EQUAL EMPLOYMENT OPPORTUNITY C ommission

BALTIMORE FIELD OFFICE
10 South Howard Street, 3RD Floor
Baltimore, MD

 

____________________________________

Walter Flournoy,                                   
on behalf of himself                             
and all other persons similarly situated,       
                                                 
Class Agent,      

v.

Sean O’Keefe, Administrator
               

National Aeronautics and                     
Space Administration,  
Agency.                       

___________________________________

 

Agency No. NCN-92- GSFC-F064

EEOC No. 120-A2-1267X

 

SETTLEMENT AGREEMENT

TABLE OF CONTENTS

 

I.               INTRODUCTION

II.            GENERAL PROVISIONS

A.             Definitions

B.             Jurisdiction and Venue

C.             Effective Date and Term of Agreement

D.             Persons Covered by Settlement Agreement

1.             Definition of Class

2.             Release/ Bar of Claims

E.             Denial of Liability

F.              Conflicts

G.             Confidentiality and Return of Documents

H.             Approval of Settlement Agreement as Written

I.               Interpretation of Settlement Agreement

1.             Nature of Agreement

2.             No Displacement

3.             No Modification of Title VII Requirements

4.             Payment for Fees, Costs and Expenses

(a)     Detailed Invoice Required

(b)     No Entitlement to Unspent Funds

III.          RELIEF

A.             General Injunctive Relief

1.             General Provisions 

(a)          Purpose and Scope

(b)          Computation of Time

(c)           Target Dates

(d)          Selection of Independent Expert and Independent Mediation Expert

(e)          Outside Consultants

2.             Goddard’s Performance Management System

(a)          Schedule and Content

(b)          Expert Consultation

(c)           Standards Governing Review and Granting of Promotions

i.       Accretions

(d)     Individual Development Plans

3.             Training and Education

4.             Reductions in Force

5.             EEO ADR Process

6.      Monitoring

(a)          Monitor Roles

(b)          Publication of Promotions

(c)           Data and Analysis

i.       Information and Documentation

ii.       Items to be Provided

iii.      Privacy Act

(d)     Periodic Meetings

(e)     Reports to the Presiding Administrative Judge

B.             Monetary Relief

1.             Creation and Administration of Settlement Fund

2.             Fund Administrators’ Administrative Responsibilities

3.             Exclusive Responsibility of Class Counsel

4.             Method of Identification of Class Members to Receive Monetary Relief

5.             Distribution of Monetary Awards to Class Members

6.             Tax Consequences of Monetary Relief

C.             Promotional Relief

1.             Relief to Qualified Retired and Retirement-eligible Class Members

(a)     Method of Identification of Class Members

(b)     Implementation of Promotion Awards

2.             Relief to Current Employee Class Members

(a)     Method of Identification of Class Members and

Implementation of Awards

3.             Relief to Class Agent

4.             Guaranteed Participation in Accelerated Leadership Program

IV.           ENFORCEMENT

A.             Negotiation and Mediation

V.             PUBLICITY

VI.           SEVERABILITY

VII.        COLLECTIVE BARGAINING

VIII.      GOVERNING LAW

IX.      BINDING AGREEMENT

 

 

        


 

I.        INTRODUCTION   

 

On April 19, 1993, Walter Flournoy, an African American engineer employed by the National Aeronautics and Space Administration (“NASA”) Goddard Space Flight Center (“Goddard” or (“GSFC”), filed an administrative class complaint of discrimination against NASA Goddard alleging violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.   In the administrative complaint, the Class Agent sought declaratory, injunctive, and monetary relief on behalf of himself and the putative class of all African American non-managerial, non-supervisory scientists and engineers at NASA’s Goddard Space Flight Center who were eligible for but did not receive promotions from the GS-13 and GS-14 to the GS-14 and GS-15 levels.  

NASA Goddard forwarded the administrative complaint to the Equal Employment Opportunity Commission’s Office (“EEOC” or the “Commission”) for processing.   Between May 1993 and March 1998, the parties litigated the issue of class certification.  On March 3, 1998, the Commission Office of Federal Operations (“OFO”) issued a decision provisionally certifying the class and directing NASA’s continued processing of the complaint.   In April 1998, NASA requested reconsideration of the decision, which was upheld on October 19, 2000.  On November 21, 2000, NASA Goddard sent out a Notice of Acceptance of the class complaint. 

In February 2001 the parties began voluntary mediation sessions before Linda Singer of ADR, Associates. [1]   During this process, the parties voluntarily exchanged sufficient information to assess the relative merits of the systemic claims of the Class Agent and the putative class, and of NASA’s defenses.  Ultimately, the parties reached an agreement in principle on terms for the settlement, which terms are incorporated in and superseded by this Settlement Agreement.   

This Agreement is reached after extensive arms-length negotiations between the parties and in the spirit of compromise and desire for final resolution of this matter.   In the interests of ensuring equality of employment opportunity and respect for civil rights, and avoiding the expense, delay, and inconvenience of further litigation of the issues raised in this action, and in the absence of any admission of liability by NASA Goddard and in reliance on the representations, mutual promises, covenants, and obligations set out in this Settlement Agreement, and for good and valuable consideration also set out in this Agreement, the Class and NASA Goddard, through their undersigned counsel of record, hereby stipulate and agree as follows:

II.     GENERAL PROVISIONS   

A.             Definitions

 

The following terms, as they are used in this Settlement Agreement, shall have the meanings defined below:

1.             Administrative Class Complaint or Class Complaint

 

The formal administrative class complaint of discrimination filed against NASA Goddard by Walter Flournoy on behalf of himself and all others similarly situated on April 19, 1993, and pending before the EEOC’s Baltimore District Office as No. 120-A2-1267X.   

2.               African American

 

As defined in Appendix 4 of the current Instruction Booklet for completion of Standard Form 100, Employer Information Report EEO-1.   “African American” and “Black” are used interchangeably, and for the purposes of this Agreement shall include Black aliens, lawfully able to work for NASA Goddard but who are not of American citizenry or descent.

3.             Claims Administrator

 

The firm retained pursuant to Part III of this Agreement to assist Class Counsel in the administration and distribution of awards to be made pursuant to this Agreement. 

4.             Class Claim

 

Any individual or class-wide actual or potential race discrimination claim, administrative charge, demand, grievance, complaint, right and cause of action of any kind, known or unknown, by a Class Member or the Class Agent against NASA Goddard for monetary, injunctive or equitable relief and/ or for attorney’s fees, arising from any events, acts, omissions, policies, practices, procedures, conditions or occurrences concerning employment or promotion in a position as a non-managerial, non-supervisory engineer or scientist at the GS-13 or GS-14 levels at any time on or after April 19, 1991, but no later than February 25, 2002, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. , or any other federal, state, or local statute, regulation, rule, order, ordinance or other authority of any nature prohibiting racial discrimination in employment.  Class Claim refers to any claims or other cause of action described above brought in an arbitral, judicial or other forum of whatsoever kind or nature.  

5.             Class Counsel

 

Maia Caplan, Jessica Parks, Michael Kator, Irving Kator, and other attorneys of the law firm of Kator Parks & Weiser, PLLC, 1020 19th Street, NW, Suite 350, Washington, DC  20036.

6.             Class Expert

 

Drogin, Kakigi & Associates, 3104 Shattuck Avenue, Berkeley, CA 94705.

7.             Class Agent

 

Walter Flournoy.

 

8.             Confidential Information

 

Information of any type, kind or character and in any form that has been or will be obtained by one party to his case or its counsel or agents from the other party to this case its counsel or agents that is not generally known to the public.  The term includes data that has been or will be provided by NASA Goddard; all statistical analyses of such data; all internal memoranda, e-mails, personnel plans, programs, policies and procedures, and computerized data; information regarding NASA Goddard’s past, present or future employees, including, but not limited to, home addresses and telephone numbers, social security numbers, wage or earnings records, benefits, performance evaluations, or disciplinary records; NASA Goddard’s confidential evaluations of business or personnel information; statistical data evaluating NASA Goddard’s workforce; all information produced pursuant to the Mediation Confidentiality Agreement; and all discussions, communications, information, and negotiations regarding settlement and/or mediation of this case.   Confidential information does not include the disclosure by one party of discussions, communications, information, correspondence or negotiations regarding this case taking place between or among that party and its own counsel or agents; provided, however, that confidential information received by one party or its counsel or agents from the other party or its counsel or agents shall not lose its status as confidential information regardless of any action taken with respect to such confidential information by the party receiving it.   The prohibition on disclosure of confidential information is not intended to bar Class Counsel from making statements to the Class which discuss the settlement process generally, or to bar either party from supporting and defending this Settlement Agreement at the Preliminary and Final Approval hearings.  

