Federal employment discrimination specialist serving nationwide from Philadelphia
After having argued the EEO cases in more than 20 hearings as a non-attorney representing the hearing or MSPB hearing), so that you know what you can expect at the hearing. Hopefully, this page can also prepare you better for a hearing.
‘Hearing’ is a misnomer. It should be call a ‘Show And Tell Presentation.’
If you expect that you will win the case by telling your side of the story, honestly and sincerely, you will go nowhere. Because the Agency could tell their side of the story just as honestly and sincerely as you can—often better. Since a lie detector is not permitted (even at the federal court), telling sincerely won’t prove anything. So to expect that the Administrative Judge (AJ) will agree with you, begin to understand and sympathize with you about the torments you went through during the course of discriminatory experiences you alleged and of the EEO process itself (yes, it is not a picnic) by ‘telling it as it was,’ you are in for a big surprise. You won’t convince the AJ.
Hearing is not about AJ listening and you ‘telling it as it is.’ Hearing is not about ‘hearing.’ Rather, it is about ‘showing.’ It is about presenting so that the AJ can ‘see,’ not so much ‘hear.’ Evidence must be visible. It should be presented in a document as much as possible.
You must show your best evidence to the judge. How do you do that? You don't throw a pile of papers to the judge and say: "Here, it's all there." The judge won't read a pile of papers. You must show the page, the paragraph, and the sentence, as you might do to a third grader. It is a 'show and tell.'
So, how do you show your best evidence to the judge?
By way of witness examination. You pick the best documents, choose the best witness for each doc - usually the author or the specialist who handles the doc on the job daily - and question him or her at the witness stand on the document. Payroll docs are good examples. You get a payroll specialist and ask questions on the payroll docs. Emails nowadays reveal a great deal of damaging information. You call the author or recipient of the email and question his or her about the email. You do this not to discover any new information. (It is hope that by the time of the hearing you already know what the witness will say.) But to have AJ notice the email and to note the ROI page number. (It is also hoped that the email is in the ROI and that you know on what page it is in the ROI or the Report of Investigation, which is also referred to as Investigation File.)
By questioning the witness on the document, you are 'showing and telling' it to the AJ. The more documents you discuss at the hearing - the docs that favor you -- the more successful the 'show and tell' is and more likely you will win. If the best evidence was not shown in the hearing, you cannot win.
(You cannot just show the docs to the judge and say: "Look, it says this or that...." You must use the witness to show the docs. That's why docs must be lined up with witnesses before the hearing. If you are a Complainant and presenting your case without a representative, then, perhaps, you can present the docs to AJ and explain them as proofs of your claim. But you can do that only on the witness stand, as a witness.)
Hearing is mostly an ocular process. AJ’s want to see more than to hear. If you cannot show, you cannot prove your case in most circumstances. You testimony will have no weight unless it is corroborated by docs.
My proposal for calling the hearing a ‘Show and Tell Presentation’ is an exaggeration, of course, but with a point. Kindergarteners usually do ‘Show and Tell’ presentation. But it provides a useful model for preparing the hearing.
Bring the presentation down to the third grade level (to the kindergarten level is even better—again, I am exaggerating with a point). I don’t mean to insult AJ’s intelligence and competence. They are mostly intelligent and competent. But they are swamped with cases with no clerical assistance. See one of the most conscientious and respected AJ Mulligan's testimony at EEOC's 2012 Strategic Enforcement plan Meeting. Given this, you must make it as easy as possible for them to see discrimination in your case. After all, you have the burden of proof, not the Agency, when it comes to claiming discrimination. AJ's need all the clerical help you can provide to remediate discrimination, if occurred.
Another advantage to a simple, clear, and straightforward presentation is that the opponent cannot deny, misrepresent, or distort what you presented simply and clearly. That means, the Agency cannot successfully defend the action you are alleging to be discriminatory or retaliatory.
