I. EXECUTIVE SUMMARY

The U.S. Department of Transportation (DOT) provides its Annual Report to Congress as required by Section 203 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (“No FEAR Act”), Public Law 107-174. Also, DOT reports on the number of cases that were filed in Federal court which resulted in judgments, awards or compromise settlements; the disposition of those cases; money required to be reimbursed; and the number of employees disciplined for discrimination, retaliation, harassment, or other infractions of a provision of law cited in Section 201(c) of the

No FEAR Act (also referred to as the Act) or for violating any agency policy concerning Federal Antidiscrimination Laws, whistleblower laws, or conduct that constitutes a prohibited personnel practice.

There were 53 Federal court cases pending during Fiscal Year (FY) 2006. Among this number, 46 Federal court cases (87 percent) included alleged violations of section 717 of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-16)(“Title VII”). There were 8 cases (15 percent) that included allegations of the Age Discrimination in Employment Act of 1967 (“ADEA”) (29 U.S.C. §§ 631, 633a); and 7 cases (13 percent) included alleged violations of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. §791).[1] There were also 32 Federal court cases resolved during the FY. Among this number, 22 cases (69 percent) were dismissed without a finding of discrimination, 1 case was remanded to DOT, and 9 cases resulted in payments from the Judgment Fund. Most of these cases (78 percent) involved alleged violations of Title VII.

It is important to note that DOT experienced a slight decline in the number of Federal court cases that resulted in judgments, awards and compromise settlements in comparison to the previous FY. DOT reimbursed the Judgment Fund a total of $1,023,295.23 for Federal court judgments, awards, and compromise settlements. This amount includes $160,000.00; which was separately designated as attorney’s fees. No DOT employees were disciplined for discrimination, retaliation, harassment or other infractions of a provision of law cited in the No FEAR Act stemming from the Federal court actions. However, DOT took 68 disciplinary actions against employees for violating

antidiscrimination, harassment, or retaliation policies issued by its operating administrations (OAs).

There were 484 administrative complaints filed against DOT during FY 2006.[2] Among those 484 complaints, the greatest number of cases filed was under Title VII.[3] During

FY 2005, there were 408 administrative complaints filed against DOT, a 19 percent increase from FY 2005. Among those administrative cases filed, there were two cases which resulted in findings of discrimination – both with hearings before an administrative judge. The bases in the discriminatory findings were Title VII reprisal and violation of the Rehabilitation Act.[4] As a result of the U.S. Equal Employment Opportunity Commission’s (EEOC) findings in these administrative cases, no employees were disciplined for discrimination, retaliation, harassment or other infractions of a provision of law cited in Section 201(c) of the No FEAR Act.[5]

The DOT believes there may be several reasons for the slight decrease in the number of Federal court judgments, awards, and compromise settlements during FY 2006 in comparison to previous years. First, with respect to the number of Federal court judgments, awards, etc., DOT implemented numerous best practices since the enactment of the No FEAR Act (See Appendix 1). The accomplishments have included briefings for agency managers and employees on the No FEAR Act, mandatory training for all employees (including managers and supervisors) on antidiscrimination, retaliation, and whistleblower laws, and the rights and remedies pursuant to these laws as required by the No FEAR Act. Training also has been provided on other equal employment opportunity (EEO) laws, diversity, Whistleblower Protection Act (WPA), prohibited personnel practices, conflict resolution and alternative dispute resolution (ADR). The DOT has further increased its emphasis on encouraging employees to resolve workplace issues at the earliest stages. Two of the OAs, Federal Railroad Administration (FRA) and Federal Highway Administration (FHWA) have implemented a mandatory ADR policy for managers to participate in mediation once it has been determined that a case is appropriate for ADR. The DOT’s increased attention to early resolution of workplace issues, briefings, and training on the No FEAR Act may have had an impact in decreasing the number of Federal court cases filed. The data reflect successful resolution of DOT workforce issues in 58 percent of the cases when ADR was offered and accepted by the parties at the formal phase of an EEO complaint.[6]

In reviewing the past FYs and trends, DOT’s need for additional funding to develop or procure a comprehensive ONEDOT database system that will interface with civil rights, legal, human resources, and financial management programs within DOT has become increasingly important. Additionally, more effective communication with DOT’s employees about major changes regarding reorganization, policies, and practices is important in allaying employees’ potential concerns in the workplace. Finally, DOT recognizes that training in ADR and conflict management skills for supervisors and managers is critical in resolving workplace conflicts before they become formal EEO complaints.