9.             Effective Date

 

The date on which the presiding Administrative Judge has finally approved the provisions of this Settlement Agreement, signed, and entered this Agreement and the time for appeal has run without an appeal being filed or, if an appeal is filed, the final resolution of that appeal.

10.        Final Approval

 

The entry by the presiding Administrative Judge of the Order granting final approval of this Settlement Agreement as fair, reasonable, and adequate to the Class as a whole.

11.        Mandatory Joinder Claim

 

Any race and/or reprisal claim arising out of the same occurrence, event, or nucleus of facts as any Class Claim.

12.        Mediation Representatives

 

Class Agent Walter Flournoy and Patrick McClain, William Weston, Leroy Brown and William Reaves.

13.        NASA Goddard

 

The National Aeronautics and Space Administration Goddard Space Flight Center, including the duty stations in Greenbelt, Maryland and Wallops Flight Facility, Wallops Island, Virginia.

14.        Performance Management System

 

NASA Goddard’s processes governing accretion and career ladder promotions; performance awards; training; and performance appraisals.

15.        Performance or Special Act Awards

 

Monetary sums awarded to employees based on performance appraisals and for

 

specific accomplishments associated with the mission of Goddard.

 

16.        Retirement Eligible Class Members

 

Class Members who are current employees and who are:   (1) eligible to retire (by qualifying age and years of service); and (2) elect to retire pursuant to Part III.C of this Agreement.

17.        Settlement Fund

 

The qualified settlement fund created by the required prospective deposit of $3,715,278 in principal by NASA Goddard, the purpose and administration of which are governed by Part III.B of this Agreement.

18.        Settlement Fund Administrator or Trustee

 

The persons designated to effectuate settlement terms concerning satisfaction and resolution of all claims pursuant to Part III.B of this Agreement; receiving and processing information pertaining to Class Member’s claims; investing, allocating and distributing the Fund; and in general supervising the administration of the Settlement Fund in accordance with the Agreement.  

19.        Signing of the Agreement

 

The date on which all parties have signed the Agreement and in the event of

 

multiple dates, the latest date of a party’s signature.

 

20.        Statistically Significant

 

A disparity measured by a least two standard deviations.

 

21.        This Case

 

Refers to all proceedings relating to or arising from the Administrative Class Complaint, including, without limitation, any related informal administrative proceedings and mediation efforts that pre-dated the filing of the Administrative Class Complaint.

B.             Jurisdiction and Venue

 

The Parties agree that the Commission has jurisdiction over the Parties and the subject matter of this action.  Pursuant to 29 C.F.R. Section 1614.504, the Commission shall retain jurisdiction of this action for the duration of the Settlement Agreement for the purpose of entering orders that may be necessary to implement and enforce the relief provided herein. 

C.             Effective Date and Term of Agreement

 

This Settlement Agreement shall be effective and binding on the parties for a period of three (3) years from the Effective Date of this Agreement at which time it shall expire and be without force and effect, except as noted below with respect to releases/bars, confidentiality provisions, and unless extended pursuant to the terms of Part III.A.   The confidentiality provisions, releases and bars on claims shall survive the Agreement. 

D.            Persons Covered by Settlement Agreement

 

1.             Definition of Class

 

Subject to the approval of the presiding Administrative Judge, the Parties agree to the certification of the following Class for purposes of settlement only:

All African American persons employed by NASA Goddard as GS-13 or GS-14 non-managerial, non-supervisory scientists or engineers at any time from April 19, 1991 to February 25, 2002, who were eligible for and did not receive promotions to the GS-14 or GS-15 grades.

         2.       Release/Bar of Claims   

In consideration of the promises contained herein, and the benefits provided or to be provided hereunder, this Settlement Agreement shall fully resolve, extinguish, and finally and forever bar, and the Class Agent and other Class Members hereby release, any and all Class Claims and Mandatory Joinder Claims (as defined in Parts II.A), in law or in equity, which any of them, their representatives, agents, heirs, executors, administrators, successors, or assigns, may have, may have had, or in the future may have against NASA Goddard (including, without limitation, any continuing violation allegations made after February 25, 2002that rely on evidence of violations occurring before February 25, 2002 arising from or relating to events that occurred prior to February 25, 2002).  

The doctrines of Res Judicata and collateral estoppel shall bind the Class Agent and all other Class Members (except those who have effectively opted out under the provisions of this Settlement Agreement) with respect to all Class Claims and Mandatory Joinder Claims that are known or unknown, actual or potential.   This Settlement Agreement may be pled as a full and complete defense to any subsequent action or other proceeding involving any person or party that arises out of the claims released and discharged by this Agreement.

As a condition precedent to the receipt of any relief under the terms of this Agreement, the Class Agent and Class Members shall, in consideration thereof, execute NASA Goddard’s Release and the Administrator’s Release, exactly as they appear in Exhibits 2 and 3 respectively.   

The Class agrees that the Complaint in this action, and any individual complaints or grievances filed by Class Members constituting Class Claims or Mandatory Joinder Claims, against NASA Goddard shall be dismissed in their entirety, with prejudice, on the Effective Date.  

The Class and the Class Agent also agree that the EEOC, its representatives, agents, heirs, executors, administrators, successors, or assigns, shall have no liability arising from any action relating to this Settlement.

E.       Denial of Liability  

 

NASA Goddard expressly denies any wrongdoing or liability whatsoever.   This Settlement Agreement represents the compromise of disputed claims.  It reflects the parties’ recognition that litigation of these claims would severely burden all concerned and require a massive commitment of time, resources, and money.    The Agreement does not constitute, and is not intended to constitute, and shall not under any circumstances be deemed to constitute an admission by either party as to the merits, validity, or accuracy, or lack thereof, of any of the claims in this case.   The sole rulings in this case, which were made by the Commission in connection with the Administrative Class Complaint, related to the procedural issue of whether a class should be certified by the Commission; no ruling was ever made on the merits of the claims or allegations of the Class.

Nothing in or related to this Settlement Agreement, including an action taken to implement it or any statements, discussions, communications, or any materials prepared, exchanged, issued or used during the course of the mediation or negotiations leading up to the Settlement Agreement may be introduced or used or admitted in any way, in any other judicial, arbitral, administrative, investigative or other proceeding of any kind or nature whatsoever as evidence of discrimination, retaliation, or any violation of Title VII, the common law of any jurisdiction, or any other federal, state or local law, statute, ordinance, regulation, rule or executive order, or any obligation or duty at law or in equity.   Documents, data, and information exchanged by the parties since the inception of the lawsuit may be used in this case solely with respect to enforcement of the Agreement, in the event necessary.

In the event that Final Approval of the Settlement Agreement is not obtained or this Agreement does not become effective or is deemed null and void, nothing herein shall be deemed to waive any of the Class’s claims or NASA Goddard’s objections and defenses, including but not limited to objections to provisional class certification, and neither this Agreement nor the presiding Administrative Judge’s preliminary or final approval hereof shall be admissible in any court regarding the propriety of class certification or regarding any other issue or subject of this case.

F.      Conflicts

Due to Class Counsel’s continuing representation of the Class, their receipt of confidential information regarding NASA Goddard during this case, and their continuing receipt of such confidential information during the term of this Agreement, Class Counsel agree not to undertake any representation (i) during the term of the Agreement that would create a conflict of interest; or (ii) at any time that would involve the use of NASA Goddard’s confidential information for purposes unrelated to the enforcement of this Agreement.

