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NPR 3713.2B
Effective Date: May 22, 2017
Expiration Date: December 01, 2024
Printable Format (PDF)

Subject: Alternative Dispute Resolution in Discrimination Complaints

Responsible Office: Office of Diversity and Equal Opportunity

| TOC | Preface | Chapter1 | Chapter2 | Chapter3 | Chapter4 | AppendixA | AppendixB | AppendixC | ALL |

Chapter 2. ADR and Rights under the Discrimination Complaint Process

2.1 Agency ADR Policy

2.1.1 It is NASA policy to maintain a productive work environment in which disputes can be 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. EEO ADR procedures, and an increased understanding of the most effective use of such procedures, are intended to enhance the operation of NASA's EEO ADR Program and better serve the workplace.

2.1.2 Consistent with this policy and applicable law, NASA will:

a. Ensure that its EEO ADR Program operate to facilitate creative, efficient, and sensible legal outcomes in EEO disputes;

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 NASA's workforce to deal with workplace challenges;

c. Make ADR available at both the informal and formal stages of the EEO complaint process in appropriate cases; and

d. For cases at the EEOC hearing stage and before the Office of Federal Operations, ADR may be utilized with the concurrence of the OGC/OCC.

2.2 ADR Techniques

2.2.1 At NASA, the most frequently used ADR technique is mediation. Mediation is commonly used for individual disputes but also may be adapted to the needs of multiple participants with a common dispute. However, other ADR techniques that are available and may also be used include, but are not limited to:

a. Facilitation;

b. Fact-Finding; and

c. Settlement Conference.

2.3 Notification of Rights under the Discrimination Complaint Process

2.3.1 EEO counselors shall inform the aggrieved individual of the opportunity and the benefits of participating in ADR during the EEO counseling stage, which occurs within the informal or pre-complaint stage of the process (see Chapter 3).

2.3.2 ODEO shall inform complainants of the opportunity and the benefits of participating in ADR at the formal complaint stage.

2.3.3 EO Directors and ODEO will also inform individuals that participation in the Agency EEO ADR process does not in any way diminish their rights to pursue their EEO claims under applicable laws and regulations if ADR is unsuccessful.

2.4 Voluntary Nature of ADR and Prohibition against Coercion

2.4.1 EO Directors, ADR Managers, and ODEO should ensure that EEO complainants (referred to as "aggrieved individuals" at the informal stage) and Management Representatives knowingly and voluntarily choose to engage in ADR and may choose to decline to participate in or withdraw from ADR at any time without prejudicing the outcome of the informal or formal complaint process. However, when parties agree to participate, all parties, including aggrieved individuals/complainants and their representatives, if any, should act in good faith to reach a mutually acceptable resolution. (See Section 2.6.)

2.4.2 No one, including a neutral, may force or coerce participation or a particular resolution for any party. The EO Directors, ADR Managers, and ODEO shall advise Complainants 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 complaints.

2.5 Effect of ADR Participation on Regulatory Timeframes

2.5.1 Pursuant to regulatory timeframes established under 29 CFR pt. 1614:

a. Within 30 days of the date the aggrieved individual contacted the Agency's EEO office to request counseling, the EEO Counselor shall conduct the final interview with the aggrieved individual unless the aggrieved individual 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 individual will 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 (unless the aggrieved individual has agreed to an extension of no more than 60 days).

2.5.2 However, where the aggrieved individual chooses to participate in ADR, the pre-complaint processing period will 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 will be issued.

2.5.3 Should a complainant participate in ADR efforts after a formal complaint is filed, the time period for processing the complaint may be extended by an agreement for not more than 90 days.

2.6 ADR Consideration and Offer

2.6.1 NASA advocates EEO ADR as a highly effective and cost-efficient means of resolving EEO disputes. To this end, the EEO ADR shall be utilized to the maximum extent practicable at the earliest opportunity.

2.6.2. EEO ADR shall be offered to the aggrieved and/or complainant in all cases unless there is a legitimate reason why ADR is not appropriate for a particular case. Given the Agency's strong support of ADR, deciding not to offer ADR is rare. In addition to those bases listed under 5 U.S.C. § 572(b), ADR will not be offered when:

a. An allegation that fraud, waste, or abuse was committed by either party;

b. A case where violence is alleged;

c. 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;

d. Certain types of harassment, e.g., threatened violence, stalking;

e. Instances where the complainant has filed multiple complaints in the past in which resolution efforts have been unsuccessful; or

f. Situations where options are dictated or limited by law.

