Effective Date: May 22, 2017
Expiration Date: December 01, 2024
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1.1.1 The Associate Administrator (AA) for Diversity and Equal Opportunity (EO) has the authority to develop and administer effective and efficient Equal Employment Opportunity (EEO) Alternative Dispute Resolution (ADR) programs and procedures consistent with existing laws, regulations, Agency directives, and guidance.
1.1.2 Under NASA's policy pertaining to discrimination complaints, the AA, Office Diversity and Equal Opportunity (ODEO) is responsible for:
a. The administration of an effective and efficient discrimination complaint program and ADR procedures regarding EEO matters in accordance with Federal sector EEO laws, regulations, and guidance; and
b. Oversight of the informal ("pre-complaint") stage of the discrimination complaint process and direct responsibility for the formal complaint process.
1.1.3 The AA, ODEO is responsible for ensuring that there is an EEO ADR process in place at each Center and exercises oversight over the Agency and Center EEO ADR procedures.
1.1.4 The AA, ODEO is responsible for ensuring that the EEO ADR core principles are incorporated into the Agency's EEO ADR Program. Those principles are as follows:
a. Fairness. The EEO ADR Program shall be fair to the participants, both in perception and reality, and include the following critical elements: Voluntariness, Neutrality, Confidentiality, and Enforceability;
b. Flexibility. The EEO ADR program must be flexible enough to respond to the variety of situations at each Center and changing circumstances that could not have been anticipated or predicted at the time the program was initially implemented;
c. Training. Appropriate training and education shall be provided at regular intervals on EEO ADR to its employees, managers and supervisors, neutrals, and other persons protected under the applicable laws; and
d. Evaluation. To be successful and effective, the EEO ADR Program shall be evaluated regularly to determine whether the EEO ADR program has achieved its goals and best practices to make the EEO ADR Program more efficient and achieve better results.
1.1.5 The AA, ODEO designates the Director, Complaints Management Division, to oversee the operation of the Agency EEO ADR Program.
1.1.6 The AA, ODEO is responsible for ensuring all managers and supervisors receive appropriate training and education on EEO ADR at regular intervals in accordance with the Management Directive (MD) 110.
1.1.7 The AA, ODEO is responsible for setting Agency-wide policy and guidance prohibiting actual or apparent conflicts of interests in the EEO ADR process.
1.2.1 The Director, Complaints Management Division, shall:
a. Provide oversight of the day-to-day operations of the Agency EEO ADR Program;
b. Provide oversight of and operational guidance to the Center EEO ADR Program;
c. Appoint and supervise the Agency ADR Program Manager; and
d. Establish a cadre of NASA mediators who can respond to the Agency's immediate ADR needs and/or mediate highly-sensitive cases. Ensure that all NASA mediators have the appropriate certification.
1.3.1 The Agency ADR Program Manager (ADR Program Manager) is appointed by and reports to the Director, Complaints Management Division, ODEO.
1.3.2 The ADR Program Manager administers the Agency's EEO ADR Program. In this regard the ADR Program Manager shall:
a. Provide policy and operational guidance for the Center ADR Program;
b. Develop Agency-wide training and provide technical assistance to the Centers;
c. Provide informational materials on EEO ADR for dissemination Agency wide;
d. Prepare the Agency-wide EEO ADR Report, when required by external oversight agencies, i.e., EEOC, Congress, InterAgency ADR Working Group (IADRWG), etc;
e. In collaboration with Center ADR Program Managers conduct a periodic review of Agency and Center EEO ADR Program to determine effectiveness, challenges, promising practices, barriers with the goal of increasing utilization of EEO ADR across NASA; and
f. Ensure ADR information is appropriately and timely entered in iComplaints. Track status of ADR utilization across the Agency, i.e., offer, participation, and settlement rates.
1.3.3 The ADR Program Manager is responsible for the day-to-day operation of the EEO ADR Program in the formal stage of the EEO complaints process. In this regard the ADR Program Manager shall:
a. Develop marketing and promotional materials for ADR for dissemination Agency wide;
b. Consult and coordinate with Centers regarding the determination of whether to offer mediation at the formal stage of the EEO complaints process;
c. Arrange for ADR at the formal stage of the EEO complaints process, including identifying a neutral, providing the neutral with the names of the parties to determine whether the neutral has a potential or actual conflict of interest, contacting all the parties to the ADR and providing them with the name of the neutral(s), and providing the neutral with all pertinent documents needed to conduct the ADR;
d. Determine, in consultation with the Center ADR Manager and the neutral, whether ADR should be terminated, where there is unreasonable delay or other evidence of lack of good faith on the part of either party; and
e. Develop ADR training for Agency managers and supervisors, as well as training for employees in accordance with MD 110.
