Charles Phillips and Clarence Littlejohn
v.
Department of Navy
01992787, 01A01596
June 8, 2000
Charles Phillips, Complainant,
Appeal No. 01992787
Agency No. 99-00181-009P
and
Clarence Littlejohn, Complainant,
Appeal No. 01A01596
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). 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. 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
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative (if
applicable), and the agency on:
_______________
Date
__________________________
Equal Opportunity Assistant