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Participants’ Roles and ResponsibilitiesCyrus SalazarERCD
Tami TrostOGC
Successful ADR Sessions
Secretary’s Vision
Not only to understand that there will be zero tolerance for any form of discrimination, but to ensure that this standard is maintained throughout the Department
We must all strive to create an inclusive environment in which every employee, applicant, customer, constituent, & stakeholder is respected, trusted, & valued
ADR at the USDA ERCD provides policy &
oversight of ADR throughout the Department
17 agencies with either separate or consolidated ADR programs
ERCD has overall responsibility for AHA rating and rankings for agencies
Tenets of ADR Voluntariness Quality/Integrity of process Confidentiality Neutrality Self-determination
What Constitutes a Successful Mediation? Maintaining tenets of ADR Commitment to ADR model Getting the parties to the table
Agreement to Mediate Good faith
It is NOT about resolution rate
Partnership Agency leadership Stakeholders Work groups Collective Bargaining Units Rural America
Local State Federal
Resolving Official Cadre Designed to offer agencies alternative
Resolving Officials (RO) to assist in resolving EEO complaints
Comprised of senior leaders across USDA agencies
Fully vetted & trained in RO role
Background Federal sector employment discrimination (EEO) complaints:
pre-complaint (informal) & formal stages
EEOC requires agencies to make alternative dispute resolution (ADR) available during both the informal and formal stages of the EEO complaint process - 29 CFR 1614.102(b)(2)
Aggrieved persons in the informal stage must be given the choice between ADR & EEO counseling in cases where the agency has agreed to offer ADR - 29 CFR 1614.105(b)(2)
Agency’s ADR procedures should include assurance that “the agency will make accessible an individual with settlement authority” and that “no responsible management official or agency official directly involved in the case will serve as the person with settlement authority.” EEOC Management Directive (MD)110, Chapter 3, VI(A)(9)
Authority of the ASCR Assistant Secretary for Civil Rights
(ASCR) has broad authority from the Secretary to resolve any EEO complaint filed against the Department
7 C.F.R. § 2.25(a)(16)
Resolving Official Cadre carries delegation from the ASCR to resolve a specific complaint on behalf of the Secretary
ADR at USDA
If an aggrieved person/complainant accepts ADR offer: (1) management must participate, (2) all parties must participate in good faith, and (3) an individual “with authority to fully resolve the matter on behalf of the agency or entity must be in attendance or readily accessible to the parties” during the ADR proceeding
DR 4710 / DM 4710 Last updated in 2006 Comprehensive revision Provides Departmental guidance on ADR Involved stakeholder input OGC / Union / Departmental review The offer of ADR and ADR participation
are mandatory for informal EEO complaints for agencies
DR 4710/DM 4710 The offer of ADR and ADR participation
are mandatory for informal EEO complaints for agencies, with minor exceptions
However, the agency gets to choose the method of ADR
Not every case is appropriate for mediation, must evaluate on a case-by-case basis and consider other methods
Agency ADR Settlement Official
2 Key Components Authority to Settle
Clear authorization Scope of authority/parameters/limits
Will/Incentive to Resolve Agency attitude/philosophy Ability to be objective but not neutral
Absence of bias No conflict of interest (e.g., involvement in
case)
Conflict Complaint ProcessComplaints filed against:
Agency HeadsCivil Rights Directors and their direct reportsAll OASCR employeesOSEC employees including Under Secretaries
Naming the official is not enough. They must be directly involved in the underlying facts to the extent that it creates a conflict of interest for the CR office
Conflict Complaint Process The Corporate Services Division will ultimately
determine if a conflict of interest exists
CR Directors should only refer cases to CSD that are truly conflict cases
We don’t want to overuse the conflict process and assume that agencies cannot process their own complaints
OGC can assist in evaluating whether a conflict exists
Establishing a USDA Resolving Official (RO) Cadre Recognized the need for RO Cadre
What was the need? Why did we need it? Fully endorsed and supported by
leadership Departmental Regulation and
Departmental Manual
ADR Participants
Complainant: Person bringing the complaint. Resolving Official (RO): The person the agency
has designated and assigned the authority to make, change, accept and approve proposals for resolution during an ADR session. Should not have any involvement in the
underlying facts of the complaint. Should be objective, but not neutral.
Mediator/Neutral: Does not take sides, but is supposed to facilitate discussion. May be an employee of USDA, of another Federal agency, or a contractor
ADR Participants Responsible Management Official (RMO): The
individual(s) the complainant alleges is (are) responsible for the action or made the decision that allegedly harmed the complainant. A RMO cannot be the designated Resolving Official in an ADR session. OGC recommends determining RMO participation on a case-by-case basis.
