ML20147F563
| ML20147F563 | |
| Person / Time | |
|---|---|
| Issue date: | 10/06/1978 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML20064C468 | List: |
| References | |
| REF-10CFR9.7 SECY-78-535, NUDOCS 7810200023 | |
| Download: ML20147F563 (14) | |
Text
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UNITED STATES I NUCLEAR REGULATORY COMMISSION October 6,1978 POLICY SESSION 1 TEM sEcy-78-535
.l For: The Commissioners From: Howard K. Shapar, Executive Legal Director )
Thru: Executive Director for Operation
Subject:
CLASS COMPLAINT OF DISCRIMINATION FILED BY NRC 'l EMPLOYEE l
Purcose: To request Commission decision on whether to accept or re' ject class complaint of discrimination.
Discussion:
BACKGROUND On June 16, 1978, Ms. Dorothy Marie Slater, as the agent of a class, filed with the Director of the NRC Office of Equal Employment Opportunity a complaint alleging that .
NRC had discriminated against women and blacks in its employment practices. The alleged class consisted of i all women and all blacks who have been employed, are ;
employed or might be employed by the NRC. Ms. Slater ,
is a Licensing Assistant, Grade GS-ll, Office of Nuclear Reactor Regulation. In accordance with Civil Service Comission (CSC) regulations applicable to class dis-crimination complaints, the class complaint was forwarded to the Civil Service Comission's Federal Employee Appeals Authority together with a legal brief prepared by the Office of the Executive Legal Director.1/ l
Contact:
Jay W. Maynard, ELD 492-7241 ,
1/ The Equal Employment Opportunity Act and Executive Order 11478 vest in the CSC sole authority to establish Federal government procedures for dealing with Federal employee discrimination complaints. The NRC is subject to the regulations promulgated by the CSC regarding such complaints. The NRC, in its brief, argued that the complaint ,
should be rejected in its entirety because it did not meet the oro-cedural requirements of CSC regulations covering class actions. The Agency was not permitted to comment upon the merits of the complaint.
7 & t 010 o6 a ~^s l SECY T.0TE: _ This paper is currently sttieduled for discussion at a '
Commission Meetino on Tuesdav. October 10. lo7A.
^ "
[ A Complaints Examiner was appointed by the Civil Service Comission to review the class complaint file, .. including the agency's legal brief and information submitted by the complainant. . This review by the Complaints Examiner was for the sole purpose of detennining whether the complaint satisfied Civil Service Comission procedural requirements governing class . actions. The review did not involve the merits of the complaint. The function of-the Complaints Examiner at this stage of the process was to make a ' recomendation to the. agency as to whether the complaint should be rejected or. accepted in whole or in part for processing as a class complaint.2/ Once a comp,laint is accepted by the agency in whole or part, preparations begin for a hearing on the merits before the Complaints Examiner.
On September 25, 1978, the Complaints Examiner recommended i to NRC that a part of the complaint be accepted-as a class '
I complaint because it met the procedural requirements of the Civil Service Comission regulations covering class actions.
The Examiner further recomended that the greater part of 3 the complaint be rejected because it was procedurally defective.
THE CIVIL SERVICE COMMISSION RECOMMENDATION The decision of the Complaints Examiner, which was received October 2,1978, in sumary, recommends:
- 1. a. That Ms. Slater be accepted as the agent of a class comprised of all women employees in NRC.
This would result in Ms. Slater acting on behalf of all NRC women employees in matters relating to the. class action.
- b. That the sole issue to be accepted for determina-tion on the merits is whether the NRC policy 2_/' It must be understood;that class' complaints are completely distinguishable from individual complaints and that the. procedural requirements are di f ferent. .If the NRC rejects the class complaint in whole or part, numbers of the alleged class .may still have the right to file individual -
' discrimination complaints with the NRC. l
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, . relating to auditing positons in response .
to requests for promotion has had a dis-criminatory impact upon women employees of theNRC.3]
Ms. Slater contacted an EE0 Counselor on March 2,1978, and alleged that there had been a disparate impact on women employees as a result of audits of positions on pro-posed promotion actions. She alleged that more female employees than male employees had their positions audited and promotions dis-approved. Ms. Slater herself was denied a
. promotion from GS-il to GS-12 based upon an audit which evaluated her position as a GS-9.
