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.
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.)
employees are appealable only to the Merit Systems Protection Board (MSPB), not to EEOC. See EEOC's Equal Employment Opportunity Management Directive (EEO-MD-110) ("MD-110"), Chapter 4, Section II.B., pages 4-2 through 4-5 for explanations on 29 C.F.R. § 1614.302 Mixed case complaints.
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.)
formal EEO process. 30 days after contacting the EEO counselor, you should write to EEOC hearing unit in the appropriate EEOC Field Office and request a class complaint hearing. See more on class complaint. 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.
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."
Download 29 C.F.R. (Code of Federal Regulations) § 1614.109 governing the EEOC hearings.
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 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. (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 days of receipt of Acknowledgment and Order. See the Order issued to you.). 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.
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.
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, 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.
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. 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. 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 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. 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. 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.
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.
Investigation (ROI). Witnesses are questioned, cross examined, re-crossed, and re-addressed by both parties.
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.
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.
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. 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 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). 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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MSPB & EEOC hearings, OFO appeals, informal and formal discrimination claims Non attorney uniquely serving nationwide from Philadelphia |
