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howinus50  
#1 Posted : Saturday, September 25, 2021 9:28:03 AM(UTC)
howinus50

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Greetings,

I started the long thread awhile back about a denied reasonable accommodation . Unfortunately, my wife's request for remote work is still in limbo and we recently filed an EEO complaint. I am not feeling confidant as we were assigned a counselor in training ( there is an experienced counselor assisting). After the phone interview, the counselor suggested we meet the following week ( 2 weeks from initial request ) for final interview. I said that seems very quick and way off from the 30 days . Thankfully the senior counselor intervened and said that's too quick. we have an appointment 3 weeks out which still seems too quick. I am hoping we can resolve within the informal but I am not expecting resolution

My question to Frank and other SME's is should we request ADR ( mediation ) when we formally file.? It seems like one of the sticking points is phase 2 training completion which will be completed by the time we file .

It was interesting that the senior counselor seemed interested in the agency's refusal to interact with me ( third party ) and their failure to engage in the interactive process. I would recommend that folks write the EEOC inquiry line with questions. It's staffed by attorneys. I asked about a third party assisting in the interactive process and received the following


Executive Order 13164 requires all Federal Agencies to have written reasonable accommodation procedures. The Executive Order does not address an employee having a third party participate in the interactive process. However, it could be a violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. For example, if the Agency's failure to allow a third party to be present when discussing an employee's request for reasonable accommodation leads to the denial of a requested reasonable accommodation. Or alternatively, you could indicate that your participation in the interactive process alongside your wife is itself a request for reasonable accommodation. The Agency may ask your wife if she has objections to your participation. If not, then the Agency may have to show undue hardship to justify denial of this requested reasonable accommodation.

You could notify the Agency that you checked with the EEOC about having a third party participate in the interactive process to request an accommodation, and the EEOC was surprised/concerned about why an Agency would refuse a request for a third party to participate. As long as your wife voices no objections, it is unclear why the Agency would bar a third party from participating in the interactive process.

Attorney of the Day
Office of Federal Operations
EEOC
I forwarded this information to Agency management and there was NO response.

The system seems to care more about NOT telling you to go fly a kite than telling you to go fly a kite. Any thoughts regarding mediation would be appreciated
frankgonzalez  
#2 Posted : Saturday, September 25, 2021 11:36:17 AM(UTC)
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I’m biased when it comes to mediation as I’m a mediator, so take my opinion for what it’s worth.
You should have been asked if you were interested in mediation during the informal process. The agency may decide to not offer it (my agencies have always required very good reasons to not offer mediation. At my current agency, they also need to put it in writing for the record if they decline mediation).

You can ask for mediation at any and every stage of the EEO process.

The RA process specifically calls out relatives as representatives for a person asking for a RA. I would ask for the person to confirm their spouse is their rep in writing (an email would work) as medical issues would be discussed.

Nothing to lose trying mediation, and could perhaps gain a lot if you are able to resolve the issue.
You should have voted Cthulu...the greatest of all Evils
howinus50  
#3 Posted : Saturday, September 25, 2021 12:23:24 PM(UTC)
howinus50

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Thanks Frank
To clarify, mediation was brought up and we decided to go informal counseling route. I thought it’s one or the other but now I am thinking why not give it a shot
We are 2 weeks into the informal process and from what you are saying , we can ask for mediation now???
Fyi my wife did let management know after requesting the RA that I was assisting. It didn’t matter. They didn’t respond
howinus50  
#4 Posted : Saturday, September 25, 2021 12:24:29 PM(UTC)
howinus50

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Sorry forgot to mention. The agency does offer mediation
frankgonzalez  
#5 Posted : Saturday, September 25, 2021 1:09:31 PM(UTC)
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Originally Posted by: howinus50 Go to Quoted Post
Thanks Frank
To clarify, mediation was brought up and we decided to go informal counseling route. I thought it’s one or the other but now I am thinking why not give it a shot
We are 2 weeks into the informal process and from what you are saying , we can ask for mediation now???
Fyi my wife did let management know after requesting the RA that I was assisting. It didn’t matter. They didn’t respond
yep…go ahead and let your counselor know. Auto extends the informal process an additional 60 calendar days, but that really is to help schedule the mediation. Trying to lock in several people’s calendars can be a headache logistically, so the extra time helps immensely. I try to aim for the 35-45 day window to allow for pauses needed (ie idea sounds good in the mediation, but the parties may need to check with the SMEs, etc to see if or how it can be done, then come back together for a short session to hammer out the agreement language) as it is far enough out that people should be able to find a mutual day on their calendars.