- 2. The Complaints Examiner recommended that all other allegations in the class complaint be rejected because of procedural deficiencies.4/ In brief, the remaining allegations related to the following:
The Complainant contacted an EE0 Counselor on a.
May 2,1978 indicating that she wished to expand her complaint to include all professional women who had been discriminated against in the areas of salary, promotions, length of time in grade and training. However, the Complaints 1/ ~.T~iie[NAC l a;r'g'ue[ifi[ti~b' rte'f triat the allega't[cii"s'bulfbe h relected _
on procedural grounds for two reasons: (1) the issue relating to position audits was a classification matter and not covered by EE0 discrimination regulations; (2) the allegation did not satisfy the "numerosity" requirement of the class action regulations.
It was argued that the fifteen women who had been refused pro-motions because of an audit of their positions could pursue their complaint as individuals rather than as a class. The Examiner, however, by finding the allegation met the procedural requirements of the regulations, implicitly rejected both argu-ments of the NRC. Concerning the "numerosity" requirement, the Examiner concluded that the class constituted all women in the NRC, approximately 700, "who potentially could be affected by the policy '
of auditing jobs in response to promotion requests."
4] This part of the recomendation accepts, in effect, the NRC argument in its brief that the same allegations should be rejected on procedural grounds.
/
Examiner found that Ms. Slater failed to comply -
a' with the Civil Service Commission regulations which require her to indicate how and when she had been individually affected by such alleged ,
discrimination.
- b. The formal complaint filed with the NRC on June 16,1978 raised for the first time an allegation of race discrimination and also included at least twelve new allegations of discrimination relating to employment matters.5/
The Examiner found that these matters had not '
been presented to an EE0 counselor prior to the filing of the complaint as required by the reg-ulations.
t COMMISSION OPTIONS It must be emphasized that the action the Comission is asked to take by the CSC regulations at this time does J not in any way relate to the merits of the class complaint.
TEii Connission must now decide which allegations contained in the complaint, if any, should be processed as a class complaint for ultimate determination on the merits, tnat is, which allegations will be litigated before the Hearing Examiner. The Comission is not asked at this time to decide whether these allegations have merit.
The Commission must also determine the composition of the class, e.g. all wcmen, or, as alleged in the complaint, "all blacks and all females who have been employed, are employed or might be employed by the NRC," or some other segment of the NRC workforce.
The Commission has the following options in making its decision:
Option 1. The Commission may issue no affirmative decision.
5/ The complaint filed by Ms. Slater is provided as an attachment, Appendix A.
- If this be the case the NRC will be deemed to have adopted the recommendation of the Examiner as its own decision. This occurs because CSC regulations provide that if the NRC does not issue a decision within ten calendar days of "eceipt of the Examiner's decision (or by October 12), the Examiner's recommendation will automatically become the official NRC decision.
Option 2. The Commission may issue an affirmative decision before the October 12 deadline to accept the recommendation of the Civil Service Complaints Examiner. This would have the same result as in Option 1 above.
Option 3. The Commission may reject the class complaint in its entirety.
Option 4. The Commission may accept the class complaint _
in its entirety, i.e. , as originally filed.
If this option is accepted the class will be comprised of: all blacks and all females who have been employed, are employed, or might be employed by the NRC. The complaint as filed alleges that this broad class has been aggrieved by numerous discriminatory employment practices at NRC. A copy of the original complaint is attached.
Option 5. The Commission may decide to accept a part of the class complaint other than the part recommended for acceptance by the Complaints Examiner. This means that the Commission may accept a class other than "all women employed at NRC" (as recommended by the Examiner). The Commission may also accept issues in addition to "the impact
. of auditing jobs ..." (as recommended by the
. Examiner) for determination on the merits.
COMPLAINT PROCESS FOLLOWING NRC DECISION.
Once the NRC decision is made, it must be communicated to the class agent (Ms. Slater), her representative and the -
Civil Service Commission Examiner. If the NRC decides to
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[ accept the recommendation of the Examiner, it will result in a partial rejection of the complaint. Ms. Slater may appeal such rejection to the Appeals Review Board (CSC) within 15 days; or she may file a class action in District Court within 30 days. Ms. Slater also may begin anew by filing her discrimination complaint within tha NRC as an individual with respect to these rejected portions.
