In response to feedback received from complainants and their representatives, about not having ready access to easily understandable and practical information about the federal sector hearing process, we have compiled a list of questions which complainants and their representatives frequently ask our administrative judges, and have provided answers. We hope the information contained in the enclosed Frequently Asked Questions (FAQs) and the accompanying sample forms and orders will help familiarize your representative and you with the various practices and procedures that govern processing of your case once we receive your request for a hearing. FAQs are available in both printed and digital formats, and from time-to-time, these FAQs will be updated. Being as knowledgeable as possible about the hearing process will help your representative and you prepare for hearings, thereby ensuring your case is decided fairly, efficiently and expeditiously.
These frequently asked questions (FAQs) primarily are intended for complainants and their representatives seeking information about the EEOC federal sector hearing process, and are not (and are not intended to be) legal advice or a substitute for legal counsel. EEOC does not provide parties legal advice or assistance. If you need legal assistance or advice, you should consult an attorney or other knowledgeable individual.
These FAQs were prepared by Administrative Judge Robert Powell in EEOC's San Antonio District Office.
NOTE: If any FAQ conflicts with an EEOC regulation, ruling or administrative judge's order, parties will comply with the regulation, ruling or order.
The U. S. Equal Employment Opportunity Commission (EEOC) is an agency in the Executive Branch of the United States Government. EEOC was established and became operational on July 2, 1965. EEOC's primary missions in relation to federal employees are promotion of equality of opportunity in the federal workplace and enforcement of federal laws prohibiting employment discrimination against federal employees, including the following:
An administrative judge (AJ) is an EEOC employee who independently decides discrimination complaints of federal employees. All EEOC AJs are highly skilled and knowledgeable attorneys, with respect to the federal sector hearing process and the relevant law. When the EEOC office responsible for your geographic area receives your request for a hearing, an AJ will be assigned to oversee all aspects of your case. The AJ will issue a variety of orders designed to ensure fair and expeditious processing of your case, will analyze the applicable law and the evidence and issue a decision.
An administrative hearing pursuant to 29 C.F.R. §1614.109 is similar to a trial before a judge at the courthouse. As the presiding official, the AJ acts as both the judge and jury. Proceedings, for the most part, are informal. Parties generally are permitted to make opening and closing statements, offer into evidence witness testimony and documents, examine and cross-examine witnesses and raise objections and obtain rulings on objections from the AJ.
You are not required to retain an attorney or have another person represent you. You may represent yourself (pro se). If you choose to represent yourself (proceed pro se,) you are expected to be familiar with the EEOC's rules of practice and procedure and be prepared at the hearing. At the hearing, you are required to proceed first with presentation of evidence that supports your allegations of discrimination. At all times you carry the ultimate burden of proving your case with relevant and material evidence. Given the importance of the hearing, it may be advantageous for you to retain an attorney or designate a knowledgeable co-worker, union official or other individual to represent you in the case. If you designate someone to represent you, you are expected to act through your representative. You are ineligible to receive reasonable attorneys' fees as part of any award in the case unless you are represented by an attorney.
Can I resolve my complaint without a hearing?
Yes. Settlement of your case without the necessity for a hearing or issuance of a decision by the AJ is highly encouraged. Settlement discussions are permissible at any stage of proceedings. During settlement discussions, you and the agency representative are expected to discuss and consider specific ideas, methods and means of resolving the dispute. It is important you understand that both parties may be required to compromise for there to be any real prospect for a settlement. Discussions that merely restate and reinforce each party's position are unlikely to resolve the complaint and, therefore, are discouraged. Alternative methods or means of dispute resolution ("ADR") afford you and the agency opportunities to craft creative settlement solutions. Ideally, you should undertake ADR after discovery is completed and well in advance of the scheduled hearing. In addition to contacting the agency representative during the first 30-days after receipt of the Acknowledgment and Order, if no settlement is reached, the AJ may direct you and the agency representative to again contact each other before the hearing to jointly assess prospects for settlement. Neither party, however, is obligated to settle. If the parties are unable to settle the dispute, the AJ will decide the case.
