matter.
C.3.1.4 Use of the iComplaints Database
a. Relevant contact information of the aggrieved person will be input into the iComplaints database and utilized by ODEO and Center EO offices for data management pertaining to discrimination complaints.
b. Where the person indicates that he or she wishes to remain anonymous, basic information will still be placed within iComplaints (contact date, issues, and bases) for data purposes.
C.3.2 Initiation of Counseling
C.3.2.1 Aggrieved persons who believe they have been discriminated against on the basis of sexual orientation should consult an EEO Counselor prior to filing a complaint in order to try to informally resolve the matter.
C.3.2.2 An aggrieved person should initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.
C.3.2.3 The case will be recorded as an informal complaint in iComplaints, either as a new case or converted from a contact.
C.3.3 Advising Aggrieved Individuals on their Rights and Responsibilities
C.3.3.1 The EEO Counselor shall advise the aggrieved that:
a. Sexual orientation is not protected as a basis under current Federal EEO law and EEOC regulations.
b. Cases alleging sexual orientation discrimination will be processed in accordance with this NPR.
C.3.3.2 EEO Counselors will advise aggrieved persons in writing of their rights and responsibilities, where eligible, based on MD-110, Appendix B-1, including but not limited to:
a. The right to an immediate final decision after an investigation by the Agency, if the complaint is accepted.
b. The right to elect to raise their sexual orientation issues in other forums including:
(1) The OSC (which investigates prohibited personnel practices under the Civil Service Reform Act of 1978).
(2) The MSPB (which hears appeals of certain limited adverse Agency actions, including removal actions and suspensions greater than 14 days).
(3) The Federal Sector EEO Complaint Process.
(4) NPR 3771.1, the NASA Administrative Grievance System, which addresses matters of concern to employees outside of EEO issues. Note: As of the issuance of this NPR, the NASA Grievance System does not exclude grievances based on sexual orientation.
(5) The appropriate NASA negotiated grievance process for those employees in a collective bargaining unit.
c. The duty to mitigate damages.
d. Administrative and court time frames.
e. Only the claims raised in informal counseling (or issues or claims like or related to issues or claims raised in counseling) may be alleged in a subsequent complaint filed with the Agency.
f. The duty to keep the Agency informed as to the aggrieved person's current address.
C.3.3.3 EEO Counselors will advise aggrieved persons that they may choose between participation in ADR and the counseling activities:
a. Where the aggrieved person agrees to counseling, the Counselor will conduct the final interview with the aggrieved person within 30 days of the date the aggrieved person's request for counseling, unless the aggrieved person agrees to extend the counseling period for an additional 60 days.
b. If the claim has not been resolved before the 90th day, the Counselor will issue to the aggrieved person a notice of the right to file a formal complaint.
C.3.4 Determining the Claims and Bases
C.3.4.1 The EEO Counselor plays a crucial role in the complaint process, including helping the aggrieved person in articulating his or her claim(s).
C.3.4.2 At the initial interview, the Counselor will determine what actions the Agency has taken or is taking that cause the aggrieved person to believe she or he is a victim of discrimination.
C.3.4.3 In order to process a complaint under this NPR, the aggrieved person should raise an allegation that he or she has been discriminated against on the basis of sexual orientation.
C.3.4.4 The Counselor will ascertain whether the aggrieved person believes his or her problem is the result of discrimination on additional bases, including those protected by EEO law.
a. Where the aggrieved person also alleges discrimination on EEO-protected bases, i.e., the bases of race, color, sex (including Equal Pay Act), religion, national origin, age (40 and over), disability, genetic information, or in retaliation for having participated in activity protected by the various antidiscrimination laws, the Counselor will inform the aggrieved party that the sexual orientation claims may be processed jointly with the EEO claims.
