Between 1993 and 2000,
an EEOC Administrative Judge as well as the EEOC's Office of Federal Operations
(OFO) reviewed the Class complaint solely for purposes of class
certification. During this initial
process, the EEOC examined the composition of the proposed class in order to
determine whether the claims of the Class Agent were common and typical of the
Class as a whole. No rulings could be made on the merits of the discrimination
claim until the issue of class certification was resolved first. Ultimately, in
October 2000, the complaint was provisionally certified by OFO. No rulings were
ever made on the merits of the case because the parties elected to participate
in mediation in late 2000.
The
parties first began having informal talks about settlement in the Summer of
1998, but had trouble finding common ground. In November 2000, the Class agreed to enter into a
structured mediation with Linda Singer, one of the private mediators suggested
by GSFC.
The Class
Mediation Representatives are Class Agent Walter Flournoy, Bill Reaves and
retirees Patrick McClain, Leroy Brown and William Weston. The attorneys for the Class are Irv
Kator, Maia Caplan and Jessica Parks (Class Counsel).
The GSFC
Management Team included now-former Associate Center Director Mary Kicza, the
Director of Human Resources, Jerry Simpson and the Director of the Applied
Engineering & Technology Directorate (AETD), Rick Obenschain. The attorneys representing GSFC in this
case are Dee Kerr and Marleen Phillips, of the Chief Counsel's Office.
During
2001, the parties met in over 10 mediation sessions. As a way of developing rapport and mutual
understanding, the parties shared information relevant to the issues raised.
The sessions included an exchange of statistical information, anecdotal
statements from Class members and presentations concerning GSFC's personnel
management and EO systems. Between
mediation sessions, arms-length negotiations continued via meetings with counsel
and the mediator.
In October
2001, the parties reached an agreement in principle on the terms of their
settlement. Thereafter, the
parties' agreement was memorialized in a subsequent Settlement Agreement that
received final approval from the presiding EEOC administrative judge on July
10, 2002. Soon thereafter, one
Class Member appealed the
EEOC
Judge's final approval; this appeal was denied by the EEOC's Office of Federal
Operations on December 18, 2002.
After related litigation involving this same Class Member was settled,
the Settlement Agreement became effective on March 4, 2003.
First, the
parties agreed that within 30 days of the EEOC Administrative Judge's final
approval of the Settlement Agreement (July 10, 2002), GSFC would transfer the
sum of $3.7M to a qualified settlement fund that would be administered by Class
Counsel. This requirement was met
on August 7, 2002. Out of the
$3.7M, $2,286,459 would be
allocated to Class members in derived back pay, prejudgment interest and
compensatory damages. As part of
the settlement, GSFC agreed that the Class Mediation Representatives would
determine the individual allocation of these monies to Class Members and Class
Counsel via a formula derived by them (See Exhibit 5 of the Settlement
Agreement). A separate amount
of $928,819 will be paid in
attorney's fees to Class Counsel for fees incurred from 1993 through final
approval. Additionally, $500K in
class service awards will be allocated amongst the Class Agent and Mediation
Representatives.
Second,
the parties agreed that at least 22 promotion awards would be given to Class
Members as a whole. This breaks
down into two groups of promotions.
First, twelve (12) promotion awards will be made available to retirees
and retirement eligible employees who are willing to retire within 30 days of
promotion. GSFC has agreed that
the allocation of the retiree promotion awards amongst specific Class members
will be determined by the Class via a formula devised by the Class Mediation
Representatives and Class Counsel (See Exhibit 1 of the Settlement
Agreement). The processing of the
retiree awards was necessarily delayed when final approval of the settlement
was appealed. The process got back
on track in March 2003 when the settlement agreement became effective. Retiree Class Members and current Class
Members who are retirement eligible should learn from Class Counsel whether
they are slated to receive a promotion award under this process by early
summer. Said awards are subject to
approval by the EEOC.
Second,
per the terms of the settlement agreement, at least another ten (10) promotions
were to be awarded to current employee Class members pursuant to a merit-based
promotion review overseen by the Director of AETD (hereinafter referred to as
Phase Iî). (See Questions 18 and
19 for more details)
In an
effort to ensure that the promotion review for current employee S&E's be as
inclusive as possible, the Center agreed that the Director of AETD (with the
concurrence of the Directors of) would review all non-managerial,
non-supervisory S&E's with the average time-in-grade (at least 8
years). (See Questions 12-19 for
more details).
