|NASA Headquarters' Directives|
Effective Date: January 05, 2010
Expiration Date: June 05, 2015
Responsible Office: LM1
|NASA Headquarters Alternative Dispute Resolution in Matters Pertaining to Discrimination Complaints Under 29 C.F.R. Part 1614|
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CHAPTER 2. ADR and Rights Under the Discrimination Complaint Process
2.1 ADR Defined
2.1.1 A method of resolving workplace disputes without a legal determination by a court or an administrative body. ADR is any procedure used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, fact-finding, mini-trials, arbitration, and use of ombudspersons, or any combination thereof.
2.1.2 At NASA, the most frequently used form of ADR is mediation. Mediation is commonly used for individual disputes but also may be adapted to the needs of multiple participants with a common dispute. Mediation is a process that uses a neutral mediator, who has no decision-making authority. The mediator or neutral as defined by the ADRA is "an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy."The mediator facilitates discussions between the parties to a dispute in an effort to reach a mutually acceptable resolution.
2.2 Headquarters ADR Policy
2.2.1 It is NASA HQ policy to maintain a productive work environment in which disputes are settled quickly by voluntary use of ADR. Utilization of EEO ADR procedures, when practicable and appropriate, help to resolve disputes at the earliest stage feasible, by the fastest and least expensive method possible, and at the lowest organizational level. HQ EEO ADR procedures, and an increased understanding of the most effective use of such procedures, are intended to enhance the operation of NASA HQ's EEO ADR programs and better serve the workplace.
2.2.2 Consistent with this policy and applicable law, the Executive Director for HQ Operations shall:
a. Ensure that its EEO ADR programs operate to facilitate creative, efficient, and sensible outcomes in EEO disputes; and
b. Make maximum appropriate use of ADR to avoid EEO workplace disputes, effectively resolve conflicts when they arise, and foster positive and creative ways for HQ's workforce to deal with workplace challenges.
2.3 Notification of Rights Under the Discrimination Complaint Process
2.3.1 Individuals shall be informed of their right to participate in ADR during the EEO counseling process, which occurs within the informal or precomplaint stage of the process, when ADR is deemed appropriate (see Chapter 3, Sec. 3.2). Consistent with these requirements, the HQ EO Counselor shall inform individuals of these rights at the precomplaint stage.
2.3.2 ODEO shall inform them of these rights at the formal complaint stage.
2.3.3 The ADR Manager and ODEO shall also inform individuals that participation in the HQ EEO ADR process shall not in any way diminish their rights to pursue claims under applicable laws and regulations, if ADR is unsuccessful.
2.4 Voluntary Nature of ADR and Prohibition Against Coercion
2.4.1 The HQ EO Director, the ADR Manager and ODEO shall ensure that EEO complainants (referred to as "aggrieved individuals" at the informal stage) knowingly and voluntarily choose to engage in ADR and may choose to withdraw from ADR at any time without prejudicing the outcome of the informal or formal complaint process.
2.4.2 No one, including a neutral, may force or coerce participation or a particular resolution for any party. Complainants also shall be informed that they may not lose their right to pursue claims if ADR does not resolve the matter provided they continue to meet the regulatory timeframes for pursuing their complaint.
2.5 Effect of ADR Participation on Precomplaint Regulatory Timeframes
2.5.1 Pursuant to regulatory timeframes established under 29 C.F.R. Part 1614:
a. Within 30 days of the date the aggrieved person contacted the HQ EEO office to request counseling, the EEO Counselor shall conduct the final interview with the aggrieved person unless the aggrieved person agrees 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; and
b. The aggrieved person shall be informed in writing by the Counselor, not later than the thirtieth day after contacting the Counselor, of the right to file a discrimination complaint (unless the aggrieved person has agreed to an extension of no more than 60 days).
2.5.2 However, where the aggrieved person chooses to participate in ADR, the precomplaint processing period shall be extended for up to 90 days. If the claim has not been resolved before the 90th day, the notice of the right to file a discrimination complaint shall be issued.
2.6 Management Participation
2.6.1 Management's decision to participate in ADR requires managers to act in good faith to resolve the complaint. However, the participating management representative shall have the option of discontinuing ADR after consultation with or on behalf of management if the representative determines that no option for resolution acceptable to NASA HQ can be developed.
2.7 Instances Where EEO ADR May be Inappropriate
2.7.1 There are instances in which EEO ADR may not be appropriate or feasible. Accordingly, the HQ EO Director, in consultation with a representative from the OGC, the HRMD and/or other appropriate management officials, or the Counsel to the Inspector General and the OIG Human Resources Officer (if in a matter arising in the OIG), shall determine whether a particular case is appropriate for EEO ADR.