C.3.4.5 Before the Counselor begins the inquiry (see Section C.3.5 below), the requirements are as follows:
a. She or he will be certain that the claims are clearly defined and the aggrieved person agrees on how the Agency defined the claims that are to be the subject of the inquiry and any subsequent attempts at resolution, whether through counseling or ADR.
b. If a claim is like or related to a previously filed complaint, then the complaint will be amended to include those additional claim(s) if the ROI has not been completed.
c. If the claim is not like or related to a previously filed complaint, the claim will be processed as a separate complaint.
C.3.5. Conducting the Inquiry
C.3.5.1 After the Counselor has determined the bases and claims, he or she should conduct a limited inquiry. The purposes of the limited inquiry are as follows:
a. To obtain information to determine jurisdictional questions if a formal complaint is filed and is performed regardless of whether the aggrieved person subsequently chooses ADR.
b. To be used to obtain information for settlement purposes if the person chooses EEO counseling over ADR or does not have the right to elect between EEO counseling and ADR.
C.3.5.2 While the scope of the inquiry will vary based on the complexity of the claims, the inquiry is limited and not intended to substitute for the investigation required in the formal stage of the process. The process for addressing problems that may arise during the limited inquiry is as follows:
a. If the aggrieved person or Agency personnel raise objections to the scope or nature of the inquiry, the Counselor will seek guidance and assistance from the EO Director.
b. If the Counselor has problems with the inquiry, she or he will immediately notify the EO Director.
C.3.5.3 It may be appropriate to ask the ARO and other witnesses as to their knowledge of the aggrieved person's sexual orientation should this be a matter raised by the aggrieved. The guidelines and process are as follows:
a. The level of detail for sexual orientation claims at this stage of the process will be limited to having the witness disclose what they believe the aggrieved person's sexual orientation to be and when they became aware of this.
b. For example, regarding sexual orientation, the question may be framed as: "Did you know [the aggrieved person's] sexual orientation and, if so, when did you learn of this?
C.3.5.4 Prior to initiating the inquiry, the Counselor shall inform witnesses that information regarding their sexual orientation will not appear in the counseling report or otherwise be disclosed if they choose not to permit disclosure. The process is as follows:
a. Prior to initiating the inquiry, the inquiry plan shall state whether the sexual orientation of any of the witnesses is relevant to the case.
b. To the extent that such information is relevant for a particular witness, a general question to be considered is: "Do you care to disclose your sexual orientation?"
c. If the witness declines to disclose, there shall be no indication in the inquiry report of what was stated.
d. It is not necessary that the witnesses and the ARO disclose their sexual orientation for comparator purposes. However, if the information is volunteered, it shall be recorded in the report.
C.3.5.5 For claims alleging perceived sexual orientation by an ARO, it is not necessary that the aggrieved disclose his or her actual sexual orientation. However, the aggrieved shall state the perceived sexual orientation held by the ARO of the aggrieved.
C.3.6 Conclusion of Informal Counseling
C.3.6.1 If the parties have not resolved the matter through either ADR or counseling, the aggrieved person shall be informed in writing by the Counselor, not later than the 30th day after contacting the Counselor, of the right to file a discrimination complaint.
C.3.6.2 The written notice, a NRTF, shall inform the aggrieved person that counseling was completed and the aggrieved person has the following rights:
a. The right to file a formal individual complaint within 15 calendar days of receipt of the NRTF.
b. The appropriate official with whom to file a formal complaint.
c. The aggrieved person's duty to inform the Agency if the she or he retains counsel or a representative.
d. Prior to the end of the 30-day period, the aggrieved person may agree in writing with the Agency to postpone the final interview and extend the counseling period for an additional period of no more than 60 days.
e. If the matter has not been resolved before the conclusion of the agreed extension, the notice described above shall be issued. Note: The notice shall also advise the aggrieved that a complaint that is not filed within the 15-day period can be dismissed as untimely.
