EQUAL EMPLOYMENT OPPORTUNITY
OFFICE 04-EEO-02
DEPARTMENT OF DEFENSE EDUCATION ACTIVITY
POLICY MEMORANDUM
IMPLEMENTATION OF THE NO FEAR ACT
Procedural Requirements
References:
Public Law 107-174 107th Congress, Notification and Federal
Employee Antidiscrimination and Retaliation (NO FEAR) Act of 2002, May 15,
2002.
This
purpose of this policy is to implement the provisions of the NO FEAR Act and to
notify all organizational entities of the Department of Defense (DoD) Education
Activity (DoDEA) of their responsibilities in providing information to the
Headquarters Equal Employment Opportunity (EEO) Office to meet the reporting
requirements of the Act. Because many
of the functional responsibilities of finance, personnel, and compliance
(whistleblower, hotline and IG referrals) have been downloaded to the field,
reporting requirements for this Act must be provided to the EEO office for
inclusion in the DoDEA requirement.
I. Background:
On
October 1, 2003, the NO FEAR Act went into effect. The Act was passed to require that Federal agencies:
A.
be accountable for
violations of antidiscrimination and whistleblower protection laws;
B.
post quarterly on its
public web site certain statistical data relating to Federal sector equal
employment opportunity complaints filed with such agency;
C.
notify Federal employees
of their rights under discrimination and whistleblower laws;
D.
submit annual reports to
Congress on the number and severity of discrimination and whistleblower cases
brought against said agency;
E.
reimburse the General
Fund of the Treasury within a reasonable time out of its operating expenses
funds relating to judgments, awards, and compromise settlements to any Federal
employee, former Federal employee, or applicant for Federal employment, in connection
with any proceeding brought by or no behalf of such employee, former employee,
or applicant under any provision of antidiscrimination laws, cited in Part II,
Applicable Laws.
II.
Applicable
Laws:
The
provisions of law covered under the NO FEAR Act refer to
laws
that concern antidiscrimination, prohibited personnel practices and
whistleblower retaliation. For your use
and information, provided are the applicable laws.
A.
5 USC 2302(b)(1) and (8) –
Any
employee who has authority to take, direct others to take, recommend, or
approve any personnel action, shall not, with respect to such authority -
(1) discriminate for or against any employee or applicant
for employment -
(A)
on the basis of race,
color, religion, sex, or national origin, as prohibited under section 717
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);
(B)
on the basis of age,
as prohibited under sections 12 and 15 of the Age Discrimination in Employment
Act of 1967 (29 U.S.C. 631, 633a);
(C)
on the basis of sex,
as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29
U.S.C. 206(d));
(D)
on the basis of handicapping
condition, as prohibited under section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791); or
(E)
on the basis of marital
status or political affiliation, as prohibited under any law, rule, or
regulation;
. . .
(8) take or fail to take, or threaten to take or fail to
take, a personnel action with respect to any employee or applicant for
employment because of -
(A) any
disclosure of information by an
employee or applicant which the employee or applicant reasonably believes
evidences -
(i) a violation
of any law, rule, or regulation, or
(ii) gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not
specifically required by Executive order to be kept secret in the interest of
national defense or the conduct of foreign affairs; or
(B) any
disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the
head of the agency to receive such disclosures, of information which the
employee or applicant reasonably believes evidences -
(i) a violation
of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public
health or safety;
(9) take or fail to take, or threaten to take or fail to
take, any personnel action against any employee or applicant for employment
because of -
(A) the exercise of any
appeal, complaint, or grievance right granted by any law, rule, or
regulation;
(B) testifying for or otherwise lawfully assisting any individual in
the exercise of any right referred to in subparagraph (A);
(C) cooperating
with or disclosing information to the Inspector General of an agency, or the
Special Counsel, in accordance with
applicable provisions of law; or
(D) for refusing
to obey an order that would require the individual to violate a law;
B. 5 USC 2302(d) –
This
section shall not be construed to extinguish or lessen any effort to achieve
equal employment opportunity through affirmative action or any right or remedy
available to any employee or applicant for employment in the civil service
under -
(1) section
717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), prohibiting
discrimination on the basis of race,
color, religion, sex, or national origin;
(2) sections
12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631,
633a), prohibiting discrimination on the basis of age;
(3) under
section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)),
prohibiting discrimination on the basis of sex;
(4) section
501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting
discrimination on the basis of handicapping
condition; or
(5) the
provisions of any law, rule, or regulation prohibiting discrimination on the
basis of marital status or political affiliation.