II. INTRODUCTION

The No FEAR Act requires Federal agencies to submit annual reports to the Speaker of the House of Representatives, President pro tempore of the Senate, Committees on Governmental Affairs of the Senate and Government Reform of the House of Representatives, each committee of Congress with jurisdiction relating to the agency, the Attorney General, the Chair, EEOC and the Director, U.S. Office of Personnel Management (OPM). Additionally, OPM’s final regulations on the No FEAR Act on Reporting and Best Practices issued December 28, 2006, requires that it also receive a copy of this report.

III. BACKGROUND

The No FEAR Act was signed into law by President George W. Bush on May 15, 2002, and became effective on October 1, 2003. The Act requires Federal agencies to be accountable for violations of anti discrimination and whistleblower protection laws

and post certain statistical data relating to Federal sector EEO complaints filed with

the agency.

Section 203 of the No FEAR Act requires that each Federal agency submit an annual Report to Congress not later than 180 days after the end of each fiscal year. Agencies must report on the number of Federal court cases arising under each of the respective areas of law specified in the Act in which discrimination was alleged; the status or disposition of cases; the amount of money required to be reimbursed; the number of employees disciplined; any policies implemented related to appropriate disciplinary actions against a Federal employee who discriminated against any individual, or committed a prohibited personnel practice; and an analysis of the data collected with respect to trends, causal analysis, etc.

The President delegated responsibility to OPM for the issuance of regulations governing implementation of Title II of the No FEAR Act. The OPM published final regulations on the reimbursement provisions of the Act on May 10, 2006; final regulations to carry-out the notification and training requirements of the Act were published on July 20, 2006; and the final regulations to implement the reporting and best practices provisions of the No FEAR Act on December 28, 2006. The EEOC published its final regulations to implement the posting requirements of Title III of the No FEAR Act on August 2, 2006. The DOT has prepared this report based on the provisions of the No FEAR Act, OPM and EEOC’s final regulations.

IV. DATA

a. Civil Cases

Section 203(a)(1) of the No FEAR Act requires that agencies include in their annual Report “the number of cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) in which discrimination on

the part of such agency was alleged.” Section 724.302 of OPM’s final regulations on reporting and best practices clarifies section 203 (1) of the No FEAR Act stating that agencies report on the “number of cases in Federal Court [district and appellate] pending or resolved…arising under each of the respective provisions of the Federal Antidiscrimination laws and Whistleblower Protection Laws applicable to them…in which an employee, former Federal employee, or applicant alleged a violation(s) of these laws, separating data by the provision(s) of law involved.”

The DOT reports that during FY 2006, there were a total of 53 Federal court cases pending. Among those number of cases, 46 cases (87 percent) included alleged violations of Title VII; 8 cases (15 percent) included alleged violations of the Age Discrimination in Employment Act (ADEA); and 7 cases (13 percent) included alleged violations of the Rehabilitation Act.[7] DOT also reports for FY 2006 that there were a total of 32 Federal court cases resolved. Among this number, 22 cases (69 percent) were dismissed without a finding of discrimination, 1 case was remanded to DOT, and 9 cases resulted in payments from the Judgment Fund. Of the 9 cases resulting in payments from the Judgment Fund, 7 cases (78 percent) included alleged violations of Title VII and 2 cases (22 percent) included alleged violations of the ADEA. There were no judgments, awards, or compromised settlements paid from the Judgment Fund for retaliation under the Whistleblower Protection Act on behalf of DOT.