C.3.7 The Counselor's Report
C.3.7.1 The report shall include:
a. A precise description of the claims and the bases identified by the aggrieved person.
b. Pertinent documents gathered during the inquiry, if any.
c. A summary of interviews with relevant parties and witnesses.
d. Specific information bearing on timeliness of the counseling contact.
e. If timeliness appears to be a factor, an explanation for the delay; and an indication as to whether an attempt to resolve the complaint was made.
f. Whether or not the aggrieved has raised this same matter in other forums, and if so, which one(s), as well as the status.
C.3.7.2 ODEO shall retain a copy of the Counselor's report for availability in the event that the original Counselor's report is lost or misplaced.
C.4.1.1 Formal complaints of discrimination on the basis of sexual orientation shall be filed with ODEO.
C.4.1.2 A complaint shall be filed within 15 days of receipt of the notice referenced in Section C.3.6.2, above.
C.4.1.3 A complaint shall contain a signed statement from the aggrieved person or that person's attorney that:
a. Is sufficiently precise to identify the aggrieved person and the Agency and to describe generally the action(s) or practice(s) that form the basis(es) of the complaint.
b. Contains a telephone number and address where the complainant or the representative can be contacted (See also Section 18.104.22.168).
C.4.1.4 A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint.
C.4.2. Acknowledgement of the Formal Complaint
C.4.2.1 Immediately upon receipt of a formal complaint of discrimination, ODEO shall acknowledge receipt of the complaint in writing. The guidelines are as follows:
a. The acknowledgement letter will inform the complainant of the date on which the complaint was filed.
b. If the complaint is mailed, the date of filing will be the postmark date, not the date the Agency received the complaint.
C.4.2.2 The EEO Counselor shall:
a. Provide both ODEO and the complainant with a written report within 5 days of being advised that the complainant has filed a formal complaint.
b. Advise the complainant he or she has a right to a final decision by the AA, ODEO on claims concerning sexual orientation discrimination, but that claims of sexual orientation discrimination cannot be forwarded to the EEOC for either a hearing or an appeal.
c. Advise the complainant that he or she has the right to request reconsideration with the AA, ODEO of a final decision (see Section 2.2.4).
C.4.3 Complaint Dismissal
C.4.3.1 NPR (Section 22.214.171.124) sets out the circumstances under which the Agency may dismiss a complaint of sexual orientation discrimination. The bases outlined in Section 126.96.36.199 are the same bases for dismissal under 29 CFR Part 1614.
C.4.4.1 The Agency will conduct an impartial and appropriate investigation of the complaint within 180 days of the filing of the complaint unless the parties agree in writing to extend the time period.
C.4.4.2 When a complaint has been amended, the Agency shall complete its investigation within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint, except that the complainant may request a hearing from an administrative judge on the consolidated complaints any time after 180 days from the date of the first filed complaint. Only issues covered under EEO-protected bases will be addressed by the AJ, issues of sexual orientation discrimination covered under this NPR will be held in abeyance and addressed in the AA, ODEO's decision, within 60 days after issuance of the AJ's decision. .
C.4.4.3 Prior to initiating the investigation, the investigator shall inform witnesses that information regarding their own sexual orientation will not appear in the ROI or otherwise be disclosed if they choose not to permit disclosure.
C.4.4.4 In accordance with instructions contained in EEOC Management Directives, ODEO shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. The guidelines are as follows:
a. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.
b. ODEO may use an exchange of letters or memoranda, interrogatories, investigations, fact-finding conferences, or any other fact-finding methods that efficiently and thoroughly address the matters at issue. Given the sensitivity of these types of cases, it is preferable for the investigator to reach out first to the complainant, witnesses, and the ARO by telephone or in person, if feasible.
c. The complainant, the Agency, and any NASA employee shall produce such documentary and testimonial evidence as the Agency deems pertinent and necessary.
d. Investigators are authorized to administer oaths and statements of witnesses shall be made under oath or affirmation or, alternatively, by written statement under penalty of perjury.
e. When the complainant, the Agency, or its employees fail without good cause shown to respond fully and in timely fashion to requests for documents, records, comparative data, statistics, affidavits, or the attendance of witnesses, the AA, ODEO may exercise the discretion to take any of the following actions in appropriate circumstances:
(1) Draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information.
