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    Proving Your Case at the Hearing.                                           How to Prepare for a Hearing

    EEOC Hearing for Federal Employment Discrimination Cases

    Outline of the Hearing Process:  The following is a typical hearing process.  Some steps may be skipped
    depending on the judge's ruling and/or Agency's or Complainant's motions/responses, settlement
    negotiations, and other circumstances peculiar to the case.  A more detailed explanations are provided below
    after the following summary.

    Summary of the EEOC Hearing Process:

  1. Request an EEOC hearing.    (Click for EEOC hearing request form.  For Designation of Representative
    form.)
  2. Order issued from the EEOC to the Agency (copied to the Complainant) to produce the Investigation
    File (IF), including the Report of the Investigation (ROI), within 15 days.
  3. Receipt of Acknowledgment and Order (sample) issued by the assigned administrative judge.  This
    Order is one of the most document you will receive from EEOC administrative judge (AJ), as it contains
    important deadlines governing the entire hearing process.  Read the Order carefully and observe the
    deadlines specified therein.
  4. Settlement proposal and, if applicable, negotiation.  Settlement is encouraged, not mandated.  AJ
    cannot forced the parties to settle.  AJ can order the parties to contact each other to discuss settlement.
  5. Discovery by both Agency and Complainant to be initiated within 20 days of receipt of Acknowledgment
    and Order.*
  6. Response to the discovery requests - usually due to the other party within 30 days of receipt of the
    requests.*
  7. Deposition.  Agency attorney may depose you; as well as you can depose Agency decision makers and
    witnesses.  If you want deposition, you must pay for the court reporter and the transcripts of the
    testimonies produced during your deposition.  You may purchase transcripts produced during Agency's
    deposition (of you).
  8. Motion to dismiss or for summary judgment filed by Agency in most cases.  This must be responded
    to in order to avoid a decision rendered without a hearing.*  You may also file a motion for a decision
    without a hearing if you think that the Investigation File contains "drop dead" evidence showing
    discrimination or retaliation.  Otherwise, don't file a motion for a decision without a hearing.  
  9. Scheduling Order for prehearing and hearing.  (Depending on the judge, the scheduling order may be
    issued earlier or it may be issued after a prehearing conference.)
  10. Prehearing statement to the judge, if requested by the judge, containing summary of relevant facts and
    argument, supporting evidence (or reference to evidence), list of witnesses, and damage claims.*
  11. Prehearing conference by telephone.  (In limited cases, this may take place before prehearing
    statement submission, depending on AJ's order.)
  12. Hearing.*
  13. Judge's Decision (If the judge's decision is not in your favor, you may request and argue by submitting
    a brief to Agency's EEO HQ why Agency should not incorporate AJ's decision when issuing the Final
    Agency Decision (FAD)).
  14. Issuance of Final Agency Decision, which can be appeal to Office of Federal Operations.

    (* indicates labor intensive legal work, written or verbal.  See below for details on each step and for samples of
    motions/response to motions.)


    Below are more detailed explanations on the hearing process outlined above.

    Requesting a hearing:
    When you receive the Report of Investigation at the end of the Formal EEO process, you will be notified of your
    right to request an EEOC hearing before an administrative judge.  (Click here for EEOC hearing request form.)


    The mixed case complaints can only be appeal to MSPB, not to EEOC.  (There is no right to an EEOC
    hearing on a mixed-case complaint involving removal or termination, suspension of more than 14 days,
    furlough, or any other actions appealable to MSPB.  However, you may appeal a mixed case to MSPB.  
    See MSPB appeal.)


    EEOC Prehearing Process: Once you request an EEOC hearing (to have your case heard by an administrative
    judge), the EEOC hearing unit will notify the Agency of its obligation to produce Agency's Investigative File (IF),
    including the Summary of Report of Investigation (ROI), within 15 days of the notice (29 CFR, Part 1614.108
    (g)).  Failure to provide the Investigative File (including ROI) may result in a default judgment against the
    Agency.  If Agency fails to produce Investigative File, you should write to the EEOC hearing unit for a default
    judgment against Agency.  See an actual default judgment.  See a motion filed to request such a judgment.