G.      Confidentiality and Return of Documents

 

Class Counsel acknowledge that during the course of this case they have received, and may hereafter receive in connection with the monitoring of this Agreement, confidential information regarding NASA Goddard and its personnel, including, without limitation, internal memoranda, personnel plans, programs, policies and procedures, computerized data, and other information.   The parties, their retained experts, their consultants and attorneys (and all other signatories), and the agents of each of them, shall continue to be bound by the terms of the confidentiality agreement throughout the term of this Agreement and thereafter.   The Class Agent, Mediation Representatives, Class Counsel, their experts and consultants and others retained by them, as well as the agents of each of them, hereby agree not to disclose any confidential information that may have been or may hereafter be received from NASA Goddard in connection with the litigation, mediation, or settlement of this case, including, without limitation, all information provided pursuant to the terms of this Agreement.   Class Counsel shall be responsible for advising their experts, outside consultants, and any other individual acting for, on behalf of, or at the request or direction of Class Counsel, including the Claims Administrator, of the confidentiality provisions of this Agreement and shall require that each such individual sign a confidentiality agreement substantially in the form of Exhibit 4, and shall promptly provide a copy of such signed agreement to counsel for NASA Goddard.

Counsel of record for each party shall, not later than thirty (30) days after the expiration of the three-year term of this Settlement Agreement, make available to counsel for the other party or destroy all documents (and copies of documents) and computer discs or data (and copies thereof) that were produced by the other party in the course of the litigation, mediation, or settlement of this case or the implementation of this Agreement, including all copies thereof that have been provided to or are in the possession of the party’s expert(s) or consultant(s).  Counsel for the parties are permitted to retain such information during the term of this Settlement Agreement solely for the purposes of claims administration, allocation of monetary relief to be paid from the Settlement Fund, and implementation and monitoring of compliance with this Agreement.

H.      Approval of Settlement Agreement as Written  

It is an express condition of this Settlement Agreement that the Class described in Part II.D.1 of this Agreement be bound by the body of this Agreement, and that it be approved by the presiding Administrative Judge as written.   The parties have bargained for the terms in this Settlement Agreement.   If the presiding Administrative Judge does not approve this Settlement Agreement as written, the party that is adversely affected by the disapproval of any provision of the Agreement may elect to file for reconsideration and/or to withdraw from the Agreement, which shall then be deemed null and void.  

I.              Interpretation of Settlement Agreement

 

1.      Nature of Agreement

This Settlement Agreement is a contract and shall, on approval by the presiding Administrative Judge, also constitute an order of the Commission, and all of its provisions shall be enforceable by the parties as an order of the Commission, (subject to the terms set forth in Part IV of this Agreement regarding Enforcement).

2.      No Displacement  

While triggered by claims of race discrimination, 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.

2.             No Modification of Title VII Requirements

Nothing in this Settlement Agreement may be taken as modifying either the statutory or regulatory procedures pertaining to initiating and maintaining administrative and judicial proceedings under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq ., or the federal civil service laws.  

3.             Payment for Fees, Costs and Expenses

Whenever this Settlement Agreement provides for NASA Goddard payment of any costs, fees or expenses (including, without limitation, attorneys’, experts’ and administrators’ fees, costs and expenses, but excluding the past attorneys’ fees and expenses to be paid from the Settlement Fund as provided in Part III.B of this Agreement), such payments shall be subject to the terms and conditions following, and any disputes regarding the same subject to the enforcement provisions of Part IV.

                  (a)    Detailed Invoice Required

Prior to any such payment, NASA Goddard shall be provided with a signed statement for such work, which statement shall describe in reasonable detail the work performed, the date(s) on which the work was performed, the identity of the person(s) who performed such work, the time expended, and the expenses incurred; provided, however, that nothing contained herein shall require the disclosure of information subject to the attorney-client privilege or any other legally recognized privilege.

                  (b)    No Entitlement to Unspent Funds

The purpose of NASA Goddard’s payment of fees, costs, and expenses is to compensate Class Counsel for work performed and to reimburse Class Counsel for certain specific, actual out-of-pocket expenditures that Class Counsel makes or would be required to make if NASA Goddard had not agreed to pay such fees, costs, and expenses.  The dollar amounts specified in provisions of this Agreement authorizing such NASA Goddard payments are intended to establish          an outside limit on NASA Goddard’s obligation to pay fees, costs, and expenses, even if the actual amounts of such fees, costs, and expenses incurred are greater than the amount of the dollar cap specified.   In the event that the amounts of fees, costs, and expenses actually incurred for a particular purpose are less than the maximum amount specified for that purpose for a particular year or for the term of the Agreement, any unspent funds for that purpose in one year shall carry forward one year to the next year; however they may not be used to pay any other fees, costs, or expenses, nor shall they carry forward beyond one year.    

III.                          RELIEF

 

A.       General Equitable Relief

1.      General Provisions

 

(a)        Purpose and Scope

 

The purpose of these equitable measures is to provide all NASA Goddard non-managerial, non-supervisory scientists and engineers, including Class Members, with advancement opportunities that are, to the greatest extent possible, based solely on merit.   To this end, the equitable relief described herein may encompass every Directorate, Code and their subordinate echelons at NASA Goddard.   However, nothing in the following provisions, including use of the word “employees,” is intended to require modification of NASA Goddard’s procedures and/ or policies except with respect to those associated with non-managerial, non-supervisory scientists and engineers eligible for promotion to GS-14 and/or GS-15 positions .     

(b)        Computation of Time

In computing any period of time prescribed or allowed under this Settlement Agreement, the period of time shall be computed in terms of calendar days unless otherwise noted.

(c)    Target Dates

The parties recognize the importance of timely implementation of the equitable relief provided under this Settlement Agreement.   The schedule set forth in this Agreement is the schedule for implementing the injunctive relief, and is based on the parties’ current best estimates of the time required for such implementation.   NASA Goddard will make good faith efforts to meet that schedule.   The parties recognize, however, that notwithstanding NASA Goddard’s good faith efforts, it may become necessary to extend the implementation schedule for some elements of the injunctive relief.   NASA Goddard agrees to provide reasonable advance notice, at least within thirty (30) days of the deadline barring unforeseen circumstances beyond Goddard’s control, to Class Counsel in the event that it is unable to meet any aspect of the implementation schedule, and the parties agree to cooperate in good faith in seeking to agree on necessary changes.    If the parties are unable to reach agreement and the extension contemplated by NASA Goddard on any item exceeds thirty percent (30%) of the total time permitted under this Settlement Agreement for that item, Class Counsel may bring the matter to the Commission’s attention for resolution pursuant to Part IV of the Agreement.   In the event that Goddard does not meet its implementation target dates under this Settlement Agreement, for any such item, the expiration of the Agreement for the provisions corresponding to the implementation of such injunctive relief shall be delayed by the identical length of time.  

The parties shall notify the Commission of any agreed modification of the schedule set forth herein that exceeds thirty percent (30%) of the total time permitted for any item, and of the corresponding extension of the term for the relevant Settlement Agreement part.   The Parties shall not be required to notify the Commission of any modification that is less than thirty percent (30%) of the total time permitted under the Agreement for implementation of any item.  

(d)    Selection of Independent Expert and Independent Mediation Expert

 

         Goddard has retained Dr. Elaine Pulakos of PDRI, Inc. as an Independent Expert to assist it in the implementation of the Settlement Agreement.   This Independent Expert shall assist in:   (1) evaluating the existing performance management system; and (2) developing and implementing a revised performance management system, pursuant to Part III.A.2 & 3 of this Agreement.  

         Goddard has also retained Edna Povitch of the Center for Dispute Settlement as an Independent Mediation Expert to assist it in the implementation of the Settlement Agreement.   This Independent Mediation Expert shall assist in:   (1) evaluating the existing alternative dispute resolution system for informal equal employment opportunity (“EEO”) complaints at Goddard; and (2) revising, and implementing such revisions pursuant to Part III.A.5 of this Agreement. 

If Goddard with reasonable justification decides to use another consultant to perform the requirements of this part of the Agreement, the selection(s) shall be governed by subpart “e” below.   Goddard shall be responsible for all fees and expenses relating to the Independent Expert and the Independent Mediation Expert.  