(2) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party.
(3) Exclude other evidence offered by the party failing to produce the requested information or witness.
(4) Issue a decision fully or partially in favor of the opposing party.
(5) Take such other actions as it deems appropriate.
C.4.4.5 Reports of Investigation (ROI). The guidelines for ROIs are as follows:
a. Within 180 days from the filing of the complaint, or where a complaint was amended, within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint, within the time period contained in a grant of reconsideration from a dismissal, or within any period of extension, ODEO shall provide the complainant with a copy of the investigative file.
b. ODEO shall also notify the complainant that, within 60 days of receipt of the investigative file, the Agency shall issue a finding as to the merits of the claim of discrimination based on sexual orientation.
c. In the event that a complaint contains both sexual orientation claims and EEO-protected bases and claims, the process is as follows:
(1) ODEO will inform the complainant of the right to request a hearing and decision from an EEOC Administrative Judge (AJ) on those EEO-protected claims by submitting a written request for a hearing directly to the applicable EEOC regional office.
(2) The complainant will send a copy of the request for a hearing to ODEO.
(3) Within 15 days of receipt of the request for a hearing, the Agency will provide a copy of the complaint file to EEOC and, if not previously provided, to the complainant.
C.4.5 EEOC Hearings in "Dual Processing" Cases
C.4.5.1 Where the complaint includes both EEO-protected bases as well as claims based on sexual orientation discrimination, those issues brought under a basis protected by the EEO laws are eligible for a hearing before the EEOC, while the issues on the bases of sexual orientation are not.
C.4.5.2 In these cases, ODEO's transmittal letter of the ROI shall reflect that the case contains evidence on issues arising under both EEO-protected bases and bases under this NPR and explain that, due to the interconnectedness of the issues, the ROI could not be bifurcated.
C.4.6 Agency Decisions
C.4.6.1 All cases are subject to a final Agency decision, in which the AA, ODEO will issue a decision addressing all claims in the complaint, including ODEO's rationale for dismissing claims, if any, and its finding on the merits of the accepted claims. The Office of the General Counsel conducts legal sufficiency reviews of all decisions.
C.4.6.2 In "dual processing" cases where the complainant requests an Agency decision on both the EEO-protected bases and the bases covered under this NPR, ODEO shall issue a single decision covering both. In such cases, the appeal rights shall specify that the complainant only has appeal rights for the EEO-protected basis(es).
C.4.7 Requests for Reconsideration to the AA, ODEO:
C.4.7.1 The complainant may request reconsideration of the Agency's decision on the sexual orientation complaint, including reconsideration of any partial dismissals.
C.4.7.2 Requests for reconsideration may be submitted if the complainant demonstrates the following:
a. New information that was unavailable during the investigation of the complaint has become available.
b. The decision of the AA, ODEO contained an error of fact or law.
C.4.7.3 Where a final decision addressed both protected EEO-bases and sexual orientation under this NPR, the reconsideration decision shall address only the sexual orientation claims. Complainants have a right to appeal the portions of the decision regarding EEO-protected bases to the Office of Federal Operations, EEOC (see Section 2.2.5).
C.4.8.1 In the event that the Agency decision finds discrimination, ODEO shall formulate a remedy that is appropriate under the circumstances. The process is as follows:
a. The Agency decision issued by the AA, ODEO, including the remedy, shall be provided to the Center EO Office and the Center Director for the Center where the complaint originated.
b. The Center EO Office shall submit a report to the AA, ODEO supporting compliance with the Agency decision within 30 days of the date that the Center received the Agency decision and remedy.
C.4.8.2 If the complainant believes that the Center has failed to comply with the Agency decision, the complainant should notify the AA, ODEO in writing, of the alleged noncompliance within 30 days of the day that he or she knew or should have known of the non-compliance. The complainant can request that the terms of the settlement agreement be specifically implemented or, alternatively, that the complaint be reinstated for further processing from the point processing ceased.
