© Copy right by EEO 21, LLC
148 East Street Road, Suite 321, Feasterville, PA, U.S.A.



    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.

  1. Request for a hearing.
  2. Notice from EEOC to the Agency (copy to the Complainant) to produce the Complainant File, including
    the Report of the Investigation within 15 days.
  3. Receipt of Acknowledgment and Order issued by the assigned administrative judge with deadlines and
    due dates.
  4. Settlement proposal and, if applicable, negotiation.
  5. Discovery requests by both Agency and Complainant to be initiated within 20 or 30 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.
  8. Motion to dismiss or for summary judgment filed by Agency.  This must be responded to to avoid ruling
    without a hearing.*
  9. Scheduling Order for prehearing and hearing.  (Depending on the judge, the scheduling order may be
    issued earlier.)
  10. Prehearing statement to 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.
  12. Hearing*
  13. Judge's Decision
  14. Issuance of Final Agency Decision, which can be appeal to Office of Federal Operations.

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

    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.)

    Note:  The "constructive discharge" (or forced resignation) cases for non-probationary federal
    employees are appealable only to the Merit Systems Protection Board (MSPB), 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.

    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 Pre-Hearing 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.

    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
    deadlines for discovery (see below), filing motions, responding to motions, etc.  Depending on AJ, the
    deadline for submitting a pre-hearing report may also 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,
    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.  (Watch for the deadline to do so in
    Acknowledgment and Order.)  See a blank motion to amend the claims.

    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).

    Discovery: It is very important that you or your representative initiate the discovery on time (usually within 20 or
    30 days of receipt of Acknowledgment and Order).  Discoveries may include the Request for Production of
    Documents and request for Agency's decision makers' 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 you are claiming.  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) 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 properly 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)  Deficient
    response may be a cause for filing a motion (to the judge) to compel the Agency to produce a proper and
    thorough response.  (Watch for the deadline for a motion to compel - usually within 10 days of receipt of the
    deficient response or of Agency's failure to meet the deadline.)  Before filing a motion to compel the Agency,
    you must attempt to work out with the Agency regarding your discovery request (generally via a phone call or a
    letter requesting the status of Agency's response.)  More on how to request documents and information.

    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 a
    sanction against Agency, 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.  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 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 Pre-Hearing Report.  See below for Pre-Hearing 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.  See how to prepare for a
    deposition.  

    Hearsay evidence is allowed in the EEOC hearing proceeding.

    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.  

    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').  
    However, usually and most likely, the Agency files a motion for a summary judgment.  You or your
    representative should file a response to such a motion.  A summary judgment without a hearing may be
    rendered if there are enough material and relevant facts either 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 indeed 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 toward you in comparison to other similarly situated
    individuals, you may also file a motion for a 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 into the Final Agency Decision (FAD), which will be
    issued to you and can be appeal to EEOC's Office of Federal Operations (OFO).

    If the judge decides to hold a hearing, he or she will issue a Scheduling Order and a pre-hearing and a
    hearing will be scheduled and held.  The Agency is required to provide the feasible location for the hearing and
    to arrange a phone conference for the pre-hearing.  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 pre-hearing report, containing a summary of facts and issues,
    stipulations (if any), argument, a list/inventory of evidence and witnesses, 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.  See a sample of
    prehearing report.

    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 any of its motions.

    At the pre-hearing 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 pre-hearing
    report may be approved at maximum.  Ask to have a two-day hearing.)  Various outstanding motions, if any,
    may be dealt with at the pre-hearing as well.  Any stipulations may also be discussed and agreed to.  You may
    file a verbal motion to the judge during the pre-hearing 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.  

    Hearsay 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 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 pre-hearing brief (sample) summarizing facts and
    arguments along with supporting evidence (or reference to supporting evidence in ROI), you may want to send
    this 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 such a brief.

    You cannot appeal the Judge's Decision but can appeal the Final Agency Decision incorporating the judge's
    decision.  You can appeal to EEOC's Office of Federal Operations (OFO) within 30 days of receipt of 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 will need an attorney to file at the federal court or represent yourself (pro se).



    Disclaimer: All information contained in this page is subject to change and updates.  EEO 21 is not responsible for any errors
    or misrepresentation.
EEOC Hearing
    A federal EEO specialist
    MSPB & EEOC hearings, OFO appeals, informal and formal discrimination claims
    Non attorney uniquely serving nationwide from Philadelphia