01a01596
06-08-2000
Charles Phillips, Complainant, and Clarence Littlejohn, Charles Phillips, Complainant, and Clarence Littlejohn, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Charles Phillips, ) Appeal No. 01992787
Complainant, ) Agency No. 99-00181-009P
and )
Clarence Littlejohn, ) Appeal No. 01A01596
Complainant, ) Agency No. 99-00181-037P
v. )
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
The above captioned appeals present an issue of first impression.
At issue is the legitimacy of a Pilot EEO Dispute Resolution Program
(Pilot Program) designed by the agency to provide an alternative
means of processing EEO complaints. At the pre-complaint counseling
stage, both complainants elected to participate in the Pilot Program.
When alternative dispute resolution failed, they requested final agency
decisions which they now appeal. The Commission accepts and consolidates
the appeals pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405).<1> For the following reasons, the Commission
finds that the Pilot Program fails to comport with 29 C.F.R. Part 1614;
vacates the final agency decisions; and remands both complaints for
further processing.
On November 9, 1999, the Commission issued revised regulations requiring
agencies to establish or make available an alternative dispute resolution
(ADR) program. 64 Fed. Reg. 37,644, 37,655 (1999)(to be codified at
and hereinafter referred to as 29 C.F.R. � 1614.102(b)(2)). The Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Chapter 3 (November 9, 1999) provides guidance for the
development of these programs. The Commission intends for the ADR
program to operate within the Part 1614 process, not to replace it.
The Commission requires that an ADR program not diminish an individual's
right to pursue his or her claim under the Part 1614 process should ADR
not resolve the dispute. For example, an ADR program may not require
an individual to waive his or her right to an investigation, a hearing
or an appeal to the EEOC. EEO MD-110, 3-2. After a thorough review
of the Pilot Program's guidelines and its operative consequences
on the underlying complaints at issue, the Commission finds that
the Pilot Program is not a method of alternative dispute resolution
which satisfies the regulatory requirements of 29 C.F.R. Part 1614.
See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. � 1614.105). The Commission concludes that the
Pilot Program is actually a substitute procedure for the federal sector
EEO process and that, as such, it violates the policies, procedures and
guidance set forth in the EEO Management Directive.
The agency has structured the Pilot Program such that individuals who
wish to pursue an EEO matter have a choice to proceed pursuant to the
Part 1614 process or pursuant to the Pilot Program. If an individual
chooses to proceed under the Pilot Program, the agency requires the
individual to sign an agreement waiving his or her right to: (1) remain
anonymous; (2) request a hearing before an EEOC Administrative Judge;
and (3) "opt out" of the Pilot Program. Having signed the agreement,
the individual is given a choice between four forms of alternative
dispute resolution: conciliation; mediation; early neutral inquiry;
or a settlement conference. The Pilot Program provides that during the
forty-five day period the parties have to achieve resolution, a "factual
record" will be developed by a Dispute Resolution Specialist (DRS).
If the parties do not reach a satisfactory resolution, the agency is
then required to collect and incorporate any documentation to complete
the record upon which a final agency decision can be made should the
individual request one. The final agency decision is drafted by a
"reviewer" and forwarded to the agency's legal counsel for comment.
If dissatisfied with the final agency decision, the individual may
appeal to the EEOC or file a civil action.
By requiring an individual to waive his or her right to "opt out,"
the Pilot Program deprives the individual of the right to return to the
Part 1614 process should ADR not resolve the dispute to the individual's
satisfaction. Thus, the "opt out" requirement diminishes an individual's
rights under Part 1614 and violates a core principle of any successful
ADR program: voluntariness. EEO MD-110, 3-16. Furthermore, the revised
regulations provide that if a matter is not resolved either through
traditional counseling or the ADR process, the agency must ensure that
an EEO counselor's report is prepared and that the allegedly aggrieved
individual is given a final interview and informed of the right to file
a formal complaint. 29 C.F.R. � 1614.105(d). If the individual files
a formal complaint, the agency is required to conduct an impartial
and appropriate investigation and notify the individual of his or
her right to request a hearing before an EEOC Administrative Judge.
64 Fed. Reg. 37,644, 37,656-57 (1999)(to be codified at 29 C.F.R. �
1614.108). The Pilot Program rejects these regulatory requirements and
gives an individual two choices: either abandon the complaint or request
a final agency decision without a traditional investigation and without
a hearing.
The Commission finds that in designing the Pilot Program to eliminate the
hearing, the agency successfully avoids the most significant regulatory
change in the Part 1614 process: making decisions of EEOC Administrative
Judges binding on the parties. 64 Fed. Reg. 37,644, 37,657 (1999)(to
be codified at 29 C.F.R. � 1614.109(i)). Although the Pilot Program
preserves the individual's right to appeal the final agency decision
to the EEOC, the Commission finds that by depriving an individual
of a traditional investigation and the right to request a hearing,
there is no mechanism to ensure that if the individual files an appeal
to the Commission, the "factual record," which replaces the impartial
and appropriate investigation required by 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified at 29 C.F.R. � 1614.106(e)(2)), will be sufficient
to make a determination on the merits of the underlying complaint.
The Pilot Program also fails to address how the agency will handle
a record that is deemed insufficient for review and remanded by the
Commission.
Furthermore, the role of the DRS, who is not only charged with providing
traditional pre-complaint counseling but is also responsible for
developing the "factual record," seriously undermines a second core
principle of a successful ADR program: neutrality. EEO MD-110, 3-16.
If the individual selects conciliation or early neutral inquiry,
the Pilot Program Guidelines provide for the DRS to participate.