III.
Reimbursement Requirements:
All Finance offices under the direction of
Headquarters, Department of Defense Dependents Schools-Europe (DoDDS-E),
Department of Defense Dependents Schools-Pacific (DoDDS-P), and Domestic
Dependent Elementary and Secondary Schools (DDESS) should provide a report to
the EEO office of any payments made in accordance with 28 USC 2414, 2517, 2672,
or 2677, and under 31 USC 1304 that relate to payment of judgments, awards, and
compromise settlements to any employee, former employee, or applicant in
connection with any proceeding brought by the applicable laws cited in Part II
above. For your use and information,
provided are the applicable financial codes.
A.
28 USC 2414 – Payment of judgments and compromise –
Except
as provided by the Contract Disputes Act of 1978, payment of final judgments
rendered by a district court or the Court of International Trade against the
United States shall be made on settlements by the Secretary of the Treasury.
Payment of final judgments rendered by a State or foreign court or tribunal
against the United States, or against its agencies or officials upon
obligations or liabilities of the United States, shall be made on settlements
by the Secretary of the Treasury after certification by the Attorney General
that it is in the interest of the United States to pay the same.
Whenever
the Attorney General determines that no appeal shall be taken from a judgment
or that no further review will be sought from a decision affirming the same, he
shall so certify and the judgment shall be deemed final.
Except
as otherwise provided by law, compromise settlements of claims referred to the
Attorney General for defense of imminent litigation or suits against the United
States, or against its agencies or officials upon obligations or liabilities of
the United States, made by the Attorney General or any person authorized by
him, shall be settled and paid in a manner similar to judgments in like causes
and appropriations or funds available for the payment of such judgments are
hereby made available for the payment of such compromise settlements.
B.
28 USC 2517. - Payment of judgments -
(a) Except as provided by the Contract Disputes Act of
1978, every final judgment rendered by the United States Court of Federal
Claims against the United States shall be paid out of any general appropriation
therefore, on presentation to the Secretary of the Treasury of a certification
of the judgment by the clerk and chief judge of the court.
(b) Payment of any such judgment and of interest thereon
shall be a full discharge to the United States of all claims and demands
arising out of the matters involved in the case or controversy, unless the
judgment is designated a partial judgment, in which event only the matters
described therein shall be discharged.
C.
28 USC 2672. - Administrative adjustment of claims -
Subject to the provisions of this title relating to
civil actions on tort claims against the United States, any such award,
compromise, settlement, or determination shall be final and conclusive on all
offices of the Government, except when procured by means of fraud. Any award,
compromise, or settlement in an amount of $2,500 or less made pursuant to this
section shall be paid by the head of the Federal agency concerned out of
appropriations available to that agency. Payment of any award, compromise, or
settlement in an amount in excess of $2,500 made pursuant to this section or
made by the Attorney General in any amount pursuant to section 2677 of this
title shall be paid in a manner similar to judgments and compromises in like
causes and appropriations or funds available for the payment of such judgments
and compromises are hereby made available for the payment of awards,
compromises, or settlements under this chapter.
The
acceptance by the claimant of any such award, compromise, or settlement shall
be final and conclusive on the claimant, and shall constitute a complete
release of any claim against the United States and against the employee of the
government whose act or omission gave rise to the claim, by reason of the same
subject matter.
D.
28 USC 2677. – Compromise
-
The Attorney General or his designee may arbitrate,
compromise, or settle any claim cognizable under section 1346(b) of this title,
after the commencement of an action thereon.
E.