Should the Commission decide to accept the complaint on behalf of any class, members of that class must be notified of such acceptance and their right to remove themselves from the class. In this event the Civil Service Commission will be notified and OELD will begin to prepare the case for *a hearing before a Civil Service Commission Examiner.
The Complaints Examiner will issue a recommendation to the NRC regarding disposition of the merits of the complaint and an appropriate remedy, if any, for the class members.
The matter will then come before the Commission for a
! final decision on the merits.
Recommendation : The Office of Administration recommends that the Commission "
adopt Option No. 2 which is to accept the recommendation of the Complaints Examiner, Federal Employee Appealc authority (CSC). The recommendation of the Examiner states in summary:
- 1. That Ms. Slater be accepted as the agent for the class.
- 2. The class will be comprised of all NRC women.
- 3. The issue for determination is whether the NRC policy relating to the auditing of positions in response to requests for promotions has had a discriminatory impact upon women employees of the NRC.
Note: Should the Commission accept the recommendation:
- 1. Ms. Slater, her attorney and the Civil Service Commission will be notified of the decision.
- 2. All NRC women will be notified that a class complaint has been accepted on their behalf.
Such notice will also inform them of their right to remove themselves from the class if they wish to do so.
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- 3. The ED0 will appoint an agency representative from OELD to represent the agency in litigation .
before the Examiner. The representative will consult with NRC officials as necessary, during the preparation of the Agency case in this matter.
Howard K. Shapar Executive Legal Director Office of the Executive Legal Director
Enclosure:
- 1. Appendix A-Class Complaint DISTRIBUTION Commissioners Commission Staff Offices 5xec Dir for Operations Secretariat l
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- i r IC C la GARY HowAR o SI M P SO N l 4?to MCel1CCit tia r L A NC. Sun f t 40 7 ts OCTHCSOA, f.t A R Y L A N C 20t)l4 ~~
W A S Hit e'i ? O f t C ( F I C r. j
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I June 15, 1978 ;
. 1 Mr. Edward E. Tucker, Director !
Office of Equal Employment Opportunity !
U. S. Nuclear Regulatory Commission l
Washington, D* . C. 20555 i
Dear Mr. Tucker:
i i
i Enclosed please find the formal complaint of discriminati i for the above-captioned matter. Please advise me of any further steps that may need to be taken. Thank you very j much for your attention.
' fours very truly,
./,!, ~ ,,.( -C.. . ., ~
d .:3 Gary Howard Simpson
)to s t. , - ._ (- t t.L A. s, r . t s.c . !. t.
l Uoro CE }!dEe S J.a ter h
, Eurol.hy thric Slater
- 1. Marie Slater's emplc,yment hictory is an foJ10ws: In June 1959, she was hit"cd as a C3-3 clerk /ctcng n pher by AEC. She was uncigned to several prcgram offices an a secretar/ vinile naintining this positien and j +'as pror,ressively prcwted from a C-3 to a GS-9. In 107ti , Ma. Slater was laterally transferred to an envirc,nmental licensing assi.ntant pcsition '
as a GS-9 fcr the Envircracntal Projects Branch Mo.1, Divicien of Reactcr Licensing (new the Divicion of Site Safety and Environmental Analysis) of the Nuclear Regulatory Cet:nission. In 1975, she was promoted to GS-13.
In this position, Ms. Slater served as di oct administrative suppcrt to the Branch Chief in tranaging assigned projects. She ic responsible for reviewing and processing the non-technical aspects of licensing nuclear pcwer reactors.
- 2. Marie Slater's prior experience and qualifications are:
Ms. Slater was hired in 1959 after ccmpleting high school. Since appmxi-mately 1962, Ms. Slater hac attended ccliege with a concentratica in Businer Mainistration. To date, sh2 has approxi;nately two years of college credit.
- 3. From April to June 1977, her supervisor, George Knighten, Branch Chief of Envircnmental Projects Branch Mo.1, prepared and sent a prcn.cticn i Im:no re: Marie S3ater requesting that she be upgraded from a GS-11 to a
! GS-12. Upon receipt of the nr_mo, Pc.rsonnel requested that a desk audit 'r2 conducted. The re: ult of the au]it, which tcck place in /q,ast 1977, was that Mc. Slater's pio:rtion was deni.ed end the positi:en rated as a GS-9.