GSFC also
agreed that 10 Class members would participate in the newly created Accelerated
Leadership Program (ALP), which if successfully completed, will lead to an FPL
of GS-14. (See Questions
23-27 for more details).
Finally,
the parties agreed that GSFC would undertake a number of programmatic changes
that are specifically intended to serve the entire GSFC community. During mediation, the parties
negotiated the identities of two independent expert consultants who would be
hired to review and evaluate our performance management and alternative dispute
resolution processes. Said reviews
are currently underway. (See Question 7 for
more detail). GSFC has
also agreed that the implementation of the Settlement Agreement will be
monitored for three (3) years by the Class with periodic reports to be
presented to the presiding EEOC Administrative Judge. (See Question 7 fore more details).
No. The terms of the Settlement Agreement
are specific to this case and as such, only to GSFC. The terms of the Settlement Agreement have no direct impact
upon other NASA Centers or Headquarters.
the provisions of this Settlement
Agreement are intended as, and are properly interpreted as, benefiting all NASA Goddard employees by promoting fairness, consistency and objectivity in the administration of employment practices. No employee
will be displaced from his or her job, lose opportunities for a merit-based
promotion, or receive diminished opportunities for advancement of any kind
as a result of any provision of this Agreement.
Goddard considers the
Settlement Agreement's Phase I and II promotion reviews as providing an
opportunity to assure that all of our journey level and above S&E positions
are classified correctly and that our employees are compensated fairly. Due to promotion constraints, Goddard
had developed a promotion backlog from past years. Under Phases I and II,
Goddard anticipates promoting all eligible S&E's who meet the promotion
criteria established for S&E's.
Neither the monies used
for increased salaries for S&E's nor the monetary damages being awarded
under the settlement will have any impact on GSFC missions. Moreover,
the implementation of
the class action promotion reviews has had absolutely no effect upon the
ongoing administration of the Promotion Redesign Process, which is the
Centerwide promotion process that has been in place since 1999. Employees who are not eligible for a
promotion review under the settlement may be considered for promotion under the
Promotion Redesign Process and said process is being administered as usual
Finally, as noted above,
the Settlement Agreement contains a number of program changes that are
specifically intended to serve the entire GSFC community. In that regard, the
Settlement Agreement provides for:
a. The retention of two independent
outside experts to evaluate and recommend improvements to: (i) GSFC's
performance management system (accretion and career ladder promotions, awards,
training and performance appraisals) and (ii) the alternative dispute
resolution (ADR) process used at GSFC for resolution of informal EEO
complaints. These experts were
expressly chosen by the parties for their experience and neutrality in
assessing various performance systems within federal agencies. Their evaluation
processes will include meeting with diverse focus groups across the GSFC
community. The experts' evaluations and recommendations are scheduled to be
submitted to Goddard and the Class by September 4, 2003. GSFC is scheduled to implement its
accepted recommended changes by March 4, 2004 with all Center supervisors and
employees to be trained in the revised systems.
b. Enhanced training of
managers/supervisors in redesigned performance management system, individual
development plans (IDP's), and mandatory periodic training in EEO and diversity
issues.
c. Increased emphasis on
access to management track training opportunities for S&E's including
Goddard Leadership Education Series (GLES), Management Education Program (MEP),
Professional Development Program (PDP), Project Management Development Emprise
(PMDE) and other Center and Agency wide programs.
d. Increased emphasis on
IDP's/career enhancement training for employees and related survey on usage and
effectiveness of IDP's.
e. Monitoring of GSFC's compliance with the
terms of the Settlement Agreement.
(See Questions 9 & 10 for more information on accountability).
8. How does this Settlement Agreement
affect GSFC scientists and engineers?
The
Settlement Agreement provided for two phases of promotions for certain
S&E's. First, all Class
members who are current employees were evaluated during Phase I for promotion
readiness within 75 days of final approval (July 10, 2002). Second, all non-Class member S&E's
who are non-managerial and non-supervisory will be given a promotion review if
they have 8 years or more time-in-grade (TIG); this review, known as Phase II,
must be completed within one year of final approval (by July 10, 2003). For those S&E's who are not found
ready for promotion, there will be an increased emphasis on the usage of IDP's
as a means of identifying specific developmental needs of employees and
focusing their career paths more directly towards an opportunity for promotion
in the future.