    Note: EEOC rejected Agency's defense that, due to EEO staff transition or departure, the Investigative
    File could not be produced on time.  See Lomax v. Depart. of Veterans Affairs, EEOC Appeal No.
    0720070039 (October 2, 2007), which states in part: "The agency's internal situation cannot be used as
    a defense to its failure to comply with the Commission's regulations."


    There is a pending complaint filed by Association of Administrative Law Judges (AALJ)  in an attempt to
    strike down the OPM rule requiring the EEOC judges to be active bar members while functioning as
    Administrative Law Judges.  See more detail on the AALJ complaint.

    Acknowledgment And Order

    Once a case is docketed at EEOC for a hearing, an administrative judge (AJ) will be assigned to the case.  The
    AJ will issued an Acknowledgement and Order (sample) specifying a series of deadlines.  They involve due
    dates for discovery (see below), filing motions, responding to motions, etc.  Depending on AJ, the deadline for
    submitting a prehearing report may also be set.  See below for Prehearing Report.  

    Once the judge has been assigned to your case, you can make a motion to add issues not accepted,
    overlooked, or not investigated by the EEO investigator or by the Agency.  You can amend your charge at this
    time (if appropriate and timely) by filing a motion to the judge to add new issues or on-going acts of
    discrimination or retaliation.  (Watch for the deadline to do so in Acknowledgment and Order.)  See a blank
    motion to amend the claims.  For more detail, see Amending Complaint.

    Any request you want to make to AJ must be made in the form of a "motion."  All submissions or motions to the
    Judge must also be served to the Agency counsel and must be accompany by a certificate of service.  (See
    Forms for sample motions)  Motions must be carefully supported by evidence, including witness affidavits
    (including yours).  (Download a blank affidavit form.  Hearsay evidence is admissible in the EEOC hearing
    proceeding.)  Agency will most likely oppose every motion you file.  You should file a Response to Agency's
    Opposition to Complainant's Motion to .....  (See the Acknowledgment and Order for deadlines for filing
    responses.)

    Once the Agency's Investigative File (including the Summary of Report of Investigation) is submitted to the
    judge by the Agency, everything in it becomes a part of record automatically for the hearing proceeding.  You
    need not submit to AJ any documents already contained in the Investigative File in support of your motion or at
    the hearing itself (provided that they are clearly marked as exhibits or tabbed).

    Amending the Pending Claim to Add New or Dismissed Issues/Claims

    You may add new issues which have occurred after completion of Agency's EEO investigation or during the
    hearing process (which could last 6 months to 2 years or more).  To add a new claim, you must file a Motion
    To Amend to the Judge.  The motion must be filed within the 45 days of occurrence of the event you are
    claiming as discriminatory or retaliatory.  See a sample of Motion to Amend.  See more on Amending
    Complaint.

    At any time during the hearing process, you may file a Motion to Amend (verbally or in writing) to the judge to
    clarify or articulate the claims differently or to add another basis of discrimination such as race, age, retaliation,
    etc.  See more on "issues" and "bases" of discrimination complaints under How To Write Complaint.

    You may also file a Motion to Amend to restore the claims/issues which were improperly dismissed by the
    EEO Director/Manager/Analyst during the formal complaint process.   Such motions must be filed generally
    within 30 days of receipt of Acknowledgment And Order.

    Discovery

    The EEO MD-110, Chap. 7, VII(A) provides that:

    The administrative judge will advise both parties that they will have at least 60
    days to develop evidence.  They can do this in the same manner as in
    individual cases, i.e., through interrogatories, depositions, requests for
    admissions, stipulations, or production of documents.  The parties may object
    to production on the grounds that the information sought is irrelevant, overly
    burdensome, repetitious, or privileged.  