(e)    Outside Consultants

 

Wherever this Settlement Agreement results in the hiring of an outside consultant, the following procedures shall govern:   (1) Goddard shall provide Class Counsel with the names and curricula vitae of individuals responding to its request for proposal or otherwise under consideration by it; (2) Goddard shall identify its consultant of choice, taking into account suggestions, if any, by Class Counsel, and shall provide Class Counsel with the identity of the selectee and documentation or other information concerning the consultant’s qualifications, credentials, and experience; (3) Class Counsel shall review Goddard’s selection and provide any comments concerning the selection to Goddard within ten (10) days of receiving such information; (4) Goddard shall consider the comments of Class Counsel in moving forward with the retention of the outside consultant; and (5) if Class Counsel raises concerns about Goddard’s consultant of choice, and Goddard, having considered such concerns, decides to proceed with the retention of such consultant, Goddard shall so notify Class Counsel and shall provide Class Counsel with a good faith written justification for its decision.

2.             Goddard’s Performance Management System

A principal aim of NASA Goddard’s performance management system is non-discrimination and fairness to all employees.  A process to reform NASA Goddard’s performance management system to ensure compliance with this goal, subject to applicable federal law and regulations and collective bargaining agreements, is currently underway, and all parties agree that it should continue.

                  (a)    Schedule and Content

To expedite the reform process, NASA Goddard agrees to use it best efforts, and commit sufficient time and resources, to produce and implement a revised and objective, non-discriminatory performance management system within one year from the Effective Date; unless, following consultation with and approval by Class Counsel, and on recommendation of the Independent Expert, Goddard determines that this time period is inadequate.   In such circumstances, Class Counsel shall not withhold its approval unreasonably.   Goddard’s reliance on this provision shall be subject to the same principles for extending the duration of the Settlement Agreement as are set forth in Part III.A.1.c.  

For purposes of the Settlement Agreement, the performance management system encompasses all processes governing:  (1) accretion and career ladder promotions; (2) awards; (3) training; and (4) performance appraisals.  The revised process shall provide for, but is not limited to, objective measures of performance, application of standards consistent with those promulgated by the Office of Personnel Management, standardized evaluations and assessment forms, feedback to employees including in the form of annual reviews, performance goals, an appeals process, supervisory accountability, and training for NASA Goddard employees.  Additionally, a component of reviews, including for supervisors of Class Members, shall include an assessment of performance with respect to equal employment opportunity issues (“EEO component”) as a critical element in the performance appraisal process.    No manager or supervisor of Class Members shall be eligible for promotion for a period of one-year following the appraisal if he or she receives an unsatisfactory score on such component.  

(b)        Expert Consultation

An Independent Expert has been selected to provide consultation services in accordance with the principles of Part III.A.1-3 of the Agreement.   During the redesign process, the Independent Expert shall provide continuing advice and guidance to the team concerning standards and procedures for the purpose of ensuring fairness and non-discrimination in NASA Goddard’s performance management system.   Goddard shall work cooperatively and continually with the Independent Expert throughout the redesign process.  

When the NASA Goddard team, working with the Independent Expert, reaches an agreement regarding the performance management system redesign, and within six (6) months from the Effective Date, it shall forward the final redesign proposal to Class Counsel; unless, following consultation with and approval by Class Counsel, and on recommendation of the Independent Expert, NASA Goddard determines that this time period is inadequate.   In such circumstances, Class Counsel shall not withhold its approval unreasonably.  NASA Goddard’s reliance on this provision shall be subject to the same principles for extending the duration of the Agreement as are set forth in Section III.A.1.c. above.

On receipt of the redesign proposal, Class Counsel shall in turn evaluate the proposed revisions and provide comments and recommendations concerning them within 45 days.  If the Independent Expert believes that the NASA Goddard team is failing to adopt a significant recommendation or is seeking to adopt an inadequate measure or measures, she shall provide written comments and recommendations to NASA Goddard and Class Counsel.   Thereafter, the NASA Goddard team shall consider the comments and recommendations, and may only reject implementation of such recommendations if it can establish good faith reasons for believing that they will not result in greater fairness and non-discrimination in the NASA Goddard performance management system, or, if the cost to NASA Goddard of any particular recommendation is unreasonable in view of the benefits.  If Goddard does reject any recommendation by the Independent Expert, it shall promptly provide a comprehensive written explanation of its reasons to the Independent Expert and Class Counsel.   In the event, if any, Class Counsel disagrees with the bases for NASA Goddard’s rejection of recommendations, if any, then the Enforcement Provisions of this Settlement Agreement shall apply.

 


(c)    Standards Governing Review and Granting of Promotions

 

Beginning with the Effective Date and continuing under the revised performance management system, the factors to be considered in determining accretion of duty   promotions shall include the following.

                                                                            i.                   Accretions

Accretion of duties promotions are warranted only when an employee has assumed new duties or the nature of the employee’s work has changed, resulting in the need to reclassify that employee’s position to reflect the fact that the employee is functioning at a higher level.   Specifically, accretion of duties promotions are warranted and may be approved only in the following limited circumstances:   1) the employee’s position is to be reclassified because of enhanced duties and/ or responsibilities; 2) there is no recognized promotion potential beyond the higher grade to which the accretion of duties promotion is proposed; 3) the employee’s old position is absorbed into the new position; and 4) the employee continues to perform the same basic functions and the new duties and/or responsibilities represent an enhancement of the old duties that has occurred for a significant time, i.e., the time it would generally take for any qualified individual to become competent at the higher level of responsibility. 

In addition to the above, NASA Goddard adopts the following as guiding principles for accretion of duties promotions, and shall with the assistance of the Independent Expert, implement systems for effectuating each in its revised performance management process with a goal of ensuring equal opportunity for obtaining grade-enhancing work:

·       Supervisors and managers are expected to communicate regularly and openly with all employees within their area of responsibility about what job assignments are, or may become, available within their area of responsibility;

·       Supervisors and managers are expected regularly to solicit interest from all employees within their area of responsibility regarding taking on the duties of their work unit;

·       Supervisors and managers should assign duties so as to balance work among all similarly situated employees and accurately record such work as performed;

·       Supervisors and managers are expected to communicate regularly with all employees in their area of responsibility about new hires, departures, promotions, details, temporary assignments, changes in staffing and workload allocations; and

·       The performance evaluations of supervisors and managers shall include compliance with their obligations under these principles.

(d)        Individual Development Plans

Within sixty (60) days after the Effective Date, NASA Goddard shall disseminate a global e-mail message regarding the availability of Individual Development Plans (“IDP”s), and shall encourage the use of these career enhancement tools by both employees and supervisors.   Supervisors shall be required to offer employees a meeting at least once per year, to discuss and/or establish an IDP.   IDPs shall be signed by both the employee and supervisor, identify the career objectives of the employee, consistent with NASA Goddard’s mission, relevant assignments and training (on-the-job and NASA-sponsored), and any other grade-enhancing duties or responsibilities that are available.   NASA Goddard shall explore and implement ongoing methods of communicating with employees about IDPs, such as workshops, presentations at NASA Goddard seminars and meetings. 

Within one year after the Effective Date, and in consultation with Class Counsel, NASA Goddard shall develop and administer an employee survey designed to obtain candid views from employees on the IDP process, including whether the supervisor offered and provided a full and fair opportunity to establish a IDP, and if established, whether (1) the process was interactive and the supervisor provided information and guidance about opportunities available and appropriate to serve the employee’s career objectives; and (2) to what extent opportunities and job assignments were available that were consistent with the provisions of the IDP.  The surveys shall be confidential and employees will be informed that their individual responses will not be shared with their first-line supervisors.   Goddard shall administer the survey within sixty (60) days of each annual anniversary of the Effective Date, and shall provide the aggregate results of the survey to NASA Goddard division and directorate heads and Class Counsel, without employee name identification, not later than thirty (30) days after such results are tabulated.  