Usually, the Agency wins the case by distortion and by creating confusion in AJ’s mind. That’s a legitimate and common legal tactic—as I’ve seen in almost all cases. In many cases, Agency wins based on testimonies that are based on lies. I’ve seen many Complainants who become dazed by the depth and width of their managers’ corroborated lies. Lies corroborated nonetheless, sadly, counts more than the truth told uncorroborated.
What counts in the hearing is what is proven by evidence. Nothing else counts.
As stated above, what you say usually does not count because Agency can say it differently or in opposition. You need corroboration, as Agency does and will provide for their defense. Since you have the burden of proof, you need more proof than the Agency has. That means, you need more corroboration than they do.
You obtain corroborating by presenting evidence that supports your statement. Evidence comes in two forms: documents and testimonies. I will discuss more about documents and witnesses below.
So, when you prepare for a hearing, get the documents and witnesses lined up. Match the docs with witnesses, so that you know what to ask to whom regarding what docs. Usually, the author or the recipient of a doc can be a good person to ask question on the doc. Also by showing the doc to the witness, before asking the key question, you can help the witness to refresh his or her memory, on one hand, and preempt him or her from lying, on the other.
For example, by showing an email the witness issued to the selection panelists prior to the job interview they conducted (recommending the person who ended up being selected), and by asking about the doc, you have already created the setting from which he cannot escape. Otherwise, he may deny ever influencing the panelists, stating, for example: “I was never involved in the selection process.” "I was not the selecting official and was not in the interview panel." The statement is true, as he was not a member of the panelists or the selecting official. But he was involved, as he issued the email to the panelists prior to conducting the interview, recommending a candidate over all others (including the Complainant) despite the inferior qualification.
Again, the hearing must be document driven. If you failed to show crucial ROI pages during the hearing, you have lost the hearing. You cannot say to the AJ: Look at ROI page 23…. Rather, what you can do is: have a witness look at it and say something about it—either to clarify or to elaborate or to ascertain why the document was issues, etc. This way, AJ will read the doc during the examination of the witness and take a note, if the page is authentic and important to your case.
Example: A supervisor denied a reasonable accommodation, saying to the Complainant who returned to work after a long sick leave: "You must be 100% recovered [from a surgery or some other medical conditions]." "Go home." Obviously, what he said is wrong and in violation of ADAAA. ADAAA does not required 100% functionality. For if you were 100% functional, you would not need an accommodation. This supervisor said it during the Fact-Finding Conference too (that the Complainant must be 100% capable); and his statement was transcribed and made into the ROI. You want the AJ to know this and wanted her to see the pages. So, you might ask him on the witness stand: "Is that what you said to the Complainant when he returned to work?" The answer would be "Yes." "Do you still stand by your statement?" He would have no choice but to admit it. Bingo, you got him. And you will see AJ writing down something profusely (if he is paying attention). In this way, you are able to get AJ to look at the page that favors you. And this is how you show the AJ the pages you want her to see. Agency will do the same to have AJ see the pages that favors them.
Use the witness as a means to show the AJ the relevant pages that favor your case.
When the Complainant is on the witness stand, the entire allegations accepted and pending before the AJ should be discussed by way of the documents. (If too many allegations and alleged and accepted, just focus on the most damaging allegations first — most damaging to you in terms of what you suffered and most damaging to the Agency in terms of irrefutability in light of evidence. Don’t present allegations in chronological order, if you can avoid doing so, trying to cover everything. You won’t have time. After a half day of hearing, your head will spin.)
Another example of questioning based on a doc. If the issue is a 5-day suspension, present the suspension note from ROI and ask the supervisor: “Do you recall receiving this doc?” or “Can you identify the document?” Proceed by asking: “Does the Charge 1 involve not answering the customers’ call on such and such dates?” “Is the Charge true?” "How do you know?" "Were you there to witness?" "Were there any other customer representatives who failed to pick up every call?" Then, you want move on to other records showing the same supervisor noting others not taking phone calls (if such records were obtained and put in the ROI), and ask: "Did you discipline Karen?" Etc. (Hopefully, he will say, no, because ..... Then you follow up with further questioning.)