    It is very important that you or your representative initiate the discovery on time (usually within 20  days of
    receipt of Acknowledgment and Order.  See the Order issued to you.).  Discovery includes Interrogatories, the
    Request for Production of Documents, and the Request for Admission.  You can request for Agency's decision
    makers to response to your written Interrogatories (the questionnaires you can send to Agency counsel
    requesting responses from Agency's decision makers).  You can ask vital questions to your supervisor or any
    other Agency decision makers who played a role in the discrimination issues you are alleging.  You may also
    ask questions to your witnesses who are currently employed with the Agency.  Discovery requests are served
    to the Agency counsel or representative, never to the judge.  You need to specify the deadline (usually within 30
    days of receipt, per Acknowledgment and Order) for Agency to produce the response.  

    For a sample of the Interrogatories and the Request For Document Production, click here.

    If the Agency fail to respond sufficiently, adequately, or timely to your discovery requests, you can file a motion
    to the judge to compel the Agency to respond to your discovery requests.  (See a sample of motion to compel)  
    Watch for the deadline for a motion to compel - usually within 5 days of receipt of the deficient response or of
    Agency's failure to meet the deadline you gave.)  Before filing a motion to compel the Agency, however, you
    must attempt to work out with the Agency regarding Agency's compliance to your discovery requests (generally
    via a phone call or a letter requesting the status of Agency's response.)  See a sample of a letter trying to work
    out the non compliance.  More on how to request documents and information.

    Agency rarely will respond to your discovery requests in full--that is, sufficiently and adequately.  Typically,
    Agency will object to most, if not all, of your discovery requests and, not withstanding the objections, will
    provide deficient responses.  In order to force the Agency to produce thorough and detailed responses to your
    Interrogatories and Request for Production of Documents, you must file a Motion to Compel to AJ (and copy it
    to Agency counsel.)

    See more on Discoveries.                                 

    See an EEOC Judge's testimony regarding Agency's abuse of the discovery request.

    Motion to Compel

    Before filing a Motion to Compel, the following condition must be met: 1) Your discovery must be initiated timely
    (within 20 days of receipt of Acknowledgment and Order); 2) You must attempt to work out with Agency attorney
    Agency's failure to comply with your requests.  For example, if Agency attorney requests an extension based on
    reasonable grounds, you should negotiate the extension and give a shorter extension (like a week) than the
    longer one requested.  If Agency failed to produce any response (including any calls regarding the discovery),
    you should, as referenced above, send a letter (sample) notifying Agency of its obligation to produce a
    response by the due date you specified (usually within 30 days of receipt of your discovery requests).  3) If you
    receive Agency's discovery responses but find them deficient, you must also try to work out with the Agency to
    obtain a sufficient responses by showing why Agency's responses are deficient.  Showing this will be the
    grounds for your argument later on for arguing to AJ why Agency must be compelled to produce more
    adequate responses in your Motion To Compel.  Show how each item in the Interrogatories or in the Request
    for Production of Documents are deficient, such as: "Documents produced by Agency on this XX date does not
    fall within the time period specified in the discovery request....", or they are redacted so much that no one can
    understand, or, for example:

    Regarding Agency Response to Request for Production of Document No. 1:

    Agency failed to provide, among others, copies of requested documents: emails issued by
    Chris XXX and Larry XXX.  Agency is directed to produced them by the due date specified below,
    as a response to Complainant’s document production request.

    Regarding Agency Response to Request for Production of Document No. 2:

    All relevant records dating from October 1, 2007, the performance period for which Complainant
    was rated unfairly, to the date of Mr. XXX's retirement in 2010 [contrary to Agency's objection]
    must be produced.  

    History of EEO complaints against Mr. XXX [which Agency objected to as irrelevant] is relevant;
    therefore, all records pertaining to the history must be produced.

    All records pertaining to the status of EEO activity outside Complainant’s protected classes
    [which Agency objected to as irrelevant and immaterial] is relevant insofar as the records
    pertains to the employees who were ranking similar to Complainant under Mr. XXX and the
    subordinates thereof.   

    If AJ accepts your motion to compel Agency and issues an Order for Agency to comply with your discovery
    request by certain deadline; and if Agency still fails to comply with the Order; you may file a motion to request  
    sanction against the Agency for not complying with AJ's Order, including barring Agency from introducing any
    more evidence thenceforth and/or witnesses at the hearing.