         3.       Training and Education

 

(a)        Goddard shall:

                                                                            i.                   in consultation with the Independent Expert, train its supervisors and managers in all aspects of the redesigned performance management system prior to its implementation, and shall train new managers and supervisors within three (3) months of their assignment of responsibilities as supervisors or managers;

                                                                             ii.                   in consultation with the Independent Expert, provide web-based or face-to-face training within three (3) months of implementation to its employees in all aspects of the redesigned performance management system and offer face-to-face training annually thereafter;    

                                                                               iii.                   train its supervisors and managers regarding the purpose and process of Individual Development Plans;

                                                                               iv.                   provide career enhancement training to employees, to include training on the effective preparation of IDPs and career development;

                                                                              v.                   in conjunction with an outside consultant, provide all supervisors and managers with EEO and diversity training, which shall incorporate training on bias awareness, perception, and job assignments.   Such training shall be completed within twelve (12) months of the Effective Date, and a refresher training provided to each manager or supervisor every two years after initial training.   New supervisors and managers shall receive such training within three (3) months of commencing supervisory or managerial duties and shall also receive refreshment training ;

(b)        In conjunction with the Independent Expert, and following consultation with Class Counsel, Goddard shall within six months of the Effective Date adopt and implement measures to make accessible to Class Members on a fair and non-discriminatory basis, participation in its “management-track” training programs, including but not limited to, the following Goddard Programs:   Council for Excellence in Government; Project Management Development Emprise; Systems Engineering Education and Development (“SEED”) Program; Executive Leadership Program for Mid-Level Employees (formerly Women’s Executive Leadership Program); and the following Agency Sponsored Programs: Senior Executive Service Candidate Development Program (“SESCDP”);   Project Management Development Process (“PMDP”); PMDP/ Accelerated Leadership Option (PMDP/ALO); and Professional Development Program; and the following NASA Goddard development foundation courses:   Goddard Leadership Education Series (GLES); Technical Managers Training (TMT); and Management Education Program (MEP).  

4.      Reductions in Force

In the event of a Reduction in Force (“RIF”), NASA Goddard shall provide an informational session to all affected employee(s) advising such employee(s) of their rights under federal laws and regulations and relevant collective bargaining agreements.   Such session shall be provided sufficiently in advance of such RIF as to provide the employee(s) with meaningful opportunity to exercise such rights if so elected.

5.      EEO ADR Process

NASA Goddard agrees to evaluate and redesign its alternative dispute resolution (“ADR”) process for informal equal employment opportunity (“EEO”) disputes.   An Independent Mediation Expert has been selected in accordance with Part III.A.2 of this Agreement to provide consultation services during this process at NASA Goddard’s expense.    NASA Goddard shall work cooperatively and continually with the expert throughout the evaluation and redesign process.   The redesigned process shall continue to offer alternative dispute resolution services to EEO complainants at the informal EEO complaint stage – either through the EEO Office, or an Office of Dispute Resolution.    Selection of the mediation service provider for the redesigned process is subject to Part III.A.1.d of this Agreement.  

When the NASA Goddard team, working with the Independent Mediation Expert, reaches an agreement on the ADR redesign process, and within six (6) months from the Effective Date, it shall forward the final redesign proposal, including plans for its implementation, to Class Counsel, who shall within forty-five (45) days evaluate the Independent Mediation Expert’s findings and recommendations for the redesigned system and provide comments and recommendations concerning them.  Class Counsel may consult with the Independent Mediation Expert during the evaluation process.   Thereafter, the Goddard team shall consider the comments and recommendations.  In the event, if any, Goddard decides to proceed notwithstanding Class Counsel’s comments and recommendations, Goddard shall so notify Class Counsel and provide Counsel with a good faith written justification for its decision.   Goddard shall implement the redesigned ADR process within twelve (12) months from the Effective Date.

6.             Monitoring

 

(a)                 Monitor Roles

 

NASA Goddard’s internal monitor of compliance with the terms of this Settlement Agreement shall be the Associate Center Director, Goddard Space Flight Center.   The Associate Director may delegate tasks consistent with the provisions of this Agreement, including to an outside consultant; except that the Associate Director shall be familiar with all issues presented at, and attend, all meetings convened under subpart “d” below.

(b)                 Publication of Promotions

 

At least on a semi-annual basis, NASA Goddard shall publish announcements on all promotions.   Such announcements, posted on NASA Goddard’s Office of Human Resources (“OHR”) website for employees – with a clearly designated link on the OHR homepage -- shall include statistical data on the demographics of promotions, as well as the identities and branch locations of scientists and engineers promoted to the GS-14 and GS-15 levels, and the type of promotion received.  

(c)                  Data and Analysis

 

During the term of the Settlement Agreement, NASA Goddard and Class Counsel shall statistically monitor the revised performance management system to determine if there is a legally statistically significant disparity between the promotion rates of African American and Caucasian scientists and engineers to the GS-14 and GS-15 levels.  Class Counsel shall also monitor the development and efficacy of Goddard’s compliance efforts under the injunctive provisions of this Settlement Agreement.   In order to do so, NASA Goddard shall provide to Class Counsel during the three-year period of the Settlement Agreement, the documents and information outlined in subsections “i” and “ii” below.

On receipt, the Class’s statistical expert will review the computerized data to determine if there is a statistical disparity and report to Class Counsel.   Based on a review of the information by Class Counsel, Class Counsel may make recommendations to NASA Goddard for further remedial action.   If NASA Goddard and Class Counsel do not reach agreement on resolution of such recommendations, the Enforcement Procedures set forth in Part IV shall apply.

i.       Information and Documentation

In addition to the information and recommendations specified elsewhere in this Settlement Agreement, NASA Goddard shall provide to Class Counsel during the three-year period of the Agreement, the following documents and information:

·       For each scientist or engineer in the GS-13 through GS-15 levels, semi-annual personnel and promotion statistics in computer-readable format on the sixth (6th), twelfth (12th), eighteenth (18th ), twenty-fourth (24th), thirtieth (30th), and thirty-fourth (34th)month anniversaries of the Effective Date, encompassing the following:

o       At least one unique identifier, such as social security number or an employee identification number (if the requested data is in more than one database, the identifier for each individual must be the same in each database so the records for various databases can be linked);

o       Race;

o       NASA hire date;

o       Job history (includes each:  job title held by the employee throughout his/her tenure and the dates of any changes in title; GS-level; salary; type of position (whether slash or not); award; detail; promotion; type of promotion (whether accretion or career ladder); and Code;

o       Performance evaluation ratings; and

o       Education;

·       A list of the names and grades of each scientist or engineer reviewed under the current employee promotion eligibility review undertaken pursuant to Part III.C.2 of this Agreement, containing the same unique identifier as above, and the results of the review, on the ninety (90) day, five (5) month, and twelve (12) month anniversaries of the signing of the Agreement;

·       Semi-annual data (as scheduled above) on the number of EEO complaints.   This information provided shall be statistically aggregated information concerning complaints; nothing in this provision requires NASA Goddard to reveal the identities of persons involved in the EEO complaint process;

·       Annual data in computerized format on the number and ethnicity of participants in each of NASA Goddard’s “management track” training programs, as defined in Part III.C.4 of the Agreement.  Such data shall use at least one identifier common to the personnel and promotions statistics data, e.g., social security number, such that the databases can be linked (on the twelfth (12th), twenty-fourth (24th ), thirty-fourth (34th) month anniversaries of the Effective Date);

·       All training materials used pursuant to Part III.A.3 of this Agreement, semi-annually;

·       Summaries of any EEO complaint processing and/or mediation surveys conducted pursuant to the ADR process, semi-annually, redacted if necessary for compliance with the Privacy Act; and

·       The results of the IDP surveys administered to employees (within thirty (30) days after the aggregate survey results are tabulated).

                           ii.      Items to be Provided

Class Counsel may request additional existing documents and information not listed above during the three-year period of this Settlement Agreement for consideration in making its recommendations.   If NASA Goddard approves such request, Class Counsel shall be provided with access and sufficient time to inspect the above records within thirty (30) days of its written notice to NASA Goddard.   If NASA Goddard denies such a request, it shall provide Class Counsel with a good faith written statement of its reasons for denying the request as unnecessary for monitoring and recommendation purposes.  