When the
settlement rolled out in May 2002, the Center indicated that it was possible
that it might engage in a third phase of promotion reviews for S&E's with
less than eight (8) years time in grade who were deemed to be high
achievers. The determination of whether
the Center will initiate Phase III, which is not required under the settlement,
will be made after the completion of Phase II in July 2003. This determination will be subject in
part to the budgetary constraints that are on the Center at that time.
9. What mechanisms are in place to ensure Goddard honors the
terms of the Settlement Agreement?
The settlement provides that the
Associate Center Director, Alison McNally, will be responsible for monitoring
the Center's compliance with the terms of the Settlement Agreement. Class
Counsel, Class representatives and the Associate Center Director will meet
periodically to discuss and resolve any outstanding issues with respect to
implementing the terms of the Settlement Agreement.
GSFC also will publish announcements
on all promotions on the Office of Human Resources' website semi-annually. Additionally, for a 3-year period GSFC will provide demographic information to Class Counsel so it can determine if
there is a disparity in the promotion rates of class members. Finally, Class Counsel and NASA will be
filing annual reports of compliance with the EEOC over the next three years.
10. Who at GSFC is responsible for
implementation of the Settlement Agreement?
Associate
Center Director Alison McNally is responsible for overseeing the entire
implementation process. The
Director of AETD, Rick Obenschain, is responsible for overseeing the promotion
review processes under the Settlement Agreement. The Chief of the Equal Opportunity Programs Office, Dillard
Menchan, is responsible for ensuring GSFC's regulatory compliance with the
settlement. The Office of Human
Resources (OHR), currently led by Acting Director Tom Paprocki, is responsible
for ensuring management adherence to personnel management policy and procedures
as well as implementation of the redesigned personnel management system. Finally, an Implementation Team has
been created that includes Dee Kerr (Office of Chief Counsel), Lynne Slater (EO
Programs Office), Tonya West (OHR), Dan Krieger (detailee to AETD) and Pam
Guzzone (detailee to OHR).
11. How do I contact the attorneys for the
Class?
Class
Counsel Maia Caplan may be reached at (202) 898-4800, ext. 256 or at
mcaplan@katorparks.com.
12. Why is the programmatic relief just
getting started? What does it mean
to have an effective date?
While the
parties' Settlement Agreement received final approval from EEOC Administrative
Judge Linda Kincaid on July 10, 2002, a class member subsequently appealed
final approval. The settlement was not considered to be final during the
pendency of the appeal and the implementation of certain relief was stayed as a
result. On December 18, 2002, the
EEOC's Office of Federal Operations denied the appeal. However, related litigation was not
finally resolved until March 4, 2003.
As such, the effective date of the settlement is considered to be March
4, 2003 and all of the programmatic relief required under the settlement is
scheduled to be in place within one year of the effective date.
Promotion
Review Process
13. What exactly are the criteria that will
be used in deciding who gets promoted?
Promotions
for Phases I and II are based upon the criteria previously developed by OHR for
assessing promotion readiness to the GS-14 and -15 Scientist and Engineering
positions. The criteria were
generated prior to the Class Action Settlement as part of the Center's
Promotion Redesign Process. The
actual substance of the criteria was created after OHR had convened focus
groups from every GSFC organization to consider and propose appropriate
criteria for upper level S&E's.
These criteria are published on the OHR website:
http://ohr.gsfc.nasa.gov/Promotion/SciPromoCriteria.htm
http://ohr.gsfc.nasa.gov/Promotion/Eng/PromoCriteria.htm
14.
What if I'm in Phase II and don't want to participate in the process or sign
any documentation? Could this
impact my future ability to get promoted?
No employee is required or will be forced to participate in this process. The Center included Phase II as a part of the settlement in an effort to ensure that all S&E's with at least the
average amount of time-in-grade would receive the same chance to be reviewed
for promotion. GSFC feels that
Phase II represents an opportunity for employees to better understand how their
current performance measures up to the criteria required for promotion to the
next grade. However, if for any
reason, an employee does not want to participate in the process, the employee's
supervisor will write a brief note on the package cover sheet indicating that
the employee does not want to participate. The employee will be given an opportunity to review that
statement and will be asked to concur (again, the employee does not have to
sign the package). The package is then
routed through the employee's supervisory chain and the Director of Engineering
for the sole purpose of documenting compliance with the settlement. An employee's decision not to
participate in Phase II has absolutely no impact on his or her future ability to receive a
promotion.