Put the Complainant on the witness stand (usually Complainant is the first to testify before management at EEOC hearing) and ask: “Have you seen other Customer Rep’s not answering calls?” When? Who? What are their race, sex, age, religion, etc. (depending on the bases of discrimination you invoked)? Did any have prior EEO activity (for retaliation case)? Did any have known disability (for disability case)? Was your supervisor aware of him or her not taking the customers’ calls? What did your supervisor do about it? Etc. Then, when the others (similarly situated) take the stand, and if the citations on them are available in the ROI, present to the witness the counseling notes or the reprimand citing him or her for not answering the calls, and ask him about it as follows: You were cited on date so and so for not answering the call, right? What did your supervisor do about it? Did your supervisor do anything other than issue you a reprimand (in the case where Complainant was disciplined more severely for doing the same)? (This is an ideal scenario. In most cases, you won’t find the counseling notes or reprimands that others received for failure to answer calls. Because those others were not cited at all despite their failures--this is so, as you allege, because of their race, sex, age, no disability, no prior EEO, etc.) Absent docs, Agency will deny that they failed to receive calls on such and such dates, as you alleged. Absent docs, you must then call witnesses who may have observed them not taking calls on such and such dates, etc.
A document showing something could be a valuable evidence. But a cover that went with it to your supervisor, for example, could be important as well, if his or her knowledge of the doc is important in the case. Therefore, sometimes a complete document (the cover and the document(s) itself) may be necessary to make the evidence "complete."
Also, do not mark, write notes on the margins of the document or underline it. AJ’s don’t like it. If there are unmarked documents, AJ’s will prefer the unmarked and clean copy. This is so because any markings can be construed as ‘tampering’ the evidence or may invite unnecessary objections from the opposing counsel.
When a certification is an issue, for example, show the certification. Testimonies such as ‘I couldn’t have been hired without the certification’ is not as good as presenting a copy of the actual certificate— when a promotion is at stake, in the case where the internal candidates competed for the position in question.
You must also show that the certification you had was seen by the selecting panelists as well (to use the same selection case as an example). So, in this example, showing a copy of the certificate is not enough. You must also show how it was provided to the selecting panelists by showing the fax coversheet used to send the certificate, etc. This will prove not only that you sent it but also that the panelists must have seen it. Providing the coversheet, in this example, is called an ‘authentication.’ The email attaching the document you sent (to your supervisor or to the selecting panel) can be another example of ‘authentication’ of the document, showing your qualification as well as the selecting panelists’ knowledge thereof.
Know the page numbers of the Report of the Investigation (ROI), which is sometimes referred to as Investigation File (IF), or Investigation Record (IR). This might be the most important thing you can do to prepare for a hearing.
Saying what’s in the ROI is not as effective as showing it to the AJ. AJ’s are document oriented. What’ s in ‘black and white’ carry more weight than what is said verbally in the ari. Many AJ’s do not read everything in the ROI. Even if AJ had read it all, he or she won’t remember all when it comes to writing the decision. Baulk of the ROI are unnecessary to prove your case, anyway. Sometimes, useless records are inserted (intentionally or not) to bury the relevant and material evidence contained in the ROI.
Usually, the crucial records in the ROI that would determine the outcome of the case are less than 100 pages total—out of some 800 pages, plus minus 200 or 300. If you failed to discuss those crucial docs in the ROI during the hearing (over Agency’s objections, which will surely be raised for one reason or another), you won’t win. AJ may not get to read them, due to caseload, etc., or may ignore those pages, as they were not presented during the hearing. (AJ’s will never admit this.)