                           iii.     Privacy Act

Nothing in this Settlement Agreement shall be construed to impose an obligation on Goddard to make disclosures of information, absent an order from the presiding Administrative Judge, that violate the Privacy Act, 5 U.S.C. § 552a et. seq.  

(d)                 Periodic Meetings

 

Class Counsel and the Associate Center Director shall meet every three months during the first year following the Effective Date of the Agreement, and every six months thereafter, to discuss and resolve any outstanding issues with respect to implementation and compliance with this Settlement Agreement.   Any issues that may arise during the term of the Agreement with respect to individual Class Members shall be handled according to the applicable procedures and processes identified in Exhibit 1 and the Enforcement Part of this Agreement; however nothing in the foregoing shall prohibit Class Counsel and the Associate Director or her designee from resolving such matters informally if they are willing and so able.  

Two representatives of the Class are entitled to attend such meetings, but may be recused for employee-specific discussions.   Two additional representatives from NASA Goddard are entitled to attend such meetings, including representatives from the Office of Human Resources and the Office of Chief Counsel.   Any information obtained by Class Counsel or participating Class Members during these sessions shall be treated as confidential information pursuant to Part II.G herein and shall not be used for any purpose except for enforcement of this Settlement Agreement.  

(e)        Reports to the Presiding Administrative Judge

 

Class Counsel shall file a written report with the presiding Administrative Judge every twelve (12) months concerning the implementation of the provisions of the Settlement Agreement, and shall serve a copy of such report on the Associate Center Director and Goddard’s Counsel.   In turn, NASA Goddard’s Counsel may file a written reply with the presiding Administrative Judge, if deemed necessary by NASA Goddard.   If requested by the presiding Administrative Judge, Class Counsel and Goddard’s Counsel shall appear before the presiding Administrative Judge to provide any additional information requested by the presiding Administrative Judge. 


B.             Monetary Relief

 

1.      Creation and Administration of Settlement Fund

 

For the purpose of satisfying and settling all of the eligible claims of the Mediation Representatives, Class Agent, Class Members and Class Counsel, and if fully approved by the presiding Administrative Judge, NASA Goddard shall deliver to Class Counsel via electronic transfer into the Settlement Fund (the “Fund”) the sum of three million seven hundred fifteen thousand two hundred seventy-eight dollars ($3,715,278.00) within thirty (30) days after Final Approval.  The Fund shall be established as a qualified Settlement Fund under Part 468B of the Internal Revenue Code and shall be administered by Maia Caplan and Jessica Parks, who shall be the Settlement Fund Administrators and Trustees (“Administrators”) in accordance with Administrative Order No. 1, attached hereto as Exhibit 6.

The above deposit shall settle all Class Member claims for monetary relief, including compensation for lost wages and emotional distress, and is the sole payment that NASA Goddard shall be required to make to settle this case and the foregoing claims except for:   (1) payment to the Claims Administrator in an amount not to exceed fifteen thousand dollars ($15,000) for distribution of monetary awards and other services as set forth in Part III.B by the Claims Administrator; (2) payment to the class expert in an amount not to exceed fifteen thousand dollars ($15,000) for computation of monetary and promotional awards by the Class Expert; (3) unless the parties agree otherwise after negotiation or mediation, or unless the presiding Administrative Judge orders in enforcing this Agreement, payment of consulting fees required to implement the Agreement including for the Independent Expert and Independent Mediation Expert in a total amount not to exceed five hundred thousand dollars ($500,000); (4) fees for mediators relating to enforcement matters; (5) payment of the employer portion of Federal Insurance Contribution Act (“FICA”) and taxes as provided herein and in Administrative Order No. 1; (6) required employer contributions to OPM for retirement annuity benefits; (7) Class Counsel fees and expenses for administration of the Fund and for monitoring of the Agreement post-Final Approval, in an amount not to exceed sixty-five thousand ($65,000) for the first year of the Agreement and fifty thousand dollars ($50,000) per year thereafter; (8) Class Counsel fees and expenses for enforcement of the Agreement as provided for under Title VII and determined reasonable by the presiding Administrative Judge on presentation of a fee petition; (9) Class Counsel fees and expenses for appeals of or challenges to the Agreement, if any, in an amount not to exceed fifty thousand ($50,000) in total; and (10) pay raises and prospective and retroactive annuity benefits pursuant to promotions received under Part III.C of this Agreement.   Nothing in the foregoing shall release NASA Goddard, however, from expending the necessary resources to implement internally the equitable measures mandated by Part III of the Agreement.  

From the deposits and any income earned thereon, the Class Agent and Class Members may receive payments, and Class Counsel and all other non-Class Member payees to which Class Counsel is liable shall be paid all fees and reimbursed for expenses incurred, except as set forth immediately above.   Tax reserves and an appeal fund may be created and set aside before allocating the Fund among eligible Class Members, claimants or payees, all in accordance with Administrative Order No. 1, the terms of which are incorporated herein and made a part of this Settlement Agreement.  

The portion of the Fund designated to pay the claims of Class Members for back pay, emotional distress and prejudgment interest shall consist of two million two hundred eighty-six thousand, four hundred fifty-nine dollars ($2,286,459.00) and any income derived thereon and shall be known as the “Claims Fund,” less any amount specified for the Tax Reserves and Appeal Fund.   Thirty-three percent (33%) of the Claims Fund shall be allocated to pay claims for back pay, forty percent (40%) shall be allocated to pay claims for emotional distress, and twenty-seven percent (27%) shall be allocated to pay prejudgment interest with respect to the back pay awards.   The portion of the Fund designated to pay the special service awards of the Class Agent and Mediation Representatives shall consist of five hundred thousand dollars ($500,000.00) and any income derived thereon and shall be known as the “Contribution Fund.”   The portion of the Fund designated to pay and/or reimburse Class Counsel and other non-Class Member payees to which Class Counsel is liable their reasonable fees, expenses and costs, shall be known as the “Litigation Fund.”   The Litigation Fund shall consist of nine hundred twenty-eight thousand eight hundred nineteen dollars ($928,819.00).    Income as to all portions shall include income earned by the Fund pending distribution from it.   The Administrators shall invest all portions of the Fund in interest-bearing United States Treasury securities, securities of agencies of the United States backed by the full faith and credit of the United States, Repurchase Agreements, and/or other interest-bearing instruments or accounts, pending distribution from the Fund.  All portions shall be governed by Administrative Order No. 1.

The Litigation Fund shall cover fees, costs and expenses, incurred in connection with this litigation by Class Counsel through the date of Final Approval of this Settlement Agreement.  Notwithstanding the above, attorneys’ fees, costs and expenses incurred by any person objecting to, or making a collateral or direct attack on the Agreement or on the actions of the Administrators of the Fund, shall be borne by that person and shall not be chargeable to either NASA Goddard or the Fund.

The Fund, including all of its portions, shall be deposited by NASA and administered by the Administrators as outlined in Administrative Order No. 1 within thirty (30) days of Final Approval.   If, by whatever means, the Order finally approving the Settlement Agreement does not become a final order of the Commission, the Fund and any interest thereon shall revert to NASA Goddard.  

2.      Administrators’ Administrative Responsibilities

 

In administering the Fund, the Administrators shall comply with the terms of the Administrative Judge’s Administrative Order No. 1, as that order may in the future be supplemented or amended by the presiding Administrative Judge to administer and carry out the purposes of the Agreement, provided that no such supplementation or amendment shall alter the terms of the Settlement Agreement, including Goddard’s payment obligations.

3.           Exclusive Responsibility of Class Counsel

 

The identification of Class Members to receive monetary relief and distribution of

such relief is the exclusive province of Class Counsel, acting on behalf of the Class, and shall be carried out pursuant to the procedures set forth in subparts 4 and 5 below following approval by the presiding Administrative Judge.   NASA Goddard shall have no role in, nor shall it be held liable for, determining the distribution methodology, the determination of relief to be accorded each individual, or other aspects of the monetary awards process, with the exception that NASA Goddard shall as set forth in other parts of this Agreement:   (1) provide data relating to each Class Member’s employment with it, for use in the distribution formula; (2) provide notice of the Agreement, the Fairness Hearing, and a copy of the Agreement, to Class Members; (3) provide notice of the Agreement to all current non-Class Member NASA Goddard non-managerial, non-supervisory scientists and engineers at the GS-13 and GS-14 levels; (4) calculate and pay all employer’s portion of OPM-ordered back annuities; (5) pay to the Fund the employer portion of FICA and of any other taxes required by law within forty-five (45) days of receiving from the Administrators and/or Class Expert the portion of monetary relief allocated to wages for each Class Member; (6) pay the Claims Administrator and Class Expert consulting fees and expenses as previously limited; and (7) pay Class Counsel administrative, monitoring, and appeals fees and expenses, as previously limited.   Nothing in this subpart is intended to relieve NASA Goddard of obligations under this Agreement that are specifically enumerated elsewhere in the Agreement.