C.4.8.3 The Agency shall resolve the matter and respond to the complainant in writing. The process is as follows:
a. If the Agency has not responded to the complainant, in writing, or if the complainant is not satisfied with the Agency's attempt to resolve the matter, the complainant may request reconsideration to determine whether the Agency has complied with the terms of the settlement agreement or decision.
b. The complainant should file such a request 35 days after he or she has served the Agency with the allegations of noncompliance.
C.5.1 Policy Clarification
C.5.1.1 In information to employees and applicants for employment regarding this NPR, ODEO will include clarifying language to state that the entitlement to complaint processing in this area derives from NASA policy and not from EEO law and regulations, which govern the processing of discrimination complaints under Title VII of the Civil Rights Act and other antidiscrimination statutes.
C.5.1.2 ODEO and Center EO Offices will undertake efforts to advise employees and applicants for employment that, although complaints based on sexual orientation are processed similarly to those under the procedures found in Federal Sector EEO Regulations, they cannot be the subject of either a hearing before an AJ of the EEOC or an appeal to the EEOC's Office of Federal Operations.
C.5.2 Education and Awareness Efforts and Information Dissemination
C.5.2.1 ODEO, in collaboration with the Center EO offices, will provide management, employee, and EEO Counselor training on this NPR.
C.5.2.2 Appropriate information dissemination regarding this NPR, including contact information on filing a discrimination complaint based on sexual orientation, will be prominently placed in appropriate venues around NASA Headquarters and the NASA Centers.
(1) Incident/Alleged Discrimination. Agency is responsible for posting information regarding the EO process. The employee is responsible for seeking guidance to understand the discrimination complaints process.
(2) Employee is responsible for contacting an Equal Opportunity (EO) Counselor to file a complaint of discrimination within 45 days of the date of the incident. The EEO Counselor is responsible for informing the employee of his/her rights and responsibilities during the process.
(3) The employee can choose to have EO Counseling or to utilize ADR during the informal process.
(3a) If the employee elects EO Counseling, there is a 30-day timeframe for the counseling. The employee can agree to extend counseling an additional 60 days.
(3b) If the employee elects ADR, the informal processing period is 90 days.
(3c) The case may be resolved by ADR.
(4) If the case is not resolved by ADR, the EEO Counselor is responsible for conducting a final interview with the employee. The employee is informed of his/her right to file a formal complaint.
(5) The employee is responsible for filing a formal complaint with the Agency (ODEO) within 15 days after his/her receipt of the notice of right to file.
(6) ODEO is responsible for the receipt of the complaint.
(7) The complainant may choose to continue with formal process or elect ADR.
(7a) Where the complainant elects ADR, the case may be resolved at this stage.
(7b) The case is resolved through ADR.
(8) If the complainant continues in the formal process, ODEO is responsible for the acceptance or dismissal of the complaint.
(8a) If the complaint is dismissed, ODEO will inform the complainant.
(8b) If the complaint is accepted, the case moves to the investigative stage. (9) The Agency is responsible for investigating the complaint. All accepted complaints will be investigated.
(10) The Agency and the complainant are provided an opportunity to review the ROI to provide the Center an opportunity to settle the case, based upon review of the evidence collected.
(11) The Agency is responsible for issuing a decision within 60 days of the issuance of the ROI.
(11a) Where discrimination is found, the Agency will determine the appropriate remedy. The Center EO Director will assist in implementing and monitoring the remedial action as identified by the Agency. The Center EO Director will provide the Agency with a compliance report on the remedial action to ensure that all terms are implemented.
(11b) The employee will have 30 days to request reconsideration from the AA, ODEO.
(12) If the AA's decision on reconsideration finds discrimination, the Agency will determine the appropriate remedy (see (11a) above).
(12a) If no discrimination is found, the case is closed.
Note: in all cases, the employee, EEO Counselor, Mediator, Center, and Agency will adhere to timelines. Employees can request ADR at any stage of this complaints process.
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