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,
v.
Sean O’Keefe, Administrator
National Aeronautics and
Space Administration,
Agency.
___________________________________
Agency No. NCN-92- GSFC-F064
EEOC No. 120-A2-1267X
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
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
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
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
IX. BINDING
AGREEMENT
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.
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.
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