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    EEOC Hearing for Federal Employment Discrimination Cases

    When you receive the Report of Investigation at the conclusion of investigation of your "formal" complaint of
    discrimination, you will be notified of your option to request a hearing before an administrative judge at EEOC.  
    (Click here for EEOC hearing request form.)

    Note regarding the issues involving removal or termination from federal employment:  Generally,
    "constructive discharge" issues involving non-probationary federal employees are appealable only to
    the MSPB, and not to EEOC.  See EEOC's Equal Employment Opportunity Management Directive for 29
    C.F.R. Part 1614, (EEO-MD-110) ("MD-110"), Chapter 4, Section II.B., pages 4-2 through 4-5.

    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 on any other actions which are appealable to MSPB,
    since you may appeal them to MSPB.  See MSPB appeal.



    EEOC Pre-hearing process: Once you request a hearing to be heard by an administrative judge at EEOC,
    EEOC will notify the Agency of its obligation to produce Agency file, including the Report of Investigation.  
    Failure to provide it may result in a default judgment against the Agency.  You should file a motion to the judge
    to deter a default judgment against the Agency.  


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

    Once a case is docketed at EEOC, an administrative judge (AJ) will be assigned to the case.  The AJ will
    issued an Acknowledgement Order (sample) specifying a series of deadlines.  They involve deadlines for
    discovery, filing motions, responding to motions.  Also the deadline for submitting a pre-hearing report may be
    set.  See below for pre-hearing report.  

    Once the judge has been assigned to your case, you can make a motion to add issues not accepted, omitted,
    or not investigated by the Agency's EEO investigator.  You can also amend your charge at this time (if
    appropriate and timely) by filing a motion to the judge.  All submissions to the Judge must be served to the
    Agency counsel and must be accompany by a certificate of service.  (Sample motions)

    Once the Agency Investigation File (including Report of Investigation) is submitted to the judge by the Agency,
    everything in it becomes a part of record automatically.  You need not submit any documents already contained
    in the Agency file or in the Report of Investigation for use in your motions or at the hearing.

    Discovery: It is very important that you or your representative initiate the discovery.  Discoveries may include
    request for production of documents and request for Agency's response to your written interrogatories (you can
    ask questions to your supervisor who acted against you in discrimination).  Discovery requests are served to
    the Agency representative, never to the judge.  If the Agency fail to respond properly and timely to your discovery
    requests, you can file a motion to the judge to compel the Agency to respond to your discovery requests.

    The judge will specify the discovery period, after which no further discovery may be allowed by either side.  After
    discovery period, no other evidence can be admitted (except for impeachment of witnesses for perjury at the
    hearing, if appropriate).  Any newly obtained evidence should be immediately submitted to the Agency and/or to
    the judge, if appropriate, prior to the hearing.  

    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, too, at his or her cost during the discovery period.  

    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.  

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

    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.

    The judge may decide to render a summary judgment without holding a hearing.  If so, he or she will notify
    both parties his or her intention to do so ('Notice of Intent to Enter Summary Judgment').  The Agency usually
    files a motion in support of the judge's intention.  You or your representative should file a motion responding
    and in opposition to the agency's motion for a summary judgment.  Or, if you feel you have enough evidence in
    supporting your case in the file or on record, you can file a motion to the judge for summary judgment in your
    favor.

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

    Once the judge's decision is issued, it will be incorporated in the Final Agency Decision, which will be issued
    to you.

    If the judge decides to hold a hearing, a pre-hearing and a hearing will be scheduled and held.  The Agency is
    required to provide the feasible location for the hearing.  You are responsible for the cost of your witnesses'
    appearance at the hearing if they are not employed by the agency.  

    Due to time constraints, judges usually don't allow more than 5 witnesses from each side.

    The judge may require both parties to submit a pre-hearing report, containing a summary of facts and issues,
    stipulations (if any), list of evidence and witnesses (if not already contained in the ROI), and other relevant
    items pertaining to the hearing.  A list of witnesses should be part of the pre-hearing report and should
    include the name, title, address, phone, and a brief and specific description of what he or she can attest to.  

    Your pre-hearing 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 pre-hearing report or on its motions.

    At the pre-hearing conference, which is usually conducted by phone, issues and bases, new evidence
    admission and witnesses for the hearing are discussed and agreed to.  Various outstanding motions, if any,
    may be dealt with at the pre-hearing.  Outstanding motions dealing with new or additional evidence, if
    submitted, are discussed and ruled upon by the judge.  Any stipulations may also be agreed to.  

    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 to by
    both sides prior to the hearing.  However, you can introduce evidence (not admitted prior to the hearing) if the
    witness discusses it during the hearing and if you overcome the opposing counsel's objection to the
    admission thereof.

    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.  

    Hear-say evidence is allowed in EEOC hearing process.

    A hearing brief (if a pre-hearing 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.


    Administrative Judge's Decision and Order: This is rendered within 10 days of the hearing; and it is  
    incorporated into the Final Agency Decision.  The judge's decision will be sent to you.  You cannot appeal the
    Judge's decision but only the Final Agency Decision which will incorporate the judge's Decision and Order
    (See appeal to OFO).

    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 rights either to EEOC Office of Federal Operations (OFO) or
    to federal district court.  







    Disclaimer: All information contained in this page is subject to change and updates.  EEO 21 is not responsible for any errors
    or misrepresentation.
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