If the individual opts for a settlement conference, no neutral third
party is present and the DRS conducts the conference. If ADR fails,
the DRS is then responsible for ensuring that the record is complete
should the individual request a final agency decision. The Commission
concludes that by requiring the DRS to participate in pre-complaint
counseling, the "factual development" of the record, and the ADR stage,
any semblance of neutrality is lost, and the promotion of trust between
the parties is severely compromised. EEO MD-110, 3-12. Moreover, these
three techniques, which require the DRS to keep a written record of the
proceedings, appear to violate a third core principle of a successful
ADR program: confidentiality.<2> EEO MD-110, 3-16,17. The Commission
requires that explicit limits be placed on the dissemination of
information concerning ADR proceedings in order to promote trust that such
information will not be later used against participating parties. Id.
The Pilot Program, in requiring the DRS to be present during the ADR
proceedings and to complete the "factual development" of the record
should ADR fail, invites the disclosure of the precise information the
confidentiality requirement is intended to protect.
The instant appeals are examples of how the Pilot Program operates
to disadvantage individuals whom ADR fails. In agency complaint
no. 99-00181-037P, complainant, a Police Officer, chose to participate in
conciliation. Complainant alleges that the agency refused to accommodate
his medical condition and assigned him to clean toilets. The record,
developed during both the conciliation process and after it failed,
contains the following documents: a position description; a performance
evaluation; a graphic of the chain of command; a computer generated list
of employees names, genders and disability codes; agency instruction
no. 12339.1 concerning medical determinations related to employability;
blank medical evaluations; and memos and notes describing how poorly the
conciliation meeting went and the fact that management had no information
to offer. There is one statement from complainant documenting his lack
of trust in the process wherein he alleged that portions of his intake
complaint remained incorrect and that the conciliation meeting was very
intimidating. We note that complainant abruptly left the conciliation
meeting whereupon it ended.
The record also contains a summary report from the Dispute Resolution
Specialist (DRS). The summary report describes the claims, lists the
names and titles of several so-called witnesses most of whom have no
knowledge of the incidents at issue, and contradictory evidence about
accommodations and toilet cleaning duty. The summary report fails
to indicate whether any of the presumably named comparative employees
were similarly situated to complainant and fails to follow up on one
witness' statement that complainant was essentially treated differently
from other officers. There were no sworn affidavits from anyone with
whom the DRS spoke. The final agency decision ignored the contradictory
evidence raised in the summary report and drew conclusions for which we
find no support in the above described record.
In agency complaint no. 99-00181-009P, complainant, a Sheet-Metal
Mechanic, chose to participate in mediation. Complainant alleges that
he was transferred from one job and reassigned to another. The factual
record developed includes a graphic of the chain of command of a project
management team; computer generated lists showing overtime worked by
comparative employees; copies of e-mail messages from the management
officials concerning the transfer; and the DRS' summary report. The final
agency decision found that complainant proffered "mere assertions" and
failed to rebut management's explanation for his transfer. We note that
after mediation failed, while gathering information for the issuance of
the final agency decision, the DRS sent an e-mail message to one of the
named responsible management officials stating, "We want to make sure the
Activity is seen in the appropriate light." The Commission finds that
the factual development of this record was not completed by a neutral,
disinterested individual.
The Commission concludes that if the Pilot Program had been in compliance
with the revised regulations and the EEO Management Directive, after ADR
failed to resolve the instant complaints, complainants would have received
a final interview and a notice of the right to file a formal complaint.
See 64 Fed. Reg. 37,644, 37,645 (1999); EEO MD-110, 3-8. Therefore, the
Commission remands both complaints for resumed processing in accordance
with 29 C.F.R. � 1614.105(d). The Commission further orders the agency
to immediately suspend the Pilot Program and take action consistent with
the ORDER set forth below.
ORDER
The Commission orders the agency to take the following action:
(1) The agency shall process the remanded claims separately in accordance
with 29 C.F.R. � 1614.105(d). Each complainant shall be informed in
writing by an EEO Counselor, no later than the thirtieth day after this
decision becomes final, of his right to file a formal EEO discrimination
complaint. The notice shall inform complainant of the right to file
his complaint within fifteen days of receipt of the notice, of the
appropriate official with whom to file a complaint and of complainant's
duty to inform the agency if he retains counsel or a representative.
(2) Upon receipt of this decision, the agency shall immediately
suspend the Pilot Program. The agency shall deem all complaints which
are currently being processed through the Pilot Program as unresolved,
and no later than the thirtieth day after this decision becomes final,
the agency shall notify all affected individuals whose complaints are
currently being processed through the Pilot Program of their right
to file a formal EEO discrimination complaint pursuant to 29 C.F.R. �
1614.105(d).
(3) Any ADR program which the agency establishes pursuant to 29 C.F.R. �
1614.102(b)(2) must satisfy the requirements of 29 C.F.R. Part 1614
and comport with EEO MD-110, Chapter 3 (November 9, 1999).
(4) The agency is directed to submit a report of compliance, as provided
in the statement entitled "Implementation of the Commission's Decision."
The report shall include evidence that the corrective action in
paragraphs (1) and (2) has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action,
the administrative
processing of the complaint, including any petition for enforcement,
will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN
THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
June 8, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Pilot Program requires that mediation be a confidential proceeding,
but it is not clear whether the DRS participates. We note that mediation
is the only form of ADR which the Pilot Program demands that the neutral
third party be "impartial." However, the "neutral impartial third party"
has no decision making authority.