Subject: Alternative Dispute Resolution in Discrimination Complaints

Responsible Office: Office of Diversity and Equal Opportunity

Chapter 4. ADR Formal Process

The Agency ODEO administers the Agency EEO ADR Program and the formal stage of the EEO complaints process. This chapter lays out the EEO ADR process at the formal stage.

4.2 Determining Appropriateness of Complaint for ADR

4.2.1 During the acceptance/dismissal stage of the complaint process or at any point in the process thereafter, the Agency ADR Program Manager shall coordinate with the Center EO Director regarding the ADR offer at the formal stage of the process.

4.2.2 Agency ADR Program Manager, in consultation with the EO Director and/or the Center ADR Manager (ADR Manager), Center Management, and/or OGC shall determine whether the formal complaint is appropriate for EEO ADR.

4.2.3 The Agency ADR Program Manager will provide the complainant information on EEO ADR in order for this individual to make an informed decision between EEO ADR and pursuing her/his complaint through the traditional EEO complaint process. At a minimum, the Agency ADR Program Manager should ensure the complainant is informed of the various steps in the EEO formal complaints process, to include EEO ADR, and the benefits of resolving the dispute through the EEO ADR process.

4.2.4 EEO ADR shall be utilized to the maximum extent practicable at the earliest opportunity.

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

4.3 Arranging for ADR

4.3.1 The Agency ADR Program Manager shall identify a neutral and provide the neutral with the names of the parties to determine whether there is a potential or actual conflict of interest. The Agency ADR Program Manager is responsible for ensuring there is no perceived or real conflict interest between all or either parties and the neutral selected.

4.3.2 The parties may request another neutral if they believe there is a potential or real conflict of interest. The requesting party is expected to provide a justification for the change. The Agency ADR Program Manager will review the request and justification and will make a decision accordingly.

4.3.3 The Agency ADR Program Manager shall ensure all parties to the ADR have the necessary contact information, to include the name of the neutrals(s) assigned to the case.

4.3.4 The Agency ADR Program Manager will provide the neutral with all pertinent documents needed to conduct the EEO ADR. The neutral will contact the Center ADR Manager to assist in coordinating the ADR.

4.3.5 The Center 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.

4.3.6 There may be time limits imposed by external processes (i.e., EEO formal complaint filing, appeals to the Merit Systems Protection Board, Office of Special Counsel, negotiated and administrative grievance processes). While it is primarily the responsibility of affected parties to be aware of applicable filing deadlines and procedures, the Agency ADR Program Manager shall take reasonable steps to alert the complainant to the possibility of such limits. Participating in ADR does not toll those time limits.

4.4 Monitoring the Progress of the ADR

4.4.1 The Center ADR Manager, if other than the EO Director, shall keep the Agency ADR Program Manager apprised as to the status of the ADR.

4.4.2 The Agency ADR Program Manager shall, in consultation with the Center ADR Manager or EO Director and the mediator, determine whether the EEO ADR should be terminated due to unreasonable delays or other evidence of lack of good faith by either party.

4.4.3 The complainant may terminate the EEO ADR, at any time, and case processing will resume at the point where the processing ceased prior to EEO ADR being elected, unless complainant elects to withdraw the complaint.

4.5 Settlement

4.5.1 If a settlement is reached through EEO ADR, the agreement shall be reduced to writing. If the complainant has more than one case and some of those cases are pending at the EEOC AJ level, the Agency Representative will draft the settlement agreement. The agreement has to be signed by both parties, complainant 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 will be binding upon both parties.

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

4.5.3 The OGC or the OCC will draft and/or review the agreement for concurrence prior to obtaining all necessary signatures. The Counsel to the IG is provided with an opportunity to review, when matters alleged are within their purview.

4.5.4 The complainant shall be afforded a reasonable opportunity to review the draft agreement and consult with a legal or other representative(s) prior to finalizing the agreement.

4.5.5 The signed agreement shall contain the procedures available under 29 CFR. §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 CFR §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.

4.5.6 If the complaint contains 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 OWBPA.

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

4.5.8 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.

4.5.9 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 or the OCC.

4.5.10 Once the agreement is signed by all parties, ODEO shall issue the complainant a notice closing the complaint.

4.5.11 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 OCC and the OCHCO/HRO.

4.5.12 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 (Formal Stage), Appendix C.9, will be used when reporting compliance.

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

4.6 When an ADR Does Not Result in Settlement

4.6.1 If a resolution cannot be achieved, the neutral, in consultation with the Parties, may end the EEO ADR and notify the Center ADR Program Manager or EO Director.

4.6.2 The Center ADR Manager or EO Director shall advise the Agency ADR Program Manager that the ADR effort did not result in settlement.

4.6.3 The complaint shall resume through the regular complaint process at the point where processing ceased.

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