    The judge will specify the discovery period, after which no further discovery may be allowed by either side,
    including depositions (See Acknowledgment and Order issued to you).  After discovery period, no other
    evidence can be admitted (except for impeachment of witnesses for perjury at the hearing, if appropriate),
    unless a new and fresh evidence was obtained.  Any newly obtained evidence which surfaced after the end of
    discovery period should be immediately submitted to the Agency and/or to the judge for use at hearing.  You
    need to file a motion for admission of the records as evidence.  Sometimes, you may include these new
    evidence in your Prehearing Report.  See below for Prehearing Report.

    Complainant and witnesses may be deposed by the Agency counsel during the discovery period.  
    Complainant is expected to cooperate with the Agency's deposition.  Complainant may depose the Agency's
    decision makers as well at his or her expense during the discovery period.  How to prepare for a deposition.  

    Hearsay evidence is allowed in the EEOC hearing proceeding, including in the Motions, Prehearing Report,
    and, of course, at the hearing.  However, it never overrides a direct evidence by way of a record or hand-hand
    witness testimony.

    All motions and submissions to the judge must be also served to the Agency representative; and a certificate
    of service verifying that you have done so must accompany all your submissions.  

    Stipulations are facts agreed upon by both sides.  Since they are admitted by both sides, they need not be
    established at the hearing or in the motion (if filed after stipulations are established).  The more stipulations,
    the shorter the hearing will be.  Thus judges like as many stipulations as possible.  However, do not be
    pressured by Agency counsel into admitting facts you are not comfortable or familiar with.  If you don't like how
    it is described, don't agree or stipulate to it.  You are not required to stipulate to anything.

    Settlement discussions are usually ordered (by the judge) to be initiated by the Agency to resolve the matter at
    the outset of the hearing process.  You may be requested to provide a written itemization of your settlement
    demands and the justification thereof.  There is no requirement to settle.  However, resolving the issue via
    amicable settlement is better than winning the case.  

    Decision Without A Hearing

    The judge may decide to render a summary judgment without holding a hearing.  Sometimes, the judge may
    notify both parties his or her intention to do so (by issuing a 'Notice of Intent to Enter Summary Judgment' or
    "Notice of Possible Decision Without a Hearing").  However, usually and most likely, the Agency files a motion
    for a summary judgment or a Motion for a Decision Without a Hearing.  You or your representative should file a
    response to such a motion in opposition.  See a sample.  A summary judgment without a hearing may be
    rendered if there are enough material and relevant facts undisputed or indisputable in the case.  Generally, to
    defeat Agency's motion for summary judgment, all you need to do is to show (with supporting evidence) that
    the material facts presented by Agency as undisputed or indisputable are in fact disputed or disputable.  

    If you feel you have enough evidence on record to support your claims of discrimination and to show (generally
    and almost always) Agency's adverse disparate treatment of you in comparison to the other similarly situated
    individuals, you may also file a motion for a summary judgment in your favor.  But don't do it unless you have
    "drop dead" evidence against the Agency such as the decision maker admitting that he fired you because you
    had disability.

    See an OFO Decision (2012-01-12) reversing AJ's summary judgment and remanding the case back to the
    Agency for a hearing.  This also has the criteria for permitting AJ to render a summary judgment and how to
    defeat a motion for summary judgment.  See other EEOC AJ decisions.

    If the judge decides to render a summary judgement, the prehearing and the hearing (if scheduled) will be
    canceled; and the judge's decision will be issued shortly thereafter.  

    Note:  Due to caseload or for whatever reasons, there is a great tendence on the part of the AJ's to render a
    decision without a hearing (almost always in favor of the Agency).  Such attempt must be opposed and, later,
    appealed to the Office of Federal Operations (see OFO appeals).  