(Though Ms. Slater did net loco her "-S-11 rating) . At this point, Mr. Ysnichton, in cccp7 ration with tan Peracrcel chico attetr.pted tc urht0
, the deceripticn of tha ;ccition ir cedor to cbtain a G3 ratin,; which cul.:
realistice.lly reflect the functic;..: c:ci respcnsibilities of the rcsitica.
Nothing ca 2 of this attempt.
in .ove,c:er or t ece:mer Ni7, a white *.:ca.m occupyind a c.cor. sing a cintant p alt cn ::.th ahest icent:.ca., rer.':a -
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an audit being conducted by Perce: nd . '~his *: :mn held a lic. : sing aart i:'
position with the Divisi:n of Opereir; F.cccters. At this paint , "s . ^1a tc :
was inferneed ths; Oho mi t c.t te eligib1 to file a racial din.H:dnat .
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'.n cc:nplaint . She did not p :c.ce this al':crn.;tive. In subacq.m.t cice :.sa:c.
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Lacically: (1) 1 hat the Wr6n of '. ctpin:; de , the nrado creep in11s F.'
heavily upon woman than nen; (2) that the P escnnel Offico k.:ks a c':rH 5-
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D rothy Marie Slatce -
Page Two w
here is that the acceptance of the results of the re-audit will be 3cf t up a to the Director of Ad:ninictration, to whcm Personnel re.ecrtc ; (10 Ms. Sla t i -
'.' has been a GS-ll for a little over three years. She was oliv.ible for prcr '
after two years. She h:o been told that har prccotion has not been of fica'.'
denied and is still pending. Yet sh2 has not cbrained any prcmotien for _ .
than a year after eligibility. Mc. Slater objects not only to the r^sul ts -
the Personnel audit but also to the precedure employed in evaluating the infonnatien obtaired by the audit. A'1 L./.. positions in the three divisin.
having L.A positions were also ev.luated. Yet two divisions were put tog.:h i for a single evaluation'$ucted by an cutsider while her division was sep-u " '
for evaluation by the outsider.. She alleges that this evaluation is incc:?: l as it leaves out respcnsibil:. ties or her pos:.t:.cn w. . .nicn are entit,cd
. : to .te ,
rated.
Note: She has provided copies of marcs. , etc. and is willing to provide sud metros as may be needed to review her case.
Ms. Slater has been d .scriminated a;;ainst in the tennc and conditien i
of her employment; she haa r.ot haan prcroted ac she shculd have been; rhe
- has been subject to job uudiM pricr to consideratica for pr.rtotion whercu males have not b
- en, sha hac roccived too Icw a ;-ade rating when her education level and experience are censid2 red, af.d, ali. hough she has recei" -
scm2 training, she has not roccived apprcpriate quantit'/ and quality c:
t,ra;.n:.ng .
The agency h.:s engar.,cd in a pattern and pr'.ctice of dimriminat en against fa. alas in the tenr.3 and c:enditicas cf their smplay::ent in the ca .e tranner and details as c':ated in tho . recedi: :., Nra6ra'h. .
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Persons simil ely si~uated. 'I"nc c'. ass .-:hich plaintiff repres"nt i-C vi 6 3' Y.'swM,. o #A a.l ' k.,, '#?. . kr2 ? "..i <' .i 1 .#...; ,T. ' ' ^.' . '. O .". . ' o M. . e. ~1 e. . .n. '.o,j1 A. , n -n. -~..d<,'
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or ntight be e .plcyed t,y ths uclear c.;ul.ccry c:c:.rden E n, cho have M .
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i:npractical. /21 r.cmi:ers of the c]acc 1cssccs cc:: cn richts and scch a cccton rc.3le:. .
The intemsts of said :. lass of fe:a2e aM black empicyees ara ah . * '
and fairly represented :'y iaintz f r bocc.use t hcv have ruf fered c.nj c .n i* -
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Dorothy Marie Slater .