The DOT’s annual report to Congress in FY 2005, reflected 10 discrimination Federal court cases that resulted in payments from the Judgment Fund, which were approximately half of the number of cases in FY 2003. Of these 10 cases, 7 (58 percent) were filed under Title VII, 3 cases (25 percent) were filed under the Rehabilitation Act and 2 cases (17 percent) were filed under the ADEA.

In FY 2006, there was a decline of 10 percent in the number of discrimination cases in Federal court resulting in judgments, awards or compromise settlements paid by the Judgment Fund in comparison to FY 2005. On the other hand, DOT experienced an increase in the number of EEO complaints filed administratively before the EEOC. These administrative cases increased by 19 percent from FY 2005 to FY 2006.

b. Reimbursement to the Judgment Fund

The OPM published final regulations to clarify the agency reimbursement provisions of Title II of the No FEAR Act. These regulations state that the U.S. Department of the Treasury’s Financial Management Service (FMS), will provide notice to a Federal agency’s Chief Financial Officer within 15 business days after payment from the Judgment Fund. The agency is required to reimburse the Judgment Fund within 45 business days after receiving the notice from FMS or contact them to make arrangements in writing for reimbursement.

The Treasury Judgment Fund paid $1,023,295.23 on behalf of DOT for discrimination cases filed in Federal court resulting in judgments, awards, or compromise settlements during FY 2006. This amount includes $160,000.00 as separately designated attorney’s fees. DOT has reimbursed the Treasury Judgment Fund for all monies, judgments, awards, and compromise settlements for FY 2006.

The DOT continues to work with FMS to improve and streamline their notification process to DOT agencies. Improvements to the FMS notification process will enable DOT agencies to respond more promptly and efficiently.

c. Disciplinary Actions

Section 203(a)(4) of the No FEAR Act requires that agencies include in the annual Report “the number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1).” Section 203(a)(1) requires that agencies report “the number of cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) in which discrimination on the part of such agency was alleged.” OPM’s final regulation on Reporting and Best Practices published December 28, 2006, provides that these cases refer to the number of discrimination and whistleblower cases for which the Judgment Fund paid amounts on behalf of the agency. The final regulations also define disciplinary actions to include any one or a combination of the following actions: reprimand, suspension without pay, reduction in grade or pay, or removal. The DOT reports that there were no disciplinary actions arising from the nine Federal court discrimination cases which resulted in payments from the Judgment Fund.

OPM’s final regulation also provides that whether or not in connection with cases in Federal court, agencies are to report the total number of employees disciplined and the specific nature of the disciplinary action taken in accordance with agency policy that prescribes disciplinary action for discrimination, retaliation, harassment, and whistleblower protection law violations.

DOT reports 68 disciplinary actions as follows:

Number of Disciplinary Grievances

Employees Action

Disciplined

Ø 2 30-day Suspension

Ø 6 14-day Suspension

Ø 4 10-day Suspension

Ø 1 8-day Suspension

Ø 1 7-day Suspension

Ø 3 5-day Suspension

Ø 4 3-day Suspension

Ø 2 2-day Suspension

Ø 3 1-day Suspension

Ø 36 Letter of Reprimand

Ø 1 Demotion

Ø 2 Removal

Ø 3 Resignation (in lieu of involuntary action)

d. Final Year-End Data Posted Under Section 301(c)(1)(B)

The final year-end data posted pursuant to section 301(c)(1)(B) of the

No FEAR Act is included in Appendix 2. The final year-end data indicate that

during FY 2006, there were 484 administrative complaints of discrimination filed. Among the 484 complaints filed, 197 complaints were dismissed. Among the remaining complaints, there were two cases resulting in findings of discrimination.[8] These two cases resulted in findings of discrimination after hearings before EEOC administrative judges. One case identified retaliation pursuant to Title VII and the other identified violations pursuant to the Rehabilitation Act.