    It must be noted that EEOC "hearing process is intended to be an extension of the investigative process,
    designed to "ensur[e] that the parties have a fair and reasonable opportunity to explain and supplement the
    record and to examine and cross-examine witnesses." See EEOC Management Directive (MD) 110, as
    revised, November 9, 1999, Chapter 6, page 6-1; see also 64 Fed. Reg 37,644, 37,657 (1999) (to be codified
    and hereinafter referred to as 29 C.F.R. §§ 1614.109(c) and (d)). "Truncation of this process, while material
    facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives
    complainant of a full and fair investigation of her claims." Mi S. Bang v. United States Postal Service, EEOC
    Appeal No. 01961575 (March 26, 1998). See also Peavley v. United States Postal Service, EEOC Request No.
    05950628 (October 31, 1996); Chronister v. United States Postal Service, EEOC 3/18/2012 Request No.
    05940578 (April 23, 1995)."  -- From the April 11, 2000 OFO Decision on Roberts vs USPS, Appeal No
    01986449.

    See an AJ's testimony at EEOC's Strategic Enforcement Plan Meeting in 2012, arguing inefficiency of EEOC
    and pleading for a correct reform.


    Final Agency Decision (FAD)

    Once the judge's decision is issued, it will be incorporated into the Final Agency Decision (FAD).  The FAD will
    be issued to you within the 40 days of receipt of the judge's decision.  You can request and argue to the
    Agency's EEO Headquarters not to implement the judge's decision in the FAD before the FAD is issued to
    you.   Also, you can appeal the FAD to EEOC's Office of Federal Operations (OFO) within 30 days of receipt of
    the FAD.

    Scheduling Order

    Due to case backlog or otherwise, the EEOC administrative judges may not be able to schedule a hearing
    right away.  Some cases linger on the judge's docket for months, if not for two or three years.  You may file a
    civil action in an appropriate U.S. District Court 180 days after filing a formal complaint, if no action has been
    taken by the judge or if no Final Agency Decision (FAD) has been issued.  In other words, after 180 days from
    filing a formal complaint, you can always file a civil action at the federal district court.

    If the judge decides to hold a hearing, he or she will issue a Scheduling Order and notify scheduling of a pre-
    hearing and a hearing.  The Agency is required to provide the feasible location for the hearing and to arrange a
    phone conference for the prehearing.  You are responsible for the cost of your witnesses' appearance at the
    hearing, if they are not currently employed by the agency or by federal government.  

    Due to time constraints, judges usually don't allow more than 3 or 4 witnesses from each side.

    The judge may require both parties to submit a prehearing report, containing a summary of facts and issues,
    stipulations (if any), arguments, a list/inventory of evidence and witnesses, and other relevant items pertaining
    to the hearing.  A list of witnesses should be part of the prehearing report and should include the name, title,
    address, phone, and a brief and specific description of what he or she can attest to.  See a sample of
    prehearing report.

    Your prehearing report or any motions you file may be objected to by the Agency on various grounds.  You may
    do the same on the Agency's prehearing report or on any of its motions.

    At the prehearing conference (which is usually conducted by phone) the issues and bases, admission of new
    evidence, and number of witnesses are discussed, disputed, agreed upon, or ruled by the judge.  (Depending
    on the length of expected testimony, only about 5 witnesses you proposed in the prehearing report may be
    approved at maximum.  Ask to have a two-day hearing.)  Various outstanding motions, if any, may be dealt with
    at the prehearing as well.  Any stipulations may also be discussed and agreed to.  You may file a verbal motion
    to the judge during the prehearing conference.  In fact, as long as Agency counsel is present before the judge,
    you may file a motion verbally (even during the hearing.)You can count on Agency to oppose every motion you
    file or make.

    EEOC Hearing:

    The Judge begins the hearing with brief summary of issues and bases.  Opening and closing statements can
    be offered from both sides.  You cannot submit any additional or new evidence not discussed or agreed upon
    by both sides prior to the hearing.  However, you can introduce new evidence (via a motion) if the witness
    discusses it during the hearing and if you overcome the opposing counsel's objection to your motion for
    admission.

    Testimonies and evidence are submitted or referred to from the Investigative File (IF) or the Report of the
    Investigation (ROI).  Witnesses are questioned, cross examined, re-crossed, and re-addressed by both
    parties.  