If you and the agency are able to reach a settlement, you are required to execute a written settlement agreement (or memorandum of agreement) and promptly deliver a copy to the AJ. The AJ also can allow the parties to go on the record and state the settlement terms. Any previously scheduled pre-hearing conference or hearing will not be cancelled until the settlement is finalized. Additionally, if a hearing is scheduled, the parties may not release witnesses or the court reporter unless the AJ expressly authorizes you to do so.
What if I need an interpreter?
If you or any witness you wish to have testify at the hearing require the services of a foreign language or sign language interpreter, you should promptly notify the AJ. If appropriate, the AJ will order the agency to provide one.
Generally, EEOC will assign an AJ to your case as soon as your hearing request is received. To avoid unnecessary delay, make sure you file your request with the EEOC office responsible for your geographic area. Consult your EEO manager or counselor. You will know EEOC has your case when you receive the Acknowledgment and Order from the clerk or AJ assigned to your case.
The Acknowledgment and Order is a standardized form used by EEOC that, among other things, acknowledges EEOC received your request for hearing, identifies the AJ to whom your case has been assigned, establishes deadlines by which you and the agency must complete certain tasks (e.g., initiate and complete discovery) and highlights various practices and procedures that will govern processing of your case.
The Supplemental Acknowledgement and Order (and similarly named orders) is comparable to "local rules" used by the courts. This order identifies the particular practices and procedures which, in addition to those specified in the Acknowledgment and Order, are used by the AJ assigned to your case. Keep in mind practices and procedures differ somewhat among EEOC offices and among AJ's within offices.
You and your representative should read these orders as soon as you receive them and promptly comply with each and every provision. Any non-compliance by you or your representative may result in the AJ's imposition of sanctions or issuance of orders or rulings detrimental to your case. These Acknowledgement and Orders are subject to change. Consequently, you should read the orders issued in your case. Do not rely on your or your representative's knowledge of the contents of orders issued in other cases.
Commission regulations allow an AJ to render a decision without a hearing. This procedure is commonly referred to as summary judgment. See 29 C.F.R. §1614.109(g). The regulations are patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate where the AJ determines, given the legal and evidentiary standards that apply to the case, no genuine issue of material fact exists. Summary judgment is not a disfavored procedural shortcut. Rather, it is an integral part of the EEO hearing process and is designed to secure for the parties, a just, speedy and inexpensive determination of the complaint. Summary judgment proceedings may be initiated by the AJ or by one or both parties.
Unlike a hearing, in summary judgment proceedings the AJ does not decide who is telling the truth (make credibility determinations) or weigh the evidence. Rather, the AJ's function is to determine whether, given the facts which are presented and the law that controls, the non-moving party (usually the complainant) can prevail. In summary judgment proceedings, the evidence of the non-moving party is believed and all justifiable inferences are drawn in the non-moving party's favor.
An issue of fact is "genuine" if the evidence allows the AJ to find in favor of the non-moving party. A fact is "material" if it has potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. Additionally, the AJ properly can consider summary judgment only after the record has been adequately developed.
To successfully defend against the agency's motion for a decision without a hearing (summary judgment), you or your representative must identify for the AJ each and every material fact you dispute. You will need to point out to the AJ where disputed facts exist in the documents in the agency's report of investigation, additional documents obtained during discovery or witness affidavits. Only witness affidavits that have been sworn to before a notary public or non-sworn declarations are acceptable summary judgment evidence. Remember, identifying disputed facts is more important than citing or arguing the law or facts that are not in dispute. Failure to respond to the agency's summary judgment motion will not result in the automatic grant of the agency's motion. But, if you do not respond your chances of defeating the agency's motion are greatly diminished.
A pre-hearing conference is a conference held before the evidentiary hearing (usually telephonically), between the AJ and the parties or their representatives. At the initial pre-hearing conference, be prepared to discuss the following matters: (1) identification and refinement of the issues to be decided, (2) possibility of obtaining stipulations (agreements between the parties regarding an aspect(s) of the claim), (3) disposition of pending motions, (4) assessment of your case's settlement potential, (5) approval/disapproval of prospective witnesses, (6) scheduling the case for an evidentiary hearing and (7) any other matter likely to facilitate final disposition of the case.
At any point in the pre-hearing phase, the AJ may conduct pre-hearing conferences or either or both parties may request pre-hearing conferences to discuss any matter concerning the case.