e. Policy Description on Disciplinary Actions

Section 203(a)(6) of the No FEAR Act requires that agencies include in their annual Report to Congress a detailed description of the policy implemented by the agency relating to disciplinary actions imposed against a Federal employee who discriminated against any individual in violation of any of the laws cited under section 201(a)(1) or (2), or committed a prohibited personnel practice that was revealed in the investigation of a complaint alleging a violation of any of the laws cited under section 201(a)(1) or (2). Further, the Act requires that, with respect to each such law, the Federal agency report on the number of employees who were disciplined in accordance with such policy and the specific nature of the disciplinary action taken. OPM’s final regulations on Reporting and Best Practices published on December 28, 2006, define discipline as “any one or a combination of the following actions: reprimand, suspension without pay, reduction in grade or pay or removal.”[9] OPM expects Federal agencies to report disciplinary action taken whether or not there is a formal finding of discrimination.[10]

There are four policy statements issued by the Secretary of Transportation that reinforce DOT’s commitment to establish a workplace free from discrimination, harassment and retaliation. The DOT employees are accountable for their actions which are outlined in these policy statements, namely, “Equal Employment Opportunity Policy Statement” (See Appendix 4); “Policy Statement on the Prevention of Harassment” (See Appendix 5); “Policy Statement on Whistleblowing” (Appendix 6); and Policy Statement on the Notification and Federal Employee Antidiscrimination and Retaliation (No FEAR) Act of 2002, Public Law 107-174” (See Appendix 7). The Equal Employment Opportunity Policy Statement emphasizes DOT’s determination to subject employees to appropriate disciplinary action for engaging in unlawful discriminatory practices or allowing discriminatory practices to exist. The Policy Statement on the Prevention of Harassment communicates DOT’s zero tolerance of harassment against employees on the basis of race, color, national origin, religion, sex, age (40 and over), disability, sexual orientation, or reprisal. The Policy Statements on Whistleblowing and the No FEAR Act communicate DOT’s commitment to protecting employees and job applicants from interference or retaliation when making protected disclosures and enforcing antidiscrimination laws. These policy statements caution that engaging in prohibited behavior will result in appropriate disciplinary actions.

f. No FEAR Act Training Plan

Section 202(c) of the No FEAR Act requires agencies to provide training to their employees on the rights and remedies under Federal antidiscrimination, retaliation, and whistleblower protection laws. Under 5 C.F.R. § 724.203, agencies are required to develop a written plan for training employees on the No FEAR Act.

The DOT delegated responsibility to its OAs for preparing training plans and implementing them in accordance with the Act. To assist the OAs in meeting their initial training obligations by the date specified in the OPM regulation, December 17, 2006, DOT developed a No FEAR presentation, and placed it on its Enterprise Learning Management System (eLMS). The eLMS training is available to all DOT employees, and provides DOT with an efficient way to assign and document employee learning events.

Over 95 percent of DOT employees received No FEAR Act training through eLMS using the DOT’s No FEAR presentation. One OA developed its own online course, and two OAs used a combination of training through eLMS and briefings to fulfill its obligations. With one exception, the OAs will use eLMS to provide the required training to new employees within 90 days of their appointments and to re-train their employees every two years.

V. ANALYSIS OF TRENDS, CAUSAL ANALYSIS AND PRACTICAL KNOWLEDGE GAINED THROUGH EXPERIENCE

Section 203(a)(7) of the No FEAR Act requires that agencies undertake “an examination of trends, causal analysis, practical knowledge gained through experience, and any actions planned or taken to improve complaint or civil rights programs of the agency.” The DOT has examined the information reported and finds that since the effective date of the No FEAR Act, there was a decline in the number of Federal court cases resulting in judgments, awards, and compromise settlements paid by the Judgment Fund during

FY 2006 in comparison to FY 2005. The number of Federal court cases resulting in judgments, awards or compromise settlements has decreased during FY 2006 by

10 percent from FY 2005. In addition, DOT has experienced an increase in the number of cases filed administratively before the EEOC. These cases increased by 19 percent from FY 2005 to FY 2006.