As already stated, the way to discuss a document is by way of a witness. Correlate or match the docs with witnesses and when the witness takes the stand, you present the doc and ask questions on it.
Objections to presenting a doc to a witness may be posed on the following grounds: If the witness did not author, receive, or has not see it before, you cannot ask him about it. For example, when you show a grievance you filed, but if the second-level supervisor never received it or seen it, then you cannot ask him about it. Or if he did not author a doc, you cannot ask him about why the box 7 was checked or unchecked, etc.. Since a witness cannot be asked about any doc, you should line up and match the docs with the witnesses. That is the balk of the hearing preparation. (Usually, in the Pre-Hearing Report, you must list all material facts that you want to prove at the hearing. It is good to line up the facts with the supporting docs, ROI page numbers, or witnesses. That way, you can match docs with witnesses easier in the hearing preparation.)
If evidence is not contained in a record, the next best thing is to have a witness testify to it. If a witness cannot be called, then the next best thing is to have his or her testimony in writing in an affidavit format.
(An affidavit should have the title ‘Affidavit,’ ‘Complainant Affidavit,’ or ‘Witness Affidavit.’ It should have the case caption and number(s). It should have the name of the affiant and the contact information at the outset. If employed in the Agency, the title and the location of work, if relevant. It should be written in an outline format, not in a novel or narrative format. It should simply and concisely state the fact in each paragraph or bullet point. Separate one fact from another by paragraph separator or space. It should end with a declaration stating: ‘I, the undersigned, declare under the penalty of perjury that the above statement is true to the best of my knowledge, information, and belief. It should have the signature, date, and the printed name of the signature.)
Of course, absent documents, witnesses are the next best thing in terms of evidence. But there, too, the testimony must be as concrete, empirical, detailed, and precise as possible. ’He can tell all about the harassment I went through in the office’ won’t do as a good testimony. He must be able to tell: when, what, where, who, why, and how.
When Did It Happen?
If a witness cannot remember exact dates—as anyone could not about events that happened two or five years ago—he must still be able to remember, the week, month, quarter, season, or the year (such as early, mid or late 2010). Or he must remember if the event in question happened prior to or subsequent to some other event. Anything is better than ‘I don’t know.’ If he says ‘I don’t know,’ then the opposing counsel can take advantage of the vague and useless testimony and present alternate testimony that claims to know when it happened or what happened. The question of ‘when’ is curtail in retaliation cases especially where you have to prove the causal connection or nexus. The EEO activity must precede the act you are claiming as retaliatory. Otherwise, there is no retaliation.
Don’t say ‘I was attacked by my supervisor’ — when in fact you were accused with sexual harassment charge or some other unfair disciplinary action (base on your sex, Male, or age, 56, etc.). 'Attack,' in this case, usually means a physical attack such as punching, hitting, etc. Although the accusation may come to you as a ruthless “attack” on you and on your character, what you want to say at the witness stand is: “She accused me of sexual harassment on July 2, 2012….” Be as precise and exact as possible. This is hard to do but is required. Litigation is a hard work. Do not be careless or lazy and assume that AJ will figure out what you mean or find what is in the ROI.
Don’t say “discrimination” when what you mean to say is “rated lower” or “suspended.” What happened is the Act of Harm: that you were rated unfairly. It is not a discrimination until AJ says so. So, strictly speaking, a witness cannot and should not say "discrimination" happened or "I was discriminated against" during the course of testimony at a hearing; because AJ did not make a decision yet. AJ will conclude whether there was discriminatory or not — based on the testimony of that witness and on other evidence. So, when you are asked: What happened that day? Don’t say: I was discriminated against. Say rather: I was suspended. Don’t say: I was denied accommodation but say, ‘I came to work and showed my doctor’s note, listing restrictions, but I was told to go home because I was not 100% recovered from my injury.’ The more detailed the testimony, the better. But also the detail must be relevant. Don’t bore the AJ with irrelevant and lengthy details.
