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.