Statistics indicate that the use of ADR has shown promising results in resolving formal EEO complaints. According to the EEOC’s Form 462 Annual Federal Equal Employment Report of Discrimination Complaints (EEOC’s Form 462 Report)[11] for

FY 2006, DOT reported that it offered ADR to 20 individuals in the EEO formal complaint process. Among the 20 individuals offered ADR, it was rejected by the agency in only one complaint. Among the 19 complainants who accepted ADR to resolve their complaints, eleven (58 percent) of these cases resulted in a resolution. Thus, DOT has demonstrated that by offering ADR to individuals involved in the EEO formal process, successful resolution can be achieved. Therefore, DOT believes that education in conflict resolution, early intervention, and more use of ADR at the precomplaint phase of EEO complaints will ultimately reduce the number of formal complaints.

The DOT continues to stress training as a mechanism for reducing the number of Federal court judgments, awards, and compromise settlements for discrimination cases. In addition, the requirement for Federal agencies to reimburse the Judgment Fund for judgments, awards, and compromise settlements resulting from Federal court cases serves as an incentive to agencies to avoid the potential for adverse judgments.

The DOT has gained practical knowledge and experience since the first year of implementing the No FEAR Act, and continues to recognize the importance of a centralized database that would interface with the Departmental Offices of Civil Rights and Human Resource Management, Offices of the General Counsel and Chief Financial Officer, and the OAs’ civil rights, human resources, and legal offices. Because these organizations play a vital role in meeting the reporting requirements of the No Fear Act, DOT will work to develop an information system to facilitate the process of gathering information and data from its offices and OAs.

Additionally, during FY 2005, DOT identified the need for more training for individuals directly involved in processing reimbursements under the No FEAR Act, because there had been some delay issues. However, during FY 2006, DOT reports that there have been no delays identified in processing reimbursements to the Judgment Fund. As a result, reimbursements were made within the 45-day period.

Other practical knowledge gained was the fact that sometimes when settlements are made in Federal court involving lump sum payments, neither FMS nor DOT can ascertain which amount represents damages or attorney’s fees. Since settlements are encouraged by EEOC and lump sum payments are permissible, DOT was unable to segregate attorney’s fees from damages as required by the No FEAR Act for some of the payments made from the Judgment Fund. The OPM’s final regulations published on December 28, 2006, on reporting and best practices, require Federal agencies to report attorney’s fees only where separately designated. Therefore, where no attorney’s fees are separately designated, the lump sum is reported only as damages.[12]

VI. ADJUSTMENTS TO BUDGET

Section 203(a)(8) of the No FEAR Act requires that agencies include in the annual Report “any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201.” DOT provided such an adjustment.

The Federal Aviation Administration (FAA) Management Board, in coordination with the Office of Financial Services, announced the implementation of three object classification codes to be used for EEO-related matters which have been established to identify the specific categories of funds paid. One of the major reporting elements of the No FEAR Act Annual Report is to identify funds that Federal agencies reimburse to the Judgment Fund when there is a finding of discrimination against the agency, including attorney’s and other fees, as a result of a court decision or a settlement of the judicial litigation. FAA’s new procedure also allows the agency to track the financial impact of EEO settlements and findings of discrimination at the administrative stage. The DOT will in the near future implement use of these object classification codes for its OAs and offices.

VII. DOT’s ACTIONS PLANNED OR TAKEN TO IMPROVE COMPLAINT

OR CIVIL RIGHTS PROGRAMS

(1) Identified a number of approaches in this report that may alleviate complaints of discrimination, retaliation, and violation of whistleblower laws and facilitate data collection for purposes of meeting the requirements under the Act. They included continued training on EEO laws, whistleblower protections, prohibited personnel practices, diversity, conflict resolution, and improved communications.

(2) Strived to keep 95 percent of employees trained about their rights and protections under EEO and retaliation laws, training on conflict resolution skills, and managing a diverse workforce.