    Generally, the party who has the burden of proof presents its case first.  Because the complainant usually has
    the burden of proof to prove discrimination, the complainant usually should make his/her opening statement
    first, call witnesses first, introduce exhibits, etc..  Both parties have the right to question the other party's
    witnesses.


    Hearsay evidence is allowed in EEOC hearing process.

    A hearing brief (if a prehearing report was not submitted already for one reason or another and if permitted by
    the judge) can be submitted before the hearing but not after.  The hearing is closed to the public.  Hearings
    usually do not last more than 2 days.  Judges like to do it in a day.

    Unlike MSPB hearing, EEOC hearing is not open to the public.  It can be exploratory.

    Note that most judges used to be Agency attorneys.  

    Administrative Judge's Decision and Order is rendered within 30 to 60 days of completion of the hearing.  It is
    usually incorporated into the Final Agency Decision (FAD).  The judge's decision will be sent to you before FAD
    is issued to you.  

    If you submitted to the judge (before the hearing) a prehearing brief (sample) summarizing facts and
    arguments along with supporting evidence (or reference to supporting evidence in ROI), and if judge's
    decision is not in your favor, you may want to send the prehearing brief or new brief to Agency EEO
    headquarters to be considered before Agency issues Final Agency Decision (FAD).  Or you may want to rebut
    the judge's decision by presenting a brief containing summary of facts, arguments, evidence (or reference to
    evidence in ROI) to Agency EEO headquarters to be considered before Agency issues FAD.  See a sample of a
    brief.  If you do, you want to request that the judge's decision not be implemented in the FAD.  

    Bench Decision

    AJ may announce, prior to completion of the hearing or even at the beginning of the hearing, that she may
    issue a bench decision.  Bench decision is a decision rendered at the bench, recorded by the court reported,
    and issued in a written form later.  (Normally, hearing decisions are mailed to you after the hearing.)  Bench
    decision can be rendered at the completion of the hearing or on a separate date set aside to render it.  In the
    latter case, only the court reporter may be present with AJ, while the complainant, complainant's
    representative, and the agency representative may be available on the phone.  AJ will read her entire decision
    to be recorded by the court reporter.  

    AJ's may prefer bench decision because it simplifies and expedites the decision.  That is, not all relevant case
    precedences and other references need to be made in the bench decision; and the AJ need not wait for the
    hearing transcript to be made available in order to render a bench decision.  In short, bench decision is
    rendered without citing the hearing transcript.  

    The following conditions must satisfy in order to render a bench decision:

  1. The available records (i.e., things contained in the Investigative File and produced during testimonies of
    the witnesses during the hearing) must be complete (that is, sufficient enough to render a decision).
  2. There is no remaining material facts in dispute or that are disputable (in AJ's judgment).
  3. AJ's notes taken during the hearing are sufficient (in AJ's judgment) to render a decision (in addition to
    the available records).

    Hearing transcripts are due within 10 days of hearing.  Bench decision transcripts are due within three
    business days of the decision.  From the Acknowledgment and Scheduling Order issued by Chicago District
    Office, EEOC.


    Appeals

    You cannot appeal the Judge's Decision but can appeal the Final Agency Decision (FAD) incorporating the
    judge's decision.  You can appeal to EEOC's Office of Federal Operations (OFO) within 30 days of receipt of the
    FAD.  

    Within the 40 days of the administrative judge's decision, the Agency is required to issue you the Final Agency
    Decision (FAD) along with the notice of your appeal right either to EEOC Office of Federal Operations (OFO) or
    to a federal district court.   You may need an attorney to file a civil suit at the federal court or may represent
    yourself (pro se).  See a sample of a federal district court complaint.

    Final Agency Decision (FAD)

    Once the judge's decision is issued, it will be incorporated into the Final Agency Decision (FAD).  The FAD will
    be issued to you within the 40 days of receipt of the judge's decision.  You can request and argue to the
    Agency's EEO Headquarters not to implement the judge's decision in the FAD before the FAD is issued to
    you.   Also, you can appeal the FAD to EEOC's Office of Federal Operations (OFO) within 30 days of receipt of
    the FAD.



EEOC Hearing