Page Three .
advers'51y affect their status as employees because of their sox and race including, but not limited to the follouing:
.f' e
(a) denial of promotions ;
(b) failure to give women and blacks the same ranh, title, and pay as those given whites and men who have the same responsibilitics; under-utilizing trained blacks and women by assienne:
of ro(c) utine or menial tasks:
(d) engaging in reprisal activity as a result of women or blacks making use of employment discrimination complaint procedures; ,
(e) unequal treatment of women and blacks by supervisory personnel as compared with whites and men; i
(f) the utilication of a system of promotion which relic' on the unchecked, unvalida ted subj ective recommendations o f white supervisory personnel; (g) excluding women and blacks from high training pregr staff meetings and informal planning sessions open to simila; qualified men and whites; (h) assiv.nments and transfer of women and black emolovac into work aroups and iob catecories with low advancement potential (i) failure to advise women and blachs concernin:;
available job openings despite priority and first consLdern' provisions resulting from reduction-in-force procedures:
(j) denial of due process in proceedings regarding en.p'.1 ment discrimination complaints; (k) discouragement of filing of discrimination complain' and (1) failure to give time o f f to women and blacks ul o wish to upgrade,their own skills.
Discriminatory ac tion by def endant has resulted in a of.:.
exclusion of blacks and women from senior grade levels.
Defendant haa c:<cludsd icmen and blachs from tr, inia; n" '
education nragra:u designed to enhance opportunn/ for cc' '
advancement.
Defendant has acted or refused to act on creunds';:enern; applicable to thO O l a i, s . L'nder these c i r,'uP 1 b,' n c r 3 . )n' a n d ;\,w I a -n s n-.- .
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. 4 Dorothy Marie Slater Page Four -
isap[ropriate, and a class action is superior to any other
, , available method for the fair and effi,cient adjudica" tion of .
,8 the controversy.
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(FOR AGENCY O'M ,
. COMllLAINT OF DISC 1HMie' A i10N .
IN THF ItEDCH AL GOVERNMUt f l' DEC AUCC OF RACE. colon. nt!LIGION SCM, N A fl0.*d AL Of t! GIN. On AGE .
l ele s s, Ivpe ne reviet
- 1. WH AT 11 YOU n (COMP LAlti ANJ'SI F U t.L N AMC / , 7. WH A T 47. Y QtFI T F L LP H O'il g g NUMcC H INCLUOlf4G Af.C A CCO 3 Dorot.hy Marie Slater -'aoent for the clased.--
( YOUn $1rit LT ACOnCSG (CH HO NUMGEn OH l'ObT OTFICE COX NU'.10E R) HOMCFHONE:
- 301-774-4061 1923S Chandlee Mill Road -
YOUR CIT Y ST A T F. ZIP CCOh Wong PHONE; 301-492-8425
. Sandy Spring, Maryland 20060
- 3. YdellC11 F C O f fl At. O T P ICE 00 YOU SE LIEV L CISC H 6 MIN A I I O 4. A R E Y OU NCW V.On46NG FC A Tr4G F EDE A AL Gb'Nftt4MC rJ T 7 AG AINS T YOU! it'en pers a separate tomotons'est (cer1 for cath office gygg .,.O C H O %W'.'n 1 tuberta Ttsu t>tistve .lisertm anated agasnst puu.) . \.
C NO (CONTINUE WITli,00CUTION 5.1 A. N AM E OF O FF LCli. WHICH YOU OE LIEVE OthCHIMINA ICO A. NAMC OF AGENCY WHE RE YOU WOf'K:
. AG Alf4ST YOU,1 ,
Division of Pe'rsonnel &' other unkncun U. S. Nuclear Regulatory ComW.ssion ,
D. STHEET AconEh5 OF GFFICE: O. ST AEET ACOngSS OF YOUR AGCNCY C. C I T Y ST A T E ZIP CODE C. CITY STATE ZIP CODE Washington, D. C. 20555 __
O, f 4 AL.t L AflO TI T LE Of2 PC ASONtG) YOU SF L. LEV S 0. WHAT 13 THC TITt.E Ardo GHADE OF YOV A JOBP OtSCnla.tlN AT E D AG AINST YOU (i/ yrsu k nowl:
i Division of Personnel & other unknown Licensing Assistant,'GS-ll . . ,
-) AT E ON WHICH MCGT l 6. CMC **.' st r.l UW W tY YOU C CLIM YCV u E fah OthC'41Mif4 AT CO v.C.WitiT Mf'.18 I? i C8 w0'."'; l, fsACE. lf" 30. ST A T E Y OV A H AC E B l a k lElil e I, foM l o 's {
SCill i I ATIOP4 TOOK ',
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