(3) Utilized ADR methods to resolve workplace conflicts because the data shows that the expedited use of ADR at a high rate would likely facilitate a reduction in future EEO administrative and Federal court cases.

(4) Acknowledged that major changes in the workplace tend to trigger more complaints. Therefore, better communication from senior management to all employees about changes to policies and practices, reorganizations, and competitive sourcing initiatives may ameliorate future complaints. When employees are potentially impacted with change, timely and candid communication is essential to avoiding work place conflict and/or complaints.

(5) Drafted revisions to strengthen the 2001 DOT internal order on ADR which will authorize certain management officials to participate in ADR once a case is determined appropriate for its use and standardize the reporting process.

(6) Determined that a ONEDOT centralized tracking database system that interfaces with civil rights, legal, human resources, and financial management programs throughout DOT would assist the processing of information needed for the annual Report to Congress pursuant to the Act.

APPENDIX 1

NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION

AND RETALIATION (No FEAR) ACT

ACCOMPLISHMENTS UPDATE

This Appendix highlights the DOT accomplishments in implementing the No FEAR Act during FY 2006. The DOT has pursued the requirements of this important legislation as indicated in the actions highlighted below.

A. Legislative Implementation

Senior Management Emphasis. The DOT senior leadership maintained their emphasis on the mandates of the Act and held management and supervisory personnel accountable for ensuring that antidiscrimination and whistleblower protections laws are widely disseminated and enforced throughout DOT. During FY 2006, the Departmental Office of Civil Rights (DOCR) began a series of quarterly meetings with the Heads of Operating Administrations to assess each organization in terms of: diversity of the workforce; Title VII EEO complaints of discrimination; and responsiveness to Title VII reporting requirements and other areas of DOT’s strategic human capital civil rights agenda. At the quarterly meetings, the DOT organizations assessed achievements and areas requiring increased emphasis. The DOCR used the information obtained during the quarterly meetings to provide the Secretary of Transportation a report on meeting the No FEAR Act and EEOC’s statutory requirements.

B. Regulatory Development

The President assigned OPM with the responsibility to write the regulations and guidelines governing “the No Fear Act” under Title II of the Act. In addition, the Act directs the EEOC to issue any regulations necessary to carry out the provisions of Title III of the Act related to “EEO’s Complaint Data Disclosure.” During this reporting period, DOT’s efforts in this area primarily involved supporting OPM’s regulatory development program. On March 29, 2006, DOT offered comments concerning OPM’s proposed regulation to carry out the reporting (Section 203) and best practices (Section 204) requirements of Title II of the Act. The DOT is committed to the effective implementation of this legislation and welcomed the opportunity to comment on the proposed regulation.

C. Policy Development

(1) Ensuring EEO in the Workplace. The DOT took a proactive stance to ensure that it is a model Federal employer. The DOCR has magnified its efforts toward prevention, early intervention, and resolution of EEO complaints before they are formally filed. Highlighted below are initiatives taken by OAs to improve the workplace.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) leads DOT in the percentage of people with targeted disabilities on board. FTA has success in hiring people with disabilities, resulting in part from outreach efforts that are intended to increase the number of job applicants who are targeted people with disabilities. Particularly notable is FTA’s partnership with the Commonwealth of Virginia’s Department of Rehabilitation Services (VDRS), which has resulted in hiring many people with disabilities.

The FTA works with VDRS to place people with disabilities in 90-day internships at FTA. The VDRS assigns a “job coach” to each intern and provides accommodation support. FTA provides the interns with training and networking opportunities. A majority of the interns eventually gain permanent positions at FTA.

There are several advantages to such programs that relate to combating discrimination. Having a workforce with large numbers of people with disabilities helps to promote awareness of the need to accommodate people with disabilities and to avoid decisions that inadvertently discriminate against people with disabilities. Additionally, having a program that encourages applications from people with disabilities avoids inadvertent discrimination in the hiring process.