You should have voted Cthulu...the greatest of all Evils
howinus50  
#6 Posted : Saturday, September 25, 2021 2:16:14 PM(UTC)
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Thanks Frank
Will do
howinus50  
#7 Posted : Monday, September 27, 2021 10:13:42 AM(UTC)
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Hi Frank

here is the response i received when I asked for mediation during the informal counseling. I DID initially pass on mediation.

On xxxx, xxxxr 5, 2021 @4pm EST, I will share my findings with you and xxxxx. As you were advised during the initial counseling, we would not be able to use Mediation since you selected traditional Informal Counseling.

any suggestions?

howinus50  
#8 Posted : Monday, September 27, 2021 10:53:30 AM(UTC)
howinus50

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i asked for clarification and this is what i received


Any time during the process means either during the informal or the formal phase of the process. You have already selected “traditional counseling” for the informal process. As I explained during the initial interview, because the informal process is so short, pursuant to statute, the decision has to be made at the beginning. However, I also explained that if there is a formal complaint filed and accepted for investigation, that option may be offered.


frankgonzalez  
#9 Posted : Monday, September 27, 2021 12:02:27 PM(UTC)
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Originally Posted by: howinus50 Go to Quoted Post
i asked for clarification and this is what i received


Any time during the process means either during the informal or the formal phase of the process. You have already selected “traditional counseling” for the informal process. As I explained during the initial interview, because the informal process is so short, pursuant to statute, the decision has to be made at the beginning. However, I also explained that if there is a formal complaint filed and accepted for investigation, that option may be offered.


I would ask for the agency policy that specifically says that. The agencies I have been in, as the ADR extends the process by 60 calendar days, if they came in on day 28 and asked for ADR, I'd be back checking with the settlement official (someone in management not named in the complaint) to see if they want to try mediation and see if we can get it done.

I would point out to the counselor, that while the Informal Traditional Counseling is only 30 calendar days, the ADR side is 90 calendar days, so why are they refusing to ask management (the people who actually make the decision on whether to offer ADR) if they are interested in trying mediation? Or you could have the counselor put you through to their manager to explain where in the agency policies it says there is only one time to request ADR?

I have personally mediated a case in the informal stage, again at the formal stage during the investigation period and once it was at the hearing stage (both parties asked for me by name in the 2nd and 3rd mediations as they felt I understood the issues and helped them make progress towards resolution each time). The final time at the table resulted in resolution and a settlement. I have also arranged mediations for complainants after they initially selected Traditional Counseling once they have had a chance to talk to someone about mediation (or talked to me for more info while the traditional counseling was ongoing and decided to try it).

Can't speak for your wife's agency, but makes me wonder if the counselor is experienced or they have rather restrictive processes providing access to ADR.

You should have voted Cthulu...the greatest of all Evils
howinus50  
#10 Posted : Tuesday, October 5, 2021 1:36:32 PM(UTC)
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Frank,
unfortunately there was no resolution during the informal process and we are going to file a formal complaint. Here are a couple of questions I hope you can answer.

1.) I didn't see anywhere to ask for ADR on the formal app. Does that come after complaint is accepted?
2.) will probably seek representation but don't have it now . Is it just formality to add?

I do understand that the complaint has to be accepted for further processing. Sadly, I wanted the mediation because the agency states that the RA wasn't officially denied and it would be revisited after training completion.

the training will be completed within 2 weeks and her supervisor seemed to state that she is doing an excellent job. It was interesting that when I asked if we should just wait and not formally file, the counselor hinted that we should file a formal complaint instead of starting over.
Thanks in advance


frankgonzalez  
#11 Posted : Wednesday, October 6, 2021 3:30:26 AM(UTC)
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Originally Posted by: howinus50 Go to Quoted Post
Frank,
unfortunately there was no resolution during the informal process and we are going to file a formal complaint. Here are a couple of questions I hope you can answer.