Usually, the agency representative is responsible for placing all pre-hearing conference calls. Your representative and you are responsible for ensuring the agency representative is provided your current telephone numbers. Unless the AJ directs otherwise, if you have a representative, so long as your representative attends, you do not have to be present for pre-hearing conferences.
In a summary judgment proceeding, the AJ decides the case solely on the basis of evidence contained in the written record (including evidence developed during discovery) and based on the applicable law. An evidentiary hearing, on the other hand, is a trial-like proceeding where parties are permitted to offer into evidence documents and live witness testimony. Generally, in an evidentiary hearing parties are permitted to make opening and closing statements, examine and cross-examine witnesses and raise objections and obtain rulings on objections from the AJ. A proceeding is an "evidentiary hearing" only if witnesses testify under oath or affirmation and a verbatim record of the proceeding is made.
Failure of either party to comply with the AJ's orders can have serious consequences. If you or your representative violate the AJ's orders, the AJ is likely to issue a Show Cause Order directing you to explain yourself and state good reasons why you or your representative should not be sanctioned. Possible sanctions include dismissing your request for a hearing and return of the complaint to the agency for issuance of a final decision, excluding favorable documents or witness testimony or drawing an adverse inference about certain evidence or witnesses. In certain situations, the AJ may dismiss your complaint outright. Remember, the AJ's orders are intended to facilitate orderly and expeditious processing of your case. Your and your representative's compliance with the AJ's orders will help ensure that you receive a fair, well-ordered and timely hearing. The AJ requests and expects your and your representative's full cooperation in helping to achieve this objective.
If you and your representative are employees of the agency where the complaint arose and was filed, and if you otherwise are on duty, you both are entitled to a reasonable amount of official time during both the informal counseling and later phases of the complaint process to present your complaint and respond to the agency's requests for information. What is "reasonable" depends on the particular circumstances of your complaint. If the agency denies your request for official time, the agency must document the denial. You may request that the AJ review the agency's action and issue whatever orders are appropriate. See Chapter 6, Section VIII(C) of the Equal Employment Commission's Management Directive 110 (EEO MD-110), as revised, Nov. 9, 1999.
If you are unable to attend the scheduled hearing, then as soon as practical, you should request the AJ to reschedule your case. If the request for a delay is for medical reasons, you must provide the AJ suitable medical documentation. Your hearing will be rescheduled only if you can show sufficient good reasons for the continuance. Keep in mind the AJ only has 180 days in which to decide your complaint and yours is not the only case assigned to the AJ. The AJ, therefore, only has a limited number of hearing dates. It may not be possible for the AJ to re-schedule your hearing without incurring unacceptable additional delay. Rescheduling your hearing is not guaranteed.
Yes. Do not assume because you requested a continuance your request will be granted. Unless you receive a written order or the AJ otherwise notifies you or your representative that the hearing is rescheduled, assume your motion has been denied, finalize your hearing preparations and appear at the hearing.
Yes. You may engage in what is referred to as "discovery" (obtaining information about the case from the opposing party prior to the hearing). Discovery may be "informal" or "formal." Informal discovery usually involves parties voluntarily exchanging documents and other information, interviewing (instead of deposing) potential witnesses, and other voluntary measures. Formal discovery is a highly structured process involving written questions (interrogatories), written requests for production of documents and oral depositions of parties or witnesses. Formal discovery is a complicated, time-consuming and oftentimes costly undertaking. For example, whichever party initiates action to depose a witness is responsible for the court reporter's costs. These costs oftentimes are hundreds of dollars. Not every case requires discovery. Procedures and time frames for conducting discovery are set out in the Acknowledgment and Order. In some EEOC offices, you must notify the AJ of your intent to begin discovery and of the substance of the discovery required. The AJ may determine the appropriate scope of discovery. See Chapter 7, Section IV of EEO MD-110.