(2) Employee Disciplinary Actions for EEO and No FEAR Act Violations.

Some OAs currently have tables of penalties for disciplinary actions covering EEO and No FEAR Act violations. During FY 2006, DOT reported 68 disciplinary actions for discrimination, retaliation, harassment, and violation of whistleblower protection laws.

(3) Evaluating Supervisory Performance. DOT performance management policy requires an evaluation of every supervisor and manager against an EEO/Diversity standard that includes monitoring the work environment to prevent instances of discrimination, disrespect, or harassment, and taking timely action if sexual harassment or other discriminatory treatment is observed, reported, or suspected.

(4) Evaluating Executive Performance. DOT has made supporting EEO and diversity efforts a leadership measure in the performance plans of its Senior Executive Service employees.

Employee Awareness and Training

(1) By December 17, 2006, DOT had trained 95 percent of all employees on the

rights and responsibilities of the No FEAR Act.

(2) During FY 2006, DOT briefed and provided training to its senior staff, managers,

supervisors, and employees on a variety of topics which included the following:

· The No FEAR Act;

· EEO Law;

· EEO complaint process;

· Conflict resolution communication skills;

· Alternative Dispute Resolution (ADR) and effective mediation tools to address fairly and objectively issues and concerns arising in the workplace;

· EEOC’s Management Directive (MD) 110, which governs the processing of complaints of employment discrimination;

· EEOC’s MD 715, which requires the establishment of effective EEO programs; and,

· Reasonable Accommodation for Employees with Disabilities.

(3) FAA developed an online course on the prevention and reporting of harassment

(including sexual) to be included in training plans for all managers and supervisors.

(4) The Federal Railroad Administration and the Federal Highway Administration have required their managers to participate in the ADR process when it is offered in conjunction with complaints. Since the requirement of participation in ADR by management, complaints where ADR was offered resulted in mediation with a resolution.

(5) The OAs are participating in the U.S. Office of the Special Counsel’s (OSC) Certification Program, which is designed to inform supervisors and employees about their rights and remedies under the Whistleblower Protection Act. The OSC Certification Program requires the OAs to provide information to current and new employees, train supervisors and managers on the Act, place posters in OAs’ work locations, and create a link from their websites to OSC’s website. The DOT provided assistance to the OAs by making OSC’s Whistleblower Protection Act training module available in the eLMS. This enables the OAs to assign the training to supervisors and managers and track their completion of the assignment.

(6) Over the course of FY 2006, 98 percent of PHMSA supervisors have participated in one or more conflict management training events. The PHMSA senior staff are encouraged to participate in ADR when appropriate. PHMSA provided a “mini-training” session on the “do’s and don’ts” of effective communication.

(7) The DOT’s Center for Alternative Dispute Resolution provided conflict

management related training to approximately 350 employees and managers (50 employees and 300 managers) through 11 specialized training courses and 4 open-enrollment courses. The center also provided coaching, mediated 10 cases, and provided facilitation for 3 large groups.

E. Systems and Process Improvements

DOT implemented several initiatives aimed at improving data systems and processes:

(1) The DOCR enhanced its automated EEO complaint tracking system (iComplaints) to allow DOT organizations to access certain real-time EEO complaint status information from the pre-complaint through the formal complaint stages. This information facilitates intervention by various civil rights staffs with managers/supervisors to resolve issues at the lowest possible organizational level. It also aids managers in developing and analyzing trends and identifying “hot spots” requiring immediate attention.

(2) FAA, DOT’s largest OA with over 45,000 employees, has instituted a system of matrix team reviews on a monthly/quarterly basis. The matrix teams review new complaints entering the EEO pre-complaint process to see if there should be management intervention such as mediation, settlement discussion, etc. These teams are helpful in fostering early EEO complaint resolution.

APPENDIX 2

2004-2005 No FEAR Supplemental Court Cases and Disciplinary Actions

FY 2004

Federal Court Cases Pending