2.7.2 Instances in which EEO ADR may be inappropriate include:
a. An allegation that fraud, waste or abuse was committed by either party;
b. A case where definitive or authoritative resolution of the matter is required for precedential value;
c. A case where violence is alleged;
d. Evidence that one of the parties is acting in bad faith, e.g., when one party mainly seeks delay or appears to be using the process for discovery;
e. Certain types of harassment, e.g. stalking;
f. Instances where the complainant has filed multiple complaints in the past in which resolution efforts have been unsuccessful;
g. Situations where options are dictated or limited by law. (e.g., reinstating a NASA employee - a decision to reinstate an employee where the final decision was made by another Agency such as: the Office of Personnel Management and the Merit Systems Protection Board); or
h. A case where the individual has not alleged discrimination.
2.8 Class Actions and Multi-Party Disputes
2.8.1 In instances involving class actions or multi-party disputes and EEO ADR is desired and deemed appropriate, the HQ ADR Manager shall notify the HQ EO Director and the ADR Program Manager and collaborate with ODEO to make arrangements for EEO ADR.
2.9.1 The confidentiality of mediation proceedings is required by EEOC and the Administrative Dispute Resolution Act (ADRA) of 1996 (with certain limitations discussed in Sec. 2.9.2, below). Confidentiality is critical to parties' trust and their uninhibited, good faith participation in ADR. If any HQ employee or manager seems particularly concerned about confidentiality, the HQ ADR Manager, the Agency ADR Program Manager and/or the neutral shall explore further what the issue is and determine what specific assurances are reasonably available to deal with the concerns. See also App. D, õ D.2, "Agreement to Mediate Form."
2.9.2 Confidentiality is a critical component of ADR. The confidentiality provisions of the ADRA of 1996, as amended, vary depending on such things as the type of ADR procedure used, the number of parties participating and the issues involved. ADRA 5 USC õ 574. Generally, the dispute resolution communication as defined by 5 USC õ 571(5), or any communication provided in confidence to a neutral shall not be disclosed.
2.9.3 There are exceptions to this rule where disclosure would be permitted or required by law. In order to determine whether information should be disclosed or withheld, NASA HQ Officials will seek the advice of the OGC or the Inspector General (if in a matter arising in the OIG) before taking action to release or deny information that may be considered "confidential."
2.10.1 The HQ EO Director or HQ ADR Manager shall advise aggrieved individuals that they have the right to be represented during EEO ADR, providing the representative does not present a conflict of interest, but that representation is not required for participation in EEO ADR. The HQ ADR Manager reserves the right to make the determination as to whether there is potential conflict of interest. For example, a conflict of interest may exist depending upon where the representative works (e.g. the HQ EEO Office). In the event a determination has been made that there is a potential conflict of interest, the HQ ADR Manager shall notify the aggrieved individual of the determination, and provide the aggrieved individual with an opportunity to select a different representative.
2.10.2 The HQ EO Director or HQ ADR Manager shall ensure (or require neutrals to ensure) that representatives are informed about EEO ADR and that they understand that in EEO ADR parties are encouraged to participate fully and have the right to speak for themselves.
2.10.3 The HQ EO Director or HQ ADR Manager shall ensure that management representatives are advised that they have the right to, and should consult with the OGC or the Counsel to the Inspector General (if in a matter arising in the OIG).
2.10.4 If an individual is represented by an attorney, the OGC or the Counsel to the Inspector General (if in a matter arising in the OIG) shall be notified by the HQ EO Director and/or HQ ADR Manager and will decide whether there will be Agency legal participation in the mediation.
2.11 Reasonable Accommodation during EEO ADR and in Implementation of Settlement Agreements for Disabled Employees
2.11.1 The HQ EO Director and HQ ADR Manager shall ensure that any disabled party to the mediation is provided with a reasonable accommodation if requested. Examples:
a. A mobility-impaired person may need a mediation room that is wheelchair accessible;
b. A deaf or hearing-impaired person may need a sign language interpreter or assistive device; and
c. A person taking medication for a psychiatric disability may need drinking water or frequent breaks.
2.11.2 The HQ EO Director or HQ ADR Manager shall ensure that settlement agreements reached in EEO ADR take into consideration and provide for reasonable accommodations as appropriate, consistent with NASA Policy and procedures on the provision of reasonable accommodation.
2.12 EEO ADR and Contract Employees
2.12.1 While NASA HQ's EO complaint process is generally unavailable to non-NASA employees, HQ shall reserve the right, at its discretion, to offer ADR in actual or potential EO cases involving non-employees and NASA HQ employees. The General Counsel or the Inspector General (if in a matter arising in the OIG) shall be consulted about the use of EEO ADR under these circumstances.