4.             Method of Identification of Class Members to Receive

Monetary Relief                                                    

 

         Class Counsel shall arrange for allocation of the Claims Fund and the Contribution Fund in accordance with the distribution methodologies set forth in Exhibit 5 and the provisions of this Agreement.  Each Class Member shall receive the amounts calculated according to the distribution formula and additionally, the Mediation Representatives shall receive a pro rata share of the Contribution Fund.   The Claims Administrator shall be responsible for distributing the monetary relief in accordance with the distribution formula and the provisions of this Agreement following approval by the presiding Administrative Judge and the Administrators.     

         Calculation of amounts due each Class Member according to the formula set forth in Exhibit 5 shall be performed by the Class Expert.   In accordance with Exhibit 5, NASA Goddard shall provide Class Counsel and the Class Expert with personnel information as may be necessary to perform the requisite calculations to the extent NASA Goddard has not previously provided such information; all such information shall be treated as confidential information pursuant to the provisions of this Agreement.

5.      Distribution of Monetary Awards to Class Members

          Except with respect to calculation of the amounts due each Class Member (to be calculated by the Class Expert), the administration and distribution of monetary awards shall be handled by the Claims Administrator, which Class Counsel has retained at NASA’s expense, to inter alia : (i) locate Class Members who are no longer employed by NASA Goddard and who NASA Goddard, after reasonable efforts, has been unable to locate; (ii) answer procedural questions from Class Members about the claims process under this Agreement through the use of a toll-free telephone number; (iii) provide notice to each Class Member of the proposed monetary award to be paid to that Class Member as determined by the Class Expert, and the amounts to be withheld from that payment, as well as release forms;   (iv) address purely arithmetic challenges to award amounts; (v) procure executed releases and W-9s from each Class Member; and (vi) withhold and deposit all required income and employment taxes, including the employer portion of FICA and other taxes; (vii) prepare, file and pay the taxes associated with any required tax returns of the Fund; and (viii) prepare and distribute funds and W-2 and 1099-MISC tax forms to Class Members.   NASA Goddard shall (1) provide notice of the Agreement, the Fairness Hearing, and a copy of the Agreement, to Class Members; and (2) provide of notice of the Agreement to all current non-Class Member NASA Goddard non-managerial, non-supervisory scientists and engineers at the GS-13 and GS-14 levels.

         If a Class Member who is entitled to monetary relief under this Settlement Agreement is deceased at the time of such distribution, the amount payable to such deceased Class Member shall be paid to his or her estate.   If the Claims Administrator determines that there is insufficient information or proof regarding the deceased person’s estate to permit such payment, the deceased person’s share shall be distributed to the remaining Class Members on a pro rata basis.

                  6.      Tax Consequences Of Monetary Relief

         NASA Goddard shall retain responsibility to pay the employer share of FICA and any other taxes as required by law on monies paid from the Fund.   At least forty-five (45) days prior to making a distribution to a Class Member, the Administrator and/ or Class Expert shall provide NASA Goddard with the amount of the distribution allocable to wages, and the amount of the employer portion of FICA and other taxes on such wages.   Within forty-five (45) days of the receipt of such information, NASA Goddard shall deposit the amount into the Fund.   The Claims Administrator shall deduct federal, state, and local taxes, employee retirement account contributions, Medicare taxes, and any other routine payroll deduction required by law from any amounts paid to Class Members, and shall deposit any withheld taxes along with the employer portion of FICA and any other taxes as required by law.   For purposes of determining withholding requirements and the employer portion of FICA and other taxes, awards made to the Class Agent and other Class Members from the Claims Fund shall be deemed 40% compensation for emotional distress, 33% backpay, and 27% pre-judgment interest; however, Class Members should consult their tax advisors in connection with this settlement concerning any estimated or additional tax payments that may be required or advisable.  Attorneys’ fees shall be deemed not taxable to the class.   Neither NASA Goddard, Class Counsel, nor the Fund or Claims Administrators make any representation nor express any opinion as to the final taxability of the payments made to the Class Agent, any other Class Members, or any other recipient.  Each recipient of an award shall be solely responsible for making payment to the appropriate taxing authorities, federal, state, and local, if any, for any additional employee tax liability on distributions, including liability resulting from any underpayment of taxes from the calculations performed by the Claims Administrator, or for seeking refund of any overpayment of taxes, provided, however, that NASA Goddard shall pay to the Fund any additional employer portion of taxes, interest or penalties determined to be owed on account of reclassification by the Internal Revenue Service or a court of any portion of a distribution as wages.

C.             Promotional Relief

 

A minimum of twenty-two (22) promotion awards, and ten (10) participations in the Accelerated Leadership Program, shall be allocated amongst current, retired or retirement eligible (who have spent five (5) years or more at NASA Goddard immediately prior to retirement and are willing to retire) members of the Class according to the processes described below.   No individual Class Member shall receive under any circumstance more than two promotion awards up to a GS-15.  

The identification of retired or retirement-eligible Class Members to receive promotion awards is the exclusive province of Class Counsel, acting on behalf of the Class, and shall be carried out pursuant to the procedures set forth below following approval by the presiding Administrative Judge.    NASA Goddard shall have no role in determining the distribution methodology, or the proportion of relief to be accorded each individual.   The determination of the methodology for distributing and distribution of promotion awards to current employees shall, however, be the exclusive responsibility of NASA Goddard, to be carried out consistent with the provisions herein.

1.      Relief to Qualified Retired and Retirement-eligible Class Members                                                             

 

The parties have agreed that there shall be twelve (12) retroactive promotion awards to Class Members who are retired, or who are retirement eligible and have spent five (5) years or more at NASA Goddard immediately prior to retirement and are willing to retire within thirty (30) days of receiving promotion awards.   The following procedures shall be used for identifying Class Members to receive promotion awards and for distributing and implementing such awards.  

(a)        Method of Identification of Class Members

 

Class Counsel shall determine retired and retirement-eligible Class Member eligibility for promotion awards as described in Exhibit 1, and in accordance with the methodologies set forth therein.   Calculations concerning eligibility shall be performed by the Class Expert.   NASA Goddard shall provide the Class Expert with the information specified in Exhibit 1, as may be necessary to perform the requisite calculations, within fifteen (15) days of Final Approval.   All such information made available to Class Counsel and their Expert shall be considered Confidential Information.   Class Counsel shall thereafter identify the Class Members to receive promotion awards in accordance with the procedures set forth in Exhibit 1.

         (b)     Implementation of Promotion Awards

Promotion awards under this subpart shall be implemented within sixty (60) days of the Effective Date of this Settlement Agreement or within sixty (60) days of the conclusion of the procedures described in Exhibit 1, whichever comes later.   Such awards shall be retroactive to five years from date of retirement, and shall consist of an initial award such that the Class Member’s pay at the higher grade rate shall be the equivalent of a two-step increase in the grade from which he or she was promoted, plus the automatic steps that would have accrued within the five years.  

Class Members receiving a promotion award under this subpart shall, prior to implementation of such award, execute a release waiving any additional direct payments for back pay from Goddard.   Such release is set forth in Exhibit 2.   The Release permits NASA Goddard and the Class to allocate funds for back pay liability to the Claims Fund, which amount has been negotiated and will be distributed amongst the entire Class according to the formula set forth in Part III.B.4-5 above, and not directly to the individual recipients of Promotion Awards.