2.6.3 Management's decision not to offer ADR in an individual case shall be in writing and articulate the reasons why ADR was not offered. This written justification will be submitted to the Center ADR Manager (for cases at the informal stage), or to the Agency ADR Manager (for cases at the formal stage). The Center and Agency ADR Managers are responsible for uploading the written justification to iComplaints. The Center and Agency ADR Managers should also request aggrieved individuals/complainants to provide their reason(s) if they decide not to participate in ADR and should be noted in iComplaints. The information will be used to determine what, if any, barriers to utilizing ADR at the Centers and NASA-wide and should not be disclosed to those who do not have a need to know.

2.7 Agency Officials Participation

2.7.1 In accordance with EEOC MD 110, in the Federal sector EEO process the "parties" are the Agency and the aggrieved/complainant. As such, the manager who was named in the EEO complaint or RMO does not qualify as a party because that person is not the statutorily proper defendant in the Federal EEO process. Accordingly, once the Agency decides to offer EEO ADR, the RMO has a duty to cooperate, like any witness, in the EEO ADR process, but may not be the agency official that has settlement authority.

2.7.2 The Agency's or Center Management's decision to participate in ADR requires managers to act in good faith to reach a mutually acceptable resolution. However, the participating Management Representative shall have the option of discontinuing ADR efforts, after consultation with appropriate management officials, i.e., EEO ADR Management Team, Settlement Official, ADR Manager, if the management representative determines an acceptable legal resolution cannot be achieved.

2.8 "Class Actions" and Multi-Party Disputes

In instances involving class actions or multi-party disputes and EEO ADR is desired and deemed appropriate, ODEO shall make arrangements for EEO ADR, in collaboration with the Center.

2.9 Confidentiality

2.9.1 The confidentiality of ADR is required by EEOC and the Administrative Dispute Resolution Act (ADRA) of 1996, as amended (with certain limitations discussed in Sec. 2.9.2, below). Confidentiality is critical to parties' trust and their uninhibited, good faith participation in ADR. See also Appendix C.4, "Agreement to Mediate."

2.9.2 All parties, i.e., aggrieved/complainant and their representative, if any, Management Official, Settlement Official, neutral, to the ADR shall abide with the confidentiality provisions of ADR. The confidentiality provisions of the ADRA of 1996, as amended, vary depending on such things as the type of EEO ADR procedure used, the number of parties participating, and the issues involved. ADRA, 5 U.S.C. § 574. Generally, the dispute resolution communication, as defined by ADRA, 5 U.S.C. § 571(5), or any communication provided in confidence to a neutral will 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, ODEO, ADR Managers, EEO staff, and neutrals, will seek the advice of the OGC/OCC (if at a NASA Center or component facility) or the Counsel to the Inspector General (IG) (if in a matter arising in the Office of the Inspector General (OIG)) before taking action to release information that may be considered "confidential."

2.10 Representation

2.10.1 ADR Managers shall advise aggrieved individuals or complainants that while the purpose of EEO ADR is to allow the parties to fashion their own resolution to a dispute, all parties have the right to representation during the ADR process.

2.10.2 ADR Managers shall ensure (or require neutrals to ensure) that representatives are informed about EEO ADR and that they understand that in EEO, parties are encouraged to participate fully and have the right to speak for themselves.

2.10.3 ADR Managers shall ensure that Management Representatives are advised that they have the right to, and should consult with, the OGC, the OCC, or the Counsel to the IG (in a matter arising in the OIG).

2.10.4 If an aggrieved individual or complainant is represented by an attorney, the EO Director and/or ADR Manager will notify the legal office at the earliest possible opportunity and the OGC, the OCC, or Counsel to the IG for OIG cases will decide if there will be legal participation in the ADR.

2.11 Reasonable Accommodation During EEO ADR

2.11.1 EO Directors and ADR Managers shall ensure that any party to the EEO ADR with a disability who wishes to participate in EEO ADR is provided with a reasonable accommodation if requested, in accordance with NPD 3713.8, Provision of Reasonable Accommodation for Individuals with Disabilities and NPR 3713.1, Reasonable Accommodations Procedures. A few examples of reasonable accommodations may include:

a. A mobility-impaired person may need an ADR room that is wheelchair accessible;

b. A 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.

2.12 EEO ADR and Contract Employees and Applicants

2.12.1 While NASA's EEO complaint process is generally unavailable to non-NASA employees, each Center EO Director or ADR Manager, in consultation with the OGC, OCC, or Counsel for IG for OIG cases, may offer ADR in EEO cases involving NASA applicants and contract employees (contingent workers) if deemed Federal employees for purposes of EEO.

| TOC | Preface | Chapter1 | Chapter2 | Chapter3 | Chapter4 | AppendixA | AppendixB | AppendixC | ALL |
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