‘What happened?’ usually refers to an act done to you and not done to others (such as disciplinary action) or an act not done to you but done to others (such as bonus or promotion). Discrimination in the context of the hearing is not an act. It is a legal concept or conclusion of law. As such it usually refers to the discriminatory or retaliatory motive expressed in and causing the act you are alleging as discriminatory or retaliatory. ‘What’ therefore is the act claimed as motivated by discriminatory attitude (animus). By comparing the act done to you but not to others or not done to you but done to others in the similar circumstances, you either prove or disprove the discriminatory motive (animus), which is inferred by the facts showing the action (done to you and not done to others, or not done to you but done to others). At the hearing, you want to prove the act, not the ‘discrimination,’ strictly speaking; because ‘discrimination’ is pronounced later after the hearing in AJ’s decision you will receive by mail or hear at the conclusion of the hearing (in the case of a bench decision).
In the sexual harassment cases, ‘what’ becomes most important. Since there are usually no witnesses in most circumstances, the ‘what’ questions are crucial. When asked, ‘what happened?’ don’t answer: ‘He sexually harassed me.’ But say: “He touched my hand.” Or, ‘he tried to kiss me.’ Or, ‘he asked me out.’ The devil is in the detail when it comes to sexual harassment issues. The what question must be answered in detail and with precision. Furthermore, asking you out once won’t be an harassment. But if he does that daily despite your clear and consistent ‘no,’ then it may be construed as a ‘persistent and regular’ pattern of sexual harassment.
Again, to the question ‘what?’ the answer should be: the act, not the legal concept ‘harassment’ or 'discrimination.' So, asked: what happened? Don’t say: harassment but say: he touched me. (Where he touched you, then, becomes important for obvious reasons.)
Where Did It Happen?
When asked, ‘where did it happen?’ don’t say generally, ‘at work.’ But say, ‘in his office’ or ‘in the hall way.’ Depending on your answer to the ‘where’ question, a witness who may have seen what happened could be identified. Some issues may be decided based on where the event in question took place or is claimed to have taken place, such as when the supervisor or a witness claims to have seen you do or not do this or that, when he or she was not even around to witness because he is usually not there (where the event in question took place). So, provide the precise information as to ‘where,’ if and when it is applicable and relevant.
In the sexual harassment case, where the harasser touches you becomes very important, obviously. Or, where something is said could be important tot: in a public place or in the privacy of a closed door office. Saying ‘I like your dress’ in a group meeting is different than saying the same thing in a private meeting between you and your boss.
Who Did It?
Say the name and title, as often as you can, when you testify. Don’t just say, “John.” Say instead “John Doe, the Regional Director.” Once the full name and title is said, and everyone is clear on who “John” is (including the AJ, most importantly), then, of course, you can refer to “John” in subsequent sentences or answers.
Why Did It Happen?
Often, in discrimination cases, the answer to the ‘why’ question is usually the conclusion of the law: discrimination. So, statements like ‘because he is Asian, it happened’ is usually reserved for AJ to decide and to write in her decision at the conclusion of the hearing. So, usually a witness is not qualify to answer the question 'why,' unless he is called to testify as a judge or as an expert witness on discrimination cases.
However, why questions are crucial if answered well. Often the EEO investigators or sometimes Agency attorneys during a hearing will ask: what does ‘race’ have anything to do with your suspension? This is a disguised ‘why’ question. He is asking: Why were you suspended? The answer, here, of course should be: ‘because I am an Asian or female.’ Or, 'Non Asians were not similarly disciplined or Males were not similarly disciplined.' The answer should not be: ‘because I am accused of doing or not doing so and so when I didn't.’ Or, ‘because I was discriminated against.’ Or ‘because I didn’t do it.’
To supplement the answer to the 'why' question, you may say: ‘because I am female and because the male employees were not suspended as I was when they too did this or that…’ Or, ‘because the male employees were given bonuses when I was not.’