31 USC 1304. - Judgments, awards, and compromise settlements –
(a) Necessary amounts are appropriated to pay final
judgments, awards, compromise settlements, and interest and costs specified in
the judgments or otherwise authorized by law when -
(1) payment is not otherwise provided for;
(2) certified by the Secretary of the Treasury; and
(3) the judgment, award, or settlement is payable -
(A) under section 2414, 2517, 2672, or 2677 of title 28;
(B) under section 3723 of this title;
(C) under a decision of a board of contract appeals; or
(D) in excess of an amount payable from the appropriations
of an agency for a meritorious claim under section 2733 or 2734 of title 10,
section 715 of title 32, or section 203 of the National Aeronautics and Space
Act of 1958 (42 U.S.C. 2473).
(1) Interest may be paid from the appropriation made by
this section -
(A) on a judgment of a district court, only when the
judgment becomes final after review on appeal or petition by the United States
Government, and then only from the date of filing of the transcript of the
judgment with the Secretary of the Treasury through the day before the date of
the mandate of affirmance; or
(B) on a judgment of the Court of Appeals for the Federal
Circuit or the United States Court of Federal Claims under section 2516(b) of
title 28, only from the date of filing of the transcript of the judgment with
the Secretary of the Treasury through the day before the date of the mandate of
affirmance.
(2) Interest payable under this subsection in a proceeding
reviewed by the Supreme Court is not allowed after the end of the term in which
the judgment is affirmed.
(1) A judgment or compromise settlement against the
Government shall be paid under this section and sections 2414, 2517, and 2518 [1] of title 28 when the judgment or settlement
arises out of an express or implied contract made by -
(A) the Army and Air Force Exchange Service;
(B) the Navy Exchanges;
(C) the Marine Corps Exchanges;
(D) the Coast Guard Exchanges; or
(E) the Exchange Councils of the National Aeronautics and
Space Administration.
(2) The Exchange making the contract shall reimburse the
Government for the amount paid by the Government
III.
Notification Requirements:
Written
notification of the rights and protections available to Federal employees,
former Federal employees, and applicants for Federal employment in connection
with antidiscrimination laws, prohibited personnel practices, and whistleblower
retaliation is required to be provided to all agency employees, former
employees, and applicants. Posting of the written notification
should be posted in a common area accessible to all employees in a place that
cannot be obstructed or removed.
Written
notification as described above must also be posted on the internet.
All
employees are to receive training regarding the rights and remedies applicable
to the laws cited in Part II, Applicable Laws.
IV. Reporting Requirements:
A.
Annual Report:
One hundred and eighty days after the end of each
fiscal year (beginning on March 28, 2005), an annual report will be submitted
to the Speaker of the House of Representatives, the President pro tempore of
the Senate, the Committee on Governmental Affairs of the Senate, the Committee
on Government Reform of the House of Representatives, each committee of
Congress with jurisdiction relating to the agency, the Equal Employment
Opportunity Commission, and the Attorney General.
The EEO office will be responsible for gathering the
required information concerning cases brought forth by employees and applicants
concerning employment issues race,
color, religion, sex, or national origin, age, and handicapping condition. As EEO does not have accessibility to
the following statistical information held by other offices, it is imperative
that cooperation and a system be established to provide additional required
data.
All Personnel offices and finance offices
(Headquarters, DoDDS-E, DoDDS-P, and DDESS) responsible for processing any
complaints or payouts concerning prohibited personnel practices that involve
discrimination claims not filed in an EEO forum, such as discrimination claims
filed as Merit Systems Protection Agency (MSPB) appeals, administrative
grievances, or union grievances, to include claims of discrimination based on
marital status or political affiliation, need to establish a tracking system to
report the data requested in paragraphs 1 through 8 of this part, by February
27, 2005. In addition, area components
(Headquarters, DoDDS-E, DoDDS-P, and DDESS) who handle Whistleblower Act
retaliation claims will report data requested in paragraphs 1 through 8 of this
part to the EEO office by February 27, 2005:
1. the number of cases;
2. the status and disposition of cases;
3. the amount of money required to be reimbursed by
DoDEA, separately identifying the aggregate amount of such reimbursements
attributable to the payment of attorneys’ fees;
4. the number of employees disciplined for
discrimination, retaliation, harassment, or any other infraction of any
provision of law as outlined in Part II;
5. data for prior fiscal years to include year-end data
for each of the 5 immediately preceding fiscal years (or, if not available for
all 5 fiscal years, for however many of those 5 fiscal years for which data are
available);
6. a detailed description of
a. the policy implemented by that agency relating to
appropriate disciplinary actions against a Federal employee who
i.