Before a witness is permitted to testify at the hearing you must seek approval from the AJ. Your request must be in writing. Always provide the agency a copy. Your request must include names, positions or job titles, and locations of the witnesses, and you should list your own name as a witness, showing that you intend to testify. You also should number each witness on your list. Include a brief description of what you expect the witnesses to say. The AJ will only approve witnesses whose testimonies are relevant and material to the issues being decided and are not repetitive of other witness testimonies. Focus on having witnesses testify who personally know important facts about your case (as opposed to witnesses whose testimonies simply repeat what they have been told about your case, or want to talk about their own workplace grievances or discrimination complaints). The AJ may disapprove some or all of your witnesses if you submit your witness list after the established deadline and are unable to satisfactorily explain your tardiness.
If witnesses approved by the AJ are current employees of the United States Government, the agency arranges for the witnesses to appear at the hearing and is responsible for any related costs. The AJ cannot compel witnesses to attend the hearing who are not currently employed by the Federal Government (e.g., former federal employees who have resigned or retired). You are responsible for getting non-federal employee witnesses to voluntarily appear and testify for you. Any costs related to voluntary appearance of these witnesses are your responsibility. The agency must notify you or your representative as soon as practical if, for whatever reason, an approved witness the agency was ordered to make available subsequently becomes unavailable to testify at the scheduled hearing.
Be as prepared as possible. Make sure you know the facts supporting your discrimination allegations. Remember, the AJ only has authority to decide employment discrimination claims. Complaints that are strictly workplace grievances, union-management disputes, workers compensation appeals, etc., properly should be pursued in other forums. Also make sure you are familiar with the "elements of proof" needed to establish a prima facie case of discrimination. There are different elements of proof for the various types of discrimination. Consult the section of the EEOC web site (www.eeoc.gov) entitled, "Discrimination By Type: Facts and Guidance".
Before the scheduled hearing you should mark for identification with sequential numbering all documents you intend to offer into evidence (e.g., Complainant's Exhibit 1). Provide the AJ, the agency representative and yourself copies of your proposed exhibits. If you have more than 10 documents you should prepare an index of your exhibits.
An evidentiary hearing consists of two parts - a liability or "merits" component and a remedies or "damages" component. Unless the AJ separates (bifurcates) the hearing into two distinct parts, come to the hearing prepared to present evidence supporting your claim for compensatory damages immediately following your presentation of liability evidence. Bring with you to the hearing all medical records, receipts, cancelled checks and other documents you intend to use to prove your compensatory damages claim. Remember, if the AJ does not bifurcate the hearing, once you "rest" your case, the AJ may not permit you to later present additional evidence.
Generally, ex parte (one party) communication with the AJ is prohibited. If you wish to discuss a matter with the AJ concerning the merits of your case, first contact the agency representative to determine whether the agency wants to participate or respond. If you do not, the AJ will likely instruct you to contact the agency representative and arrange a telephone conference. You also must provide the agency representative a copy of every document you send the AJ. E-mail communication with the AJ may be restricted or prohibited. Consult the AJ before e-mailing anything.
You may communicate with the AJ without first notifying the agency that you wish to discuss purely "procedural" matters. For example, you may contact the AJ to ask for clarification of an order, rule or regulation, confirm a pending deadline or setting, or discuss the logistics of the hearing. If you are uncertain whether it is proper to contact the AJ ex parte, you should first contact the agency representative or the AJ's administrative assistant.
Generally, the AJ holds the evidentiary hearing at the Agency's facility where the complaint arose. The AJ, however, may conduct the hearing at other locations after considering factors such as locations of the parties, numbers and locations of witnesses, and the AJ's and other hearing participants' travel requirements. Most hearings are conducted in a "conference room" setting.
Alternate dispute resolution (ADR) is a non-adversarial process or method for resolving disputes. The most popular and commonly used ADR technique is mediation. While ADR is generally voluntary, EEOC requires that agencies offer ADR to complainants during the informal counseling and formal investigation phases of the complaint process. As a general rule, the AJ will not order the parties to participate in ADR if either or both object. So as not to unreasonably delay the hearing, if the parties agree to mediate the dispute, the AJ may issue appropriate orders to ensure the mediation is performed expeditiously.
An index and various sample forms and orders are included at the end of the FAQs to assist you and your representative prepare for the hearing. These orders are samples only and not the ones the AJ will issue in your case. You should wait to receive orders from the AJ assigned to your case before undertaking any action to respond.
Hearing participants generally consist of the AJ, the complainant, the parties' hearing representatives, a management official