1.4.1 The Center Director, including the Executive Director of the NASA Shared Services Center and the Executive Director of the Office of Headquarters Operations, is responsible for ensuring the effective functioning of the Center's EEO ADR Program at the informal stage of the discrimination complaint process and for ensuring appropriate coordination with ODEO at both the informal and formal stages. The Center Director or designee shall:
a. Ensure that the procedures set forth in this NPR pertaining to EEO ADR at the Center level are carried out; b. Assign the responsibility to designate a Center ADR Program Manager to the Center EO Director;
c, Receive regular reports from the Center EO Director/ADR Program Manager on the functioning of the Center EEO ADR Program;
d. Establish an EEO ADR Management Team (see Sec. 1.7, below);
e. Designate a management official in cases where ADR is utilized; and
f. Designate a Settlement Official in cases where ADR is utilized.
1.4.2 Center EEO Directors shall be required to update and submit Center EEO ADR implementation procedures along with any related informational materials to ODEO for concurrence within 90 days of the effective date of this NPR, consistent with P.5 (a), above. Any future modifications to the procedures will be submitted to ODEO for concurrence prior to implementation.
1.5.1 Each NASA Center EO Director (EO Director) shall:
a. Ensure the fair and efficient functioning of the informal EEO complaints process in cooperation and coordination with ODEO and the Center Director;
b. Manage and direct the informal complaint process and advise employees about all aspects of the EEO process, including ADR;
c. Designate a Center ADR Program Manager;
d. Identify cases appropriate for ADR in the informal complaint process in consultation with Center EEO ADR Management Team; and
e. Assist ODEO in coordinating ADR for formal complaint cases identified as appropriate for ADR.
1.6.1 Each Center EEO ADR Manager (ADR Manager) is appointed by the Center EO Director. If a Center Director appoints an EO Director to this role, the EO Director serves as the ADR Manager and may delegate the day-to-day functions.
1.6.2 The ADR Manager shall:
a. Work closely with Center management and the Center's EEO Office to administer the Center's EEO ADR process, including carrying out specific roles and responsibilities pertaining to EEO ADR at the informal and formal stages of the EEO complaints process as identified in this NPR (Chapters 2, 3, and 4);
b. Identify EEO cases appropriate for ADR in the informal complaint process in consultation with the Center EO Director and Center EEO ADR Management Team;
c. Arrange for ADR, when appropriate, at the informal stage of the process consistent with this NPR, Chapter 3, and utilize the appropriate templates in scheduling ADR. See Appendix C;
d. Develop EEO ADR procedures for the informal stage of the discrimination complaint process that are consistent with Agency-wide EEO ADR policy, as well as the needs of the particular Center;
e. Develop or utilize existing NASA communications materials to promote and advocate the use of the EEO ADR process to resolve disputes;
f. Ensure that Center managers, supervisors, and employees are appropriately trained on the Agency and Center EEO ADR procedures, including periodic training for those who may serve as management and/or settlement officials, or members of the EEO ADR Management Team;
g. Ensure ADR training developed by the Center is submitted to the Agency ADR Program Manager for review prior to implementation to ensure all training is consistent with and meets ODEO's training requirements;
h. Hold Pre-ADR meetings with the parties to address any questions and or clarify the roles of each participant;
i. Coordinate with the Complaints Management Division, ODEO, in its administration of the EEO ADR process at the informal and formal stage of the discrimination complaints process (see Chapters 3 and 4);
j. Ensure ADR information is appropriately and timely entered in iComplaints. Track status of ADR utilization across the Center, i.e., offer, participation, and settlement rates;
k. Report annually on the Center EEO ADR process to the AA for ODEO in accordance with P.5 of this NPR (Measurement/Verification);
l. Utilize templates contained in Appendix C to ensure consistency in the ADR process; and
1.7.1 Each Center shall have an EEO ADR Management Team comprised of representatives from the Center's EEO Office, the OGC/OCC, and the OCHCO/HRO. Other Center officials may be represented on the EEO ADR Management Team as deemed appropriate.
1.7.2 The EEO ADR Management Team shall:
a. Meet regularly to engage in open discussions regarding the nature of existing EEO complaints, and the most effective ADR methodology to address individual cases, where the aggrieved individual has elected to participate in ADR. The ADR Manager will use her/his discretion in sharing only the EEO case information necessary for the EEO ADR Management Team to make a determination regarding management's willingness to engage in ADR and shall not disclose the names of aggrieved persons or the details of cases where the aggrieved has chosen to remain anonymous, or in cases where the aggrieved has not expressed an interest in ADR;
b. Assist in the identification of a Management Representative and Settlement Official;
c. Assist the EO Director and/or ADR Manager in evaluating cases for ADR and obtaining management buy-in and support;
d. Serve in an advisory role to management regarding problems identified in an organization;
e. Explore resolution options dealing with potential or actual disputes of an individual or organizational nature; and
f. Ensure that prior to entering the mediation, the team discusses the parameters of settlement to identify resolution options that are enforceable, quantifiable, measurable, and specific.