15. What if in my promotion package,
I meet all of the promotion criteria except one? Can I still receive a promotion?
No. In order for an employee to demonstrate
readiness for an accretion promotion through this process, the employee must
meet all
promotion criteria for the next grade level. There are no exceptions. However, if an employee has relatively few shortfalls in his
or her promotion package, then there is a great opportunity to develop a
focused Individual Development Plan designed to address those shortfalls.
16. Are the promotion criteria supposed
to be a checklist?î What if the
work that I have been doing doesn't lend itself to the promotion criteria?
This
question arose from a perception that the promotion criteria would be applied
in the strictest possible sense:
that employees have to meet the specific language of each
criterion. As stated earlier, an
accretion promotion requires that each of the criteria must be met, either by
documented performance that exactly meets the specific criterion's requirements
or through an equivalency. There
will be occasions in which an employee's job functions do not facilitate
meeting the criterion's exact language.
(For example, someone co-located to a major development activity may be
unable to have chaired a division or directorate level committee.î However, if the employee has
demonstrated leadership qualities by chairing technical and scientific
committees and working groups that influence division or directorate level
decisions, an equivalency clearly exists in this instance.) The requirement to fully meet the
criteria cannot be relaxed, but the method of demonstrating compliance can be
tailored for each promotion review evaluation. In those instances, employees should work with their
supervisors to make a case that the specific criteria are being met by the
accomplishment of an equivalent activity.
17. What if I'm a Project
Manager? Can I be evaluated
against the criteria for Project Managers instead of for engineers or
scientists?
No, all
employees in Phases I and II must be evaluated against either the criteria for
scientists or engineers. This is
because the Settlement Agreement dealt specifically with promotions of
scientists and engineers and not other skill groups.
18. When will S&E's receive their promotions?
Under Phase I, Class Members were
assessed for promotion readiness within 75 days of final approval (July 10,
2002). Those who were immediately
ready for promotion received their promotions within five (5) months of final
approval. As provided for under
the settlement, those Class Members who will be ready for promotion within one
year of final approval with the completion of one or two additional work
assignments, are in the midst of pursuing said opportunities and if completed,
will be promoted by July 10, 2003.
The Phase II promotion review for
non-class member S&E's with eight (8) years or more TIG will be completed,
and all related promotions will made effective, on or before July 10, 2003.
Implementation Status
19. How
many promotions have been awarded due to the Class Action Settlement?
The Phase
I promotion review began on July 11, 2002 and with one exception due to serious
illness, was completed by mid-September 2002. As a result of Phase I, nineteen (19) Class Members received
immediate promotions and seven Class Members were identified as being ready for
promotion within one year upon the completion of specific assignments. As of March 2003, four members of this
latter group also had been promoted.
The Phase II promotion review
process began in the Fall of 2002 and is currently underway for 480 GSFC
employees. All promotion packages
for Phase II employees were required to be submitted to the Director of AETD by
April 30, 2003. Per the
settlement, the Phase II promotion review process must be completed by July 10,
2003.
20. What is the status of the
Alternative Dispute Resolution (ADR) process review?
Edna Povich, the independent ADR
expert from the Center for Dispute Settlement (CDS) has completed her research
and is in process of preparing a report of her findings and recommendations for
the Center's ADR program for informal EEO complaints. In the near future, Ms. Povich's report will be conveyed to
both GSFC and the Class for comments and recommendations as to the proposed
redesign of the ADR program. Implementation
of the redesigned program must be completed by March 4, 2004.
21. What is the status of the
Performance Management System (PMS) review?
The review is under way and being
conducted by independent experts from the Personnel Decisions Research
Institute, Inc. (PDRI). PDRI, has
been reviewing a large amount of information and data related to the Center's
performance management system.
Members of PDRI will begin meeting with focus groups of employees and
supervisors in May 2003 as part of their data collection process. Their
evaluation of the PMS and any
recommendations for its redesign are scheduled to be submitted to the
parties by September 4, 2003 with implementation required to be completed by March
4, 2004.
22. When will Class members receive their
monetary awards?