discriminated against
any individual in violation of any of the laws cited under Part II;
ii.
committed another
prohibited personnel practice that was revealed in the investigation of a
complaint alleging a violation of any of the laws cited under Part II; and
b. with respect to each of such laws outlined in Part II,
the number of employees who are disciplined in accordance with such policy and
the specific nature of the disciplinary action taken;
7. an analysis of the information described under
paragraphs 1 through 6 above, including
a. an examination of trends;
b. causal analysis;
c. practical knowledge gained through experience; and
d. any actions planned or taken to improve complaint or
civil rights programs of DoDEA; and
8. any adjustment (to the extent the adjustment can be
ascertained in the budget) to comply with the requirements.
B. First Report:
The first report submitted under A. above shall
include for each item, data for each of the 5 immediately preceding fiscal
years (fiscal years 1999 through 2003).
IV.
Posting Requirements for the Report:
The EEO office will post on its Web site a summary of
statistical data relating to equal employment opportunity complaints filed with
DoDEA by employees or former employees of, or applicants for employment with,
DoDEA. The data will include for the
current fiscal year, each year, the following:
1. the number of complaints filed with DoDEA in such
fiscal year;
2. the number of individuals filing those complaints
(including as the agent of a class);
3. the number of individuals who filed 2 or more of those
complaints;
4. the number of complaints in which each of the various
bases of alleged discrimination is alleged;
5. the number of complaints in which each of the various
issues of alleged discrimination is alleged;
6. the average length of time, for each step of the
process, it is taking DoDEA to process complaints (taking into account all
complaints pending for any length of time in such fiscal year, whether first
filed in such fiscal year or earlier).
Average times under this paragraph shall be posted –
i.
for all such complaints,
ii.
for all such complains
in which a hearing before an administrative judge of the EEOC is not requested,
and
iii.
for all such complaints
in which a hearing before an administrative judge of the EEOC is requested.
7. the total number of Final Agency Decisions (FAD)
rendered in such fiscal year involving a finding of discrimination and, of that
number –
i.
the number and
percentage that were rendered without a hearing before an administrative judge
of the EEOC, and
ii.
the number and
percentage that were rendered after a hearing before an administrative judge of
the EEOC.
8. of the total number of FADs rendered in such fiscal
year involving a finding of discrimination. –
i.
the number and
percentage involving a finding of discrimination based on each of the
respective bases of alleged discrimination, and
ii.
of the number specified
under subparagraph i. for each of the respective bases of alleged
discrimination –
(1)
the number and
percentage that were rendered without a hearing before an administrative judge
of the EEOC, and
(2)
the number and
percentage that were rendered after a hearing before an administrative judge of
the EEOC.
9. of the total number of FADs rendered in such fiscal
year involving a finding of discrimination –
i.
the number and
percentage involving a finding of discrimination in connection with each of the
respective issues of alleged discrimination, and
ii.
of the number specified
under subparagraph i. for each of the respective issues of alleged
discrimination—
(1) the number and percentage that were rendered without a
hearing before an administrative judge of the EEOC, and
(2) the number and percentage that were rendered after a
hearing before an administrative judge of the EEOC.
10.
i.
of the total number of
complaints pending in such fiscal year (as described in paragraph 6), the
number that were first filed before the start of the then current fiscal year.
ii.
with respect to those
pending complaints that were first filed before the start of the then current
fiscal year—
(1) the number of individuals who filed those complaints,
and
(2) the number of those complaints which are various steps
of the complaint process.
iii.
Of the total number of
complaints pending in such fiscal year (as described in paragraph 6), the total
number of complaints with respect to which DoDEA failed to conduct within 180
days of the filing of such complaints an impartial and appropriate
investigation of such complaints.
The data posted for the current fiscal year will
include both the interim year-to-date data, updated quarterly, and final
year-end data. Posted will also be
year-end data for each of the 5 immediately preceding fiscal years in which
data is available.
V.
Points-of-Contact:
Please provide to the EEO office a name and telephone
number for each component office that will be responsible for providing the
required data to the EEO office.