Procedural
Requirements / NPR 3713.2B
Effective Date: May 22, 2017
Expiration Date: May 22, 2022
COMPLIANCE IS MANDATORY
Subject:Alternative Dispute Resolution for Discrimination Complaints
Responsible Office:Office of Diversity and Equal Opportunity
Preface
P.1Purpose
P.2Applicability
P.3Authority
P.4Applicable Documents and Forms
P.5Measurement/Verification
P.6Cancellation
Chapter 1. Roles and Responsibilities
1.1Associate Administrator for the Office of Diversity and Equal Opportunity
(ODEO)
1.2Director, Complaints Management Division, ODEO
1.3Agency Alternative Dispute Resolution (ADR) Program Manager
1.4Center Director
1.5Center Equal Opportunity (EO) Directors
1.6Center Equal Employment Opportunity (EEO) ADR Managers
1.7EEO ADR Management Team
1.8Management Representative
1.9Settlement Official
1.10 Neutral
1.11 Office of General Counsel/Office of Chief Counsel
Chapter 2. ADR and Rights under the Discrimination Complaint Process
2.1Agency ADR Policy
2.2ADR Techniques
2.3Notification of Rights under the Discrimination Complaint Process
2.4Voluntary Nature of ADR and Prohibition against Coercion
2.5Effect of ADR Participation on Regulatory Timeframes
2.6ADR Consideration and Offer
2.7Agency Officials Participation
2.8"Class Actions" and Multi-Party Disputes
2.9Confidentiality
2.10Representation
2.11 Reasonable Accommodation during EEO ADR
2.12 EEO ADR and Contract Employees and Applicants
Chapter 3. ADR Informal Process
3.1Introduction
3.2Determining Appropriateness of Informal Complaint for ADR
3.3Arranging for ADR
3.4Monitoring the Progress of the ADR
3.5Settlement
3.6When ADR Does Not Result in Settlement
Chapter 4. ADR Formal Process
4.1Introduction
4.2Determining Appropriateness of Complaint for ADR
4.3Arranging for the ADR
4.4Monitoring the Progress of the ADR
4.5Settlement
4.6When ADR Does Not Result in Settlement
Appendix A. Definitions
Appendix B. Acronyms
Appendix C. Templates
Preface
P.1 Purpose
This NASA Procedural Requirements (NPR) applies to alternative dispute resolution (ADR) program activities in the equal employment opportunity (EEO) context. The NPR establishes procedures and operating principles for Agency-wide EEO ADR activities. These procedures also are intended to ensure the U.S. Equal Employment Opportunity Commission (EEOC) regulatory requirements and NASA policy directives are met and to ensure for consistency across NASA Centers. These procedures do not establish or expand any rights to administrative or judicial review or establish a remedy for any NASA employee, applicant for employment, contractor, or other person separate from existing rights under applicable Federal laws and EEOC regulations.
P.2 Applicability
a. This directive is applicable to NASA Headquarters and NASA Centers, including Component Facilities and Technical and Service Support Centers. Thisdirective applies to the Jet Propulsion Laboratory (JPL) as a Federally Funded Research and Development Center (FFRDC) and other contractors only to the extent specified or referenced in the applicable contracts or established in applicable Federal laws.
b. In this directive, all mandatory actions (i.e., requirements) are denoted by statements containing the term "shall." The terms: "may" or "can" denote discretionary privilege or permission, "should" denotes a good practice and is recommended, but is not required, "will" denotes expected outcome, and "are/is" denotes descriptive material.
c. In this directive, all document citations are assumed to be the latest version unless otherwise noted.
d. This directive is applicable to NASA directives developed or revised after the effective date of this NPR.
e. Unless otherwise indicated, use of the word Center(s) in the text of this NPR includes NASA Headquarters and the NASA Shared Services Center. Any reference to Center Director(s) includes the Executive Director for the Office of Headquarters Operations and the Executive Director, NASA Shared Services Center.Any reference to Center EO Directors, includes EO Directors at NASA Headquarters, and NASA Shared Services Centers.
P.3 Authority
a. Administrative Dispute Resolution Act (ADRA) of 1996, as amended, 5 U.S.C. §571 et seq.
b. Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. § 206(d).
c. Age Discrimination in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. §
621 et seq.
d. Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.
e. Civil Rights Act of 1991, 42 U.S.C. § 1981a.
f. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 et seq.
g. Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 2000e5(e)(A).3)(A)
h. Genetic Information Nondiscrimination Act (GINA) of 2008 42 U.S.C. 2000ff et seq.
i. Federal Sector Equal Employment Opportunity, 29 C.F.R. Part 1614.
j. Older Worker's Benefit Protection Act (OWBPA) of 1990.
k. NPD 3713.6, Delegation of Authority to Act in Matters Pertaining to DiscriminationComplaints.
l. NPD 2010.2, Alternative Dispute Resolution (ADR).
P.4 Applicable Documents and Forms
a. Equal Employment Opportunity Commission (EEOC) Management Directive (MD) 110.
b. NPR 3713.1, Reasonable Accommodations Procedures.
c. NPD 3713.8, Provision of Reasonable Accommodation for Individuals with Disabilities.
d. EEO ADR Election Form C.1 (Formal Stage).
e. EEO ADR Election Form C.2 (Informal Stage).
f. Agreement to Mediate Form C.3.
g. ADR Participation Evaluation Form C.4.
h. Evaluation for Completion by Mediators Form C.5.
i. Reporting on Compliance with EEO Settlement Agreement Form C.6.
j. Settlement Agreement Compliance Checklist, C.7.
P.5 Measurement/Verification
a. Center EEO Directors will updateCenter EEO ADR procedures along with any related informational materials to the Agency Office of Diversity and Equal Opportunity (ODEO) for concurrence within 90 days of the effective date of this NPR (see also Sec. 1.4.2 below).
b. Center EEO Directors, in cooperation with ODEO, will periodically evaluate the operations and success of their EEO ADR Program and engage in periodic data gathering and other evaluation activities, including submitting ADR activity information to ODEO for annual reporting to the EEOC.
c. Center EEO Directorswill distribute template documents "ADR Participant Evaluation" (see Appendix C) and the "Mediator's Evaluation" (see Appendix C) and collect these templates from each participant at the conclusion of the mediationor ADR process. If a participant refuses to complete the evaluation, the Center EEO Directors should document the decision and reasons given, if any.
d. Center EEO Directorswill update the NASA Agency-wide complaints tracking system at the conclusion of each mediationor ADR process at the informal stage. ODEO is responsible for updating the NASA Agency-wide complaints tracking system at the formal stage.ODEO uses this data to monitor trends and determine the extent to which EEO ADR assists in resolving disputes.
P.6 Cancellation
NPR 3713.2,Alternative Dispute Resolution for Discrimination Complaints, dated May 8, 2009.
Chapter 1. Roles and Responsibilities
1.1 Associate Administrator for the Office of Diversity and Equal Opportunity
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 programand 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, ODEOis 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 Director, Complaints Management Division, ODEO
1.2.1 The Director, Complaints Management Division, shall:
a. Provide oversight of the day-to-day operations of theAgency 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 Agency ADR Program Manager
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 Agencywide;
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 Agencywide;
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 Center Director
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’sEEO 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 Center Equal Opportunity (EO) Directors
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 processin 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 Center EEO ADR Managers
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 andmay 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 andCenter 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 EEO ADR Management Team
1.7.1 Each Center shall have an EEO ADR Management Teamcomprised of representatives from the Center's EEO Office, the OGC/OCC, and the OHCM/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 Management Representative
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.