2.             Relief to Current Employee Class Members

The parties have agreed that there shall be a minimum of ten (10) promotions accorded to current employee Class Members who are not eligible for retirement or elect not to retire.  The following procedures shall be used for identifying Class Members to receive promotion awards and for distributing and implementing such awards.  

(a)        Method of Identification of Class Members and Implementation of Awards

 

         NASA Goddard shall determine current Class Member eligibility for promotion awards in accordance with the methodologies set forth herein.  

         Within seventy-five (75) days of Final Approval of this Agreement, the Director of NASA Goddard’s Applied Engineering and Technology Directorate (“AETD”) shall complete a review of the promotion potential of each current employee Class Member who has one year or more time-in-grade and notify each Class Member of the review results.  Within thirty (30) days of Final Approval, Branch Heads shall prepare promotion packages for all Class Members and provide them to the Director of AETD, who may consult with other Directors of regarding the promotion candidates, if needed.  

         Any Class Member determined to be immediately ready for promotion as a result of the review shall be promoted within five (5) months of Final Approval of the Agreement, or sixty (60) days after the Effective Date, whichever comes later.   For Class Members who are determined to be ready for promotion within twelve (12) months of Final Approval, NASA Goddard shall provide them with near-term concentrated training and work assignments that, if successfully completed, shall result in those Class Members being promoted within the twelve-month period, or sixty (60) days after the Effective Date, whichever comes later.  

         Within twelve (12) months of Final Approval, or sixty (60) days after the Effective Date, whichever comes later, NASA Goddard, through its Directors of, shall review the promotion potential of all scientists and engineers at the GS-13 & 14 levels who are not Class Members and who have eight (8) years or more time-in-grade and promote those who merit promotion. 

         NASA Goddard shall provide Class Counsel with data on the promotions of Class Members and non-Class Members under this procedure as set forth in Part III.A.6 of this Agreement.  

3.             Relief to Class Agent

Class Agent Walter Flournoy shall receive one of the minimum of ten promotions accorded current employee Class Members if he elects to remain as a current employee at NASA Goddard and not to participate in the awards procedures set forth in subpart 1 above for retired and retirement eligible Class Members.   In this case, the award shall be defined identically to those under subpart 2 above for current employees, except that Mr. Flournoy’s award shall not be subject to the review process and is automatic and is given in recognition of his service as Class Agent.  

The Class Agent shall notify NASA counsel in writing of his election decision within forty-five (45) days of Final Approval of this Agreement.   If the Class Agent fails to so notify NASA of his election, he shall be deemed to have elected to remain a current employee for purposes of distributing the promotion awards under this Agreement.

4.             Guaranteed Participation in Accelerated Leadership Program

In addition to the above, NASA Goddard shall identify at least ten (10) additional Class Members for guaranteed participation in its Accelerated Leadership Program (ALP).  Under this program, the designated Class Members shall receive training and be teamed with NASA Goddard senior leaders for up to two-years, which training shall commence when the ALP commences operation in the Fall of 2002.   If the Class Members successfully complete the Accelerated Leadership Program, they shall be reassigned to a full performance level of GS-14.

IV.          ENFORCEMENT

 

In the event of a material breach of this Settlement Agreement, encompassing the breach of any part herein whether expressly designated as subject to Enforcement or not, the following principles and procedures shall apply; except that the parties shall be entitled to seek administrative enforcement of this Agreement with respect to Target Dates immediately after pursuing the process set forth Part III.A.1 on Target Dates and, with respect to the final six (6) months of the Agreement, immediately.  

A.             Negotiation and Mediation

 

Prior to instituting any proceedings to enforce the provisions of this Settlement Agreement, Class Counsel shall provide written notice to the Associate Director and NASA Goddard Counsel, that specifically sets forth the ways in which Class Counsel believes that NASA Goddard is in violation of the Agreement and citing evidence in support thereof.   If such notice is provided between three and thirty days prior to a meeting scheduled pursuant to Part III.A.6.d above, the issues shall be placed on the agenda for such meeting.   If such notice is provided thirty (30) or more days prior to a scheduled meeting, then at either party’s election, the issues that are set forth in the notice may be discussed at a meeting specially to be held within twenty (20) days of such notice.  

The parties will attempt in good faith to resolve all enforcement issues through discussion and negotiation.  If the parties are unable to resolve an issue raised in a written notice through discussion and negotiation, then NASA Goddard will provide a formal written response to Class Counsel within fifteen (15) days of the meeting at which the issue is discussed.   The parties will participate regarding any unresolved enforcement issues in mediation with ADR, Associates L.L.C. within thirty (30) days of the date that a discussion is held on the issue.   Mediation will be discontinued if the issue is not resolved within thirty (30) days of initiation of meditation, unless the parties mutually agree to extend this period.  If the parties are unable to resolve an issue through mediation, or the dispute exists in the final six months of the Agreement, then either party may pursue enforcement pursuant to 29 C.F.R. Section 1614.504.  

V.      PUBLICITY

 

         In addition to the promises of confidentiality expressly set forth in Part II.G, the parties have negotiated and will issue Joint Press Releases that shall be made available to the news media following the presiding Administrative Judge’s preliminary and final approval of this Settlement Agreement, subject to any necessary revision agreed on after final approval to reflect final approval dates, proceedings, and provisions.   No counsel shall make any written or oral statements at any time that are inaccurate and/or inconsistent with the Joint Press Release (and any revisions thereto on final approval), nor shall Class Counsel advise or in any manner promote a Class Member to make an inconsistent statement.

VI.    SEVERABILITY

 

Except as set forth below, if after Final Approval any term or provision of this Agreement, or the application thereof to any person or circumstances, is held to any extent to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held to be invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.   Notwithstanding the above, if (1) all of the monetary relief provisions in Part III.B; or (2) all of the   equitable relief provisions in Part III.A & C; or (3) the release/bar provisions in Part II.D.3 of this Agreement are held to be invalid or unenforceable, the entire Settlement Agreement shall be null and void.

VII.       COLLECTIVE BARGAINING

Consistent with the Federal Service Labor-Management Relations Act, 5 U.S.C. Chapter 71, the parties acknowledge that NASA Goddard’s collective bargaining partners, the Goddard Engineers, Scientists and Technicians Association (“GESTA”) and the American Federation of Government Employees (“AFGE”) must be notified of any proposed changes to agency personnel or EEO policies covered by GESTA’s or AFGE’s collective bargaining agreements and that prior to implementation, any changes in policy impacting on provisions of the collective bargaining agreements may be negotiable.    As such, GESTA and AFGE were notified of the negotiation sessions leading to this Agreement, and participated in several such sessions.  

VIII.GOVERNING LAW

 

The parties agree that the validity, construction, and enforcement of this Agreement shall be governed by federal law.  

 


IX.    BINDING AGREEMENT

This Settlement Agreement is binding on all parties and their successors, assigns, representatives, and trustees.

AGREED:

For the Class:

 

________________________               _______________________

Walter Flournoy                                      Date

Class Agent

 

 

                                                      ________________________     

Maia Caplan                                            Date

Kator Parks & Weiser, P.L.L.C.



                                                      ________________________

Jessica Parks                                           Date

Kator Parks & Weiser, P.L.L.C.

1020 19th Street, NW, Ste. 350

Washington, DC 20036

 

For NASA Goddard:

 

 

                                                                                         

A. V. Diaz                                                Date                                      

Director

NASA Goddard Space Flight Center

Code 100

Greenbelt, MD  20071

 

 

                                                                                         

Dillard Menchan                                         Date

Chief Equal Opportunity Program Office

NASA Goddard Space Flight Center

Code 120

Greenbelt, MD  20771

                                                                                         

Dorothy Kerr                                            Date

Office of the Chief Counsel

NASA Goddard Space Flight Center

        Code 140

        Greenbelt, MD   20771



[1] Although not formally named as class agents in the administrative complaint, Class Members Patrick McClain, William Weston and Leroy Brown, all retired during the liability period, participated in the mediation sessions as they had worked with Mr. Flournoy in prosecuting the complaint from its inception.   An additional Class Member, William Reaves, a current NASA Goddard employee, was brought into the mediation to broaden the representation of the interests of Class Members.