1.8.1 The Management Representative is selected by the Center Director or her/his designee and serves as the management official where ADR is utilized in a particular case.
1.8.2 The Management Representative has the authority and responsibility to negotiate in good faith on behalf of management and the option of discontinuing ADR after consultation with the appropriate officials (i.e., Settlement Official and any other persons deemed appropriate for consultation by the Settlement Official) if the management representative has determined there is no resolution acceptable to the parties.
1.8.3 The Management Representative has immediate access to a person delegated with authority to approve or enter into a settlement agreement binding on the Center and Agency (see also "Settlement Official," Sec. 1.9, below). The Management Representative and the Settlement Official may be the same individual.
1.8.4 Responsible management officials (RMO) or Agency officials directly involved in the case or has been identified as allegedly being responsible for the matters raised by the aggrieved individual (informal stage) or Complainant (formal stage) shall not serve as the person with settlement authority, i.e., where the RMO is serving as the Management Representative, she/he cannot also serve as the Settlement Official.
1.8.5 In addition, where the aggrieved individual or Complainant so requests, the Management Representative shall not be the RMO.
1.8.6 Unless the complaint is directly against these individuals, the Management Representative shall not be a member of the EEO ADR Management Team or a representative from the Center's legal or human resources offices.
1.9.1 The Settlement Official shall be selected by the Center Director or her/his designee.
1.9.2 Each Center shall designate a Settlement Official in advance of ADR or have a standing Settlement Official.
1.9.3 The Settlement Official shall be a senior Agency or Center representative who has been delegated authority to enter into an agreement that is binding on the Center and Agency.
1.9.4 While the Settlement Official may be the Management Representative, consistent with Section 1.8 above, no RMO may act as the Settlement Official; nor will the Settlement Official be the EO Director, EEO ADR Management Team member, or a representative from the Center's legal office.
1.9.5 It is highly recommended that the Center Directors establish a cadre of officials who will be assigned the settlement authority function on a rotational basis. The officials chosen to be members of the cadre are independent of any control by either party, in both perception and reality. The settlement official shall have no official, financial, or personal conflict of interest with respect to the issues in the complaint.
1.10.1 To be effective, the EEO ADR process shall be impartial and independent of any control by either party. Using a neutral third party ensures this impartiality.
1.10.2 As a matter of policy, the Agency ADR Program Manager or Center ADR Managers shall obtain neutrals from sources external to the organization where the dispute arose, e.g., Shared Neutral Program, other agencies, contract mediators, or certified NASA mediators.
1.10.3 Although not prohibited under MD 110, using an EEO Counselor as a neutral is not recommended due in part to a concern that a complainant may be confused as to the role being played by the Counselor. If a Center chooses its EEO Counselor, she/he shall not serve as a neutral in a complaint for which she/he has or will provide counseling.
1.10.4 Each neutral used by NASA, including NASA personnel, shall be thoroughly trained in ADR principles and dispute resolution techniques and meet EEOC's qualification requirements. See EEOC MD-110, Chapter 3, Section V (B), which discusses qualifications of neutrals.
1.10.5 Upon request, parties are provided with information on the neutral that the Agency or Center selects for services in a given matter, and parties have the right to request a different neutral, for example, where there is a concern raised regarding a conflict of interest. However, the ultimate decision regarding whether or not to replace a neutral is made by the Agency ADR Managers, if the case is at the formal stage, or the Center ADR Manager for informal cases.
1.11.1 Each NASA OGC/OCC shall:
a. Identify cases suitable for ADR at the informal and formal stages of the EEO Complaint process, in consultation with the Center EEO ADR Management Team;
b. Participate on EEO ADR Management Team discussion and work with management officials and settlement officials to identify resolution options that are legally enforceable. Given the Agency's strong preference of global settlements, identify cases that are suitable for global settlement;
c. Represent management in the ADR proceedings, when applicable;
d. Draft and/or review the settlement agreement prior to obtaining all necessary signatures to ensure that the terms are legally enforceable;
e. Provide a copy of the signed settlement agreement to the Center EEO Director/Agency ADR Program Manager; and
f. Ensure that the terms of the signed settlement agreement have been met and provide that information to the Center EEO Director for compliance purposes.
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