Representatives: Complainant may bring a personal or professional representative (attorney, union steward, other employee). If Complainant brings a professional representative, OGC recommends that the Agency should also be represented.
Criteria / Characteristics What kinds of characteristics were we
looking for? All ROs receive training Distinct role compared to RMO Utilized for conflict of interest
complaints as well as complaints within USDA agencies
ROs are determined on a case-by-case basis
RO Cadre Composition
Political Non-political GS-15 and SES level Diversity
Representative of various agencies Female and male
Selection made by OASCR, but nominations accepted from agencies and OGC
Designating ROs [when does ADR happen?] A RO can be designated at any stage during the
EEO process to include: When a Complainant initiates an informal EEO
complaint and accepts ADR offer Where an EEO complaint is pending before the EEOC
and the AJ orders the parties to attempt settlement Where the Agency determines that resolution is
appropriate and possible through ADR or some other method and offers it to the Complainant
When the Complainant expresses a desire to resolve the pending EEO complaint and requests ADR or some other method and the Agency agrees
Designating ROs (cont’d)
In most cases at the informal stage, the Civil Rights (CR) or EEO office will designate a RO when the need arises
In conflict of interest cases, the Early Resolution and Conciliation Division will designate a RO from the Cadre
RO will be an individual who is not involved/named in the dispute
For cases that are in litigation, Agency Management usually designates the RO
Designating ROs (cont’d) Non-conflict of interest complaints:
First Choice – The first management official in the Complainant’s supervisory chain of command who is not involved in the dispute
Second Choice – If for some reason the first person designed to serve as RO is unavailable, the CR/EEO Office will designate the second management official in Complainant’s supervisory chain of command or someone in a different chain of command who is equivalent to or higher ranking than the RMO
RO Responsibilities ROs:
Attend all ADR sessions Consults with affected Agency management and
appropriate personnel [e.g., HR, OGC, etc.] to the mediations, which may include review of a case assessment or receiving an oral briefing on the facts and legal issues
Knowledge of basic facts of the case, major legal issues involved in the case, and any recommendations for settlement prior to entering the ADR session
Authority to resolve the complaint from the ASCR, but should seek input from management on workable resolutions and Agency preferences Possible remedies Money – both compensatory and attorney’s fees
RO Responsibilities (cont’d) Recommended that the RO only agree to terms
during the mediation that she/he has the authority to offer
If RO is unsure, the RO may stop the mediation and look into the matter/increase authority
It is better to ask for more time and make sure a proposed term can be agreed upon than to rescind an offer made during mediation
Always come to the negotiating table in good faith
Mediation SessionThe Mediation Session typically includes:
1. Mediator’s Opening/Setting Ground Rules for Discussion
2. All present sign an Agreement to Mediate 3. Initial Statements/Opening Statement by Parties
(Complainant usually goes first) 4. Information Gathering/Joint Meeting 5. Caucuses (with or without the Mediator) 6. Negotiation/Generating Options 7. Agreement in Principle 8. Formal Agreement/Closure (Does not have to be
signed at the mediation)
Settlement AgreementsIn order to ensure a Settlement Agreement that is valid and enforceable, it is advisable to adhere to the following basic guidelines. The Settlement Agreement should:
Include ALL terms upon which the parties agree Include a complete release of all pending claims and any claims that could
have been brought up until the date of signature Include withdrawal of all pending complaints Ensure there is a procedure for addressing allegations of non-compliance Use language that you understand Be specific Include timeframes for all actions either party has to take – nothing open-
ended Check with Human Resources regarding any employment/personnel issues Do not agree to something that you do not understand Do not leave something unsaid Do not rely on verbal understandings Do not leave terms open-ended (including any provision for attorney’s
fees/costs) Do not forget to check for other complaints that the employee may have
filed Do not agree to anything that is contrary to personnel regulations
Best Practices/Lessons Learned Training is key Feedback mechanism from cadre Constant refinement and periodic
training Brown Bag Luncheons to discuss
issues/concerns
Parting Thoughts Conflict is inevitable
No one size fits all approach
Must convince leadership that ADR is a tool for resolution, not only for employees, but for management
Contact Information
Cyrus Salazar, Director, ERCD, OASCR (202)720-4040/
Tami Trost, Assistant General Counsel, CRLELD Policy Section, OGC (202) 690-3993/ [email protected]
