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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 3. ADR Informal Process

The NASA Centers administer the ADR Program at the informal stage of the EEO complaints process, with oversight from the Agency's ODEO. This chapter lays out the EEO ADR process at the informal stage.

3.2 Determining Appropriateness of Informal Complaint for ADR

3.2.1 The EEO Office is required to provide the aggrieved individual information on EEO ADR in order for the aggrieved individual to make an informed decision between EEO ADR and traditional counseling. At a minimum, the EEO Office shall ensure the aggrieved individual is informed of the various steps in the EEO informal complaints process, to include EEO ADR, the benefits of resolving the dispute through the EEO ADR process, and the effects electing to engage in EEO ADR will have on the processing of their claims.

3.2.2 ADR will be utilized to the maximum extent practicable at the earliest opportunity.

3.2.3 When ADR is not offered, a written justification shall be provided pursuant to 2.6.3.

3.3 Arranging for ADR

3.3.1 While EEO ADR may be productive at any time during the course of an EEO dispute, EEO ADR should generally be attempted as soon as reasonably possible after the alleged discriminatory event, once an EEO Counselor has been contacted and an election is made to participate in EEO ADR.

3.3.2 There may be time limits imposed by external processes (i.e., formal EEO complaints, appeals to the Merit Systems Protection Board, Office of Special Counsel, negotiated and administrative grievances). While it is primarily the responsibility of affected parties to be aware of applicable filing deadlines and procedures, the EO Director and/or ADR Manager shall take reasonable steps to alert aggrieved individuals to the possibility of such time limits. Participating in ADR does not toll those time limits.

3.3.3. In instances where an ADR is conducted, the following provisions also apply: a. The ADR Manager shall obtain the services of neutrals from sources external to the organization where the dispute arose to ensure there is no conflict of interest, e.g., Shared Neutral Program, other agencies, contract mediators, or NASA certified mediators; b. The ADR Manager shall identify a neutral and provide the neutral with the names of the parties to determine whether the neutral has a potential or actual conflict of interest. The ADR Manager is responsible for ensuring there is no perceived or actual conflict interest between the parties and the neutral selected;

c. Neutrals in training are allowed to observe ADR or co-mediate at the discretion of the ADR Manager and with the advance consent of the parties;

d. The ADR Manager shall contact all the parties to the ADR and provide them with the name of the neutral(s);

e. The parties may request another neutral if they believe there is a potential or actual conflict of interest. Justification should be included with the request. The ADR Manager will review the request and justification and make a decision regarding whether to grant or deny the request;

f. The ADR Manager shall provide the neutral with all pertinent documents needed to conduct the ADR;

g. The neutral shall contact the ADR Manager to assist in coordinating the ADR; and

h. The ADR Manager shall serve as the neutral's point of contact for onsite resources and support, such as logistical arrangements and access to the Center.

3.4 Monitoring the Progress of the ADR

3.4.1 The ADR Manager, if other than the EO Director, shall keep the EO Director apprised as to the status of the ADR.

3.4.2 The ADR Manager shall, in consultation with the EO Director, the neutral, and management, determine whether the ADR should be terminated, for example, due to unreasonable delays or other evidence of lack of good faith by either party.

3.4.3 The aggrieved individual may also terminate the ADR and return to the EEO process at any time.

3.5 Settlement

3.5.1 If a settlement is reached through ADR, the agreement will be reduced to writing. If the aggrieved individual has more than one case and some of those cases are pending at the EEOC Administrative Judge (AJ) level, the Agency Representative will draft the settlement agreement. The agreement has to be signed by both parties, aggrieved and Settlement Official, to verify they have the same understanding of the terms of the resolution. Any agreement knowingly and voluntarily agreed upon by the parties is binding upon both parties.

3.5.2 All settlement agreements shall state clearly the terms of the agreement that are enforceable, quantifiable, measurable, and specific.

3.5.3 The OGC/OCC, or the Counsel to the IG for OIG cases, shall draft and/or review the agreement for concurrence prior to obtaining all necessary signatures.

3.5.4 The EEO Director, as a member of the EEO ADR Management Team, will be provided an opportunity to consult on settlement agreements before finalization.

3.5.5 Center EEO Directors shall afford the aggrieved individual a reasonable opportunity to review the draft agreement and consult with a legal or other representative(s) prior to finalizing the agreement.

3.5.6 The signed agreement shall contain the procedures available under 29 C.F.R §1614.504, in the event that the Agency fails to comply with the terms of the resolution:

If [insert name of aggrieved individual] believes that NASA has not complied with the terms of this agreement, she/he may request that the terms be specifically implemented, or alternatively, that the complaint be reinstated for further processing at the point ceased, in accordance with the procedures set forth in 29 C.F.R. §1614.504. Any such request shall be made within thirty (30) calendar days of the date she/he knew or should have known of the noncompliance.

The notice of noncompliance shall be forwarded to the DIRECTOR, COMPLAINTS MANAGEMENT DIVISION, OFFICE OF DIVERSITY AND EQUAL OPPORTUNITY, NASA HEADQUARTERS, WASHINGTON, DC 20546, with an explanation as to why she/he believes that the agreement has not been carried out.

3.5.7 If the complaint contains either an allegation of age discrimination or if the complainant is 40 years old or older even when individual has not raised an age claim, the settlement agreement shall contain the appropriate settlement provisions required by the Older Workers Benefit Protection Act (OWBPA).

3.5.8 The Centers shall, wherever possible, seek global settlement, i.e., multiple cases involving the same aggrieved individual, through the EEO ADR process.

3.5.9 The EO Director or ADR Manager shall send a signed and dated copy of the settlement agreement to the Director, ODEO Complaints Management Division (CMD) within five business days of the execution of the settlement agreement.

3.5.10 The Center EEO Office shall be responsible for maintaining the original copy of the settlement agreement and for providing signed copies to ODEO and the OGC/OCC.

3.5.11 Once the agreement is signed by all parties, the EO Director shall issue the aggrieved individual a notice closing the complaint. However, if the agreement includes cases at the formal stage, ODEO will be responsible for issuing the close-out letter.

3.5.12 The EO Director or the ADR Manager shall be responsible for ensuring that the terms of the ADR settlement agreement are carried out in coordination with appropriate offices, such as the OGC/OCC, the OCHCO, and the Human Resources Office (HRO).

3.5.13. The EO Director shall report compliance of the terms of the agreement to the Director of Complaints Management Division 30 days from the date on which compliance of the terms was stipulated in the agreement. The form, Reporting on Compliance with EEO Settlement Agreement, Appendix C, is to be used when reporting compliance.

3.5.14. All documentation to support compliance is required to be submitted with the compliance report. See Appendix C for guidance.

3.6 When ADR Does Not Result in Settlement

3.6.1 If a resolution cannot be achieved, the neutral will conclude the EEO ADR and notify the ADR Manager, who advises the EO Director.

3.6.2 The aggrieved individual shall be referred back to the EEO Counselor for a final interview and given her/his notice of a right to file a formal EEO complaint.

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