1.) I didn't see anywhere to ask for ADR on the formal app. Does that come after complaint is accepted?
2.) will probably seek representation but don't have it now . Is it just formality to add?

I do understand that the complaint has to be accepted for further processing. Sadly, I wanted the mediation because the agency states that the RA wasn't officially denied and it would be revisited after training completion.

the training will be completed within 2 weeks and her supervisor seemed to state that she is doing an excellent job. It was interesting that when I asked if we should just wait and not formally file, the counselor hinted that we should file a formal complaint instead of starting over.
Thanks in advance


Ok...
1. Typically, once a complaint has been accepted for investigation, the complainant is asked if they would like to try ADR (hey...maybe this time it can be resolved!).
2. You can add a representative at any time in the process. Just have to let the agency know. Typically, the attorney (if that is what you use...I recommend using a good federal employment law attorney) will send the letter to the agency for you. Personally, I didn't get an attorney until I was at the hearing simply because I could handle everything up to that point easily myself-after all, I do this for a living!-and once at the EEOC, I preferred someone who is used to writing motions to do that part saving me some headaches. I knew if I won at the hearing (or settled prior), I would get my legal fees back, so just a short term cost that came back at the end (and I ended up settling prior to the hearing, but after discovery and depositions...because the agency attorney didn't realize I knew something about the record they didn't...but was obvious once it was pointed out! My attorney suspected a problem in that part of the record, and when I showed her the parts that were critical, she knew my case, which was strong to begin with, got a lot stronger as a result!).


You should have voted Cthulu...the greatest of all Evils
howinus50  
#12 Posted : Wednesday, October 6, 2021 6:55:19 AM(UTC)
howinus50

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Frank
I really appreciate your help. sorry i have another question for you. In the area for resolution we are going to ask for the RA to be approved. I want to add some for compensatory damages..... . Can you request punitive??? ( failure to engage in interactive process and violation of 501 ) OR can that be added later during ADR or when I get an attorney .

The only reason i am holding off attorney right now is that their reason for the delay in approving will be resolved very soon
frankgonzalez  
#13 Posted : Wednesday, October 6, 2021 10:07:20 AM(UTC)
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Originally Posted by: howinus50 Go to Quoted Post
Frank
I really appreciate your help. sorry i have another question for you. In the area for resolution we are going to ask for the RA to be approved. I want to add some for compensatory damages..... . Can you request punitive??? ( failure to engage in interactive process and violation of 501 ) OR can that be added later during ADR or when I get an attorney .

The only reason i am holding off attorney right now is that their reason for the delay in approving will be resolved very soon
There are no punitive damages in the federal EEO process. You have to prove harm and can be compensated for the harm. The sanctions (if you win) can be training, a posting, etc, but you can only get damages (what you spend-pecuniary and this includes your legal fees, attorney's fees, etc, and payment for your harm-nonpecuniary) if you win.

In ADR you can ask for anything you can get if you won in court. Whether the agency will agree is another issue. But that is where the negotiation is, and if your ask is too extreme, the agency may call impasse as you are too far apart to begin with. (ie if you walk in saying "I need X for the accommodation and $300k or we walk!", the agency may simply say "ok, see you in court. We think we can prevail.") If you come in with a reasonable ask, the odds of resolution go up (ie you ask "We want the approval of the requested accommodation for immediately following the training, and $10k for the stress this has caused due to not knowing if it will be approved or not. It caused sleepless nights, impacted my concentration, and impacted my home life with my spouse.", the agency may be open to negotiating the $ amount and approving the rest right away.).

You should have voted Cthulu...the greatest of all Evils
howinus50  
#14 Posted : Wednesday, October 6, 2021 5:25:09 PM(UTC)
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Frank
Thank you very much. Good advice. Will follow-up
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