The timing and allocation of the
monetary awards is addressed in Exhibit 5 of the Settlement Agreement. Under the settlement, GSFC has no role
in the allocation of the monetary awards other than providing underlying
personnel data to Class Counsel that has been used to calculate the individual
awards pursuant to Exhibit 5. The data was provided to Class Counsel in
September 2002, but could not be analyzed by the Class statistician until the
Settlement Agreement became effective on March 4, 2003. The proposed breakdown of the monetary
awards amongst Class Members must be approved by the presiding EEOC
administrative judge prior distribution.
It is expected that the monetary awards will be issued within the next
six months or so.
Training and Development
Initiatives
23. What is the Accelerated Leadership
Program?
The
Accelerated Leadership Program (ALP) is a Goddard-unique leadership program for
aspiring leaders that creates a pipeline of diverse individuals to address
under-representation in supervisory and management positions. It accelerates the development of
leadership competencies by systematically providing the skills, knowledge,
abilities, and other attributes needed based on the Agency's Leadership Model
and GSFC's Leadership/Management Needs Assessment.
24. What does the ALP consist of?
The ALP
program is 16-24 months in duration.
It consists of planned on-the-job training, classroom training,
rotational developmental assignments, journaling and other developmental
experiences. ALP participants will
have their leadership skills assessed and will receive group and individual
coaching and mentoring.
25. In addition to training, what other
benefits will participants in the ALP receive?
Employees
selected to participate in the ALP will receive a one-grade increase in their
full performance level at the time of selection after signing a service
agreement. Also, participants will
take part in two 30-60 day details outside of their current job responsibilities
that will provide them with increased visibility.
26. Who is eligible for consideration to
participate in the ALP?
The ALP is
open to all employees who are at their full performance levels and who are
between the GS-11 and GS-13.
Employees should have demonstrated leadership qualities. There are 20 employees in the first ALP
class.
27. When
were Class Members selected for this program?
After a
competitive selection process, 10 Class Members were selected to participate in
the ALP, along with another 10 non-Class Members. This program began in January 2003.
28. We've always had Individual Development Plans
(IDP's). Why are they emphasized
in the Settlement Agreement?
The
parties included increased emphasis on IDP's because the Class action was in
part based upon a perception that some groups of employees were not being given
the same access to career development opportunities as others. Goddard is indeed committed to
developing all of its employees equally.
In May 2003, Goddard will send a global e-mail message that will
encourage all employees to participate in the creation of an IDP. As noted in the email, all supervisors
are now required to offer employees a meeting at least once a year to discuss
and/or establish IDP's so that they can identify employees' projected career
goals, related assignments and training consistent with Goddard's mission, and
any other grade-enhancing duties or responsibilities. Goddard will continue to communicate with employees about
the importance of developing IDP's and will offer supervisors and employees
related training. Goddard will
also administer an annual employee survey designed to obtain candid views on
the IDP process including whether their supervisors offered and provided them
an opportunity to establish an IDP and whether their supervisors provided
information about available opportunities to meet the employee's career
objectives and to what extent job assignments were available within the
provisions of the IDP.
29. What training will be provided under
the Settlement Agreement?
All
employees will receive training on all aspects of the redesigned performance
management system prior to its implementation or within three months
thereof. Supervisors will be
trained on the purpose and process of establishing and using IDPs as well as
EEO and diversity issues. Career
enhancement training will be made available to employees that will include
information on the effective preparation of IDPs and career development.
30. Will there be a Phase III promotion review?
No, the Center will not be conducting a Phase III promotion review. During the Phase I and Phase II reviews, 535 employees were reviewed for promotion resulting in 165 promotions. During this review period, other career ladder and accretion promotions were also processed. The center will continue to process senior level promotions in accordance with the Center promotion process.
31. The Settlement Agreement requires Equal Opportunity (EO) training for all supervisors. How does this training differ from the EO training supervisors may have taken in the past?
The new training has a strong focus on "First Responder" skills and tools. It focuses on helping supervisors recognize and respond to many kinds of employee issues and is consistent with the Center's Conflict Management System principle that supervisors are the first level of response in workplace disputes. Supervisors will be provided methods and tools to help them resolve issues before they become significant problems. This focus on "First Responder" skills and tools is a departure from the previous training that was more heavily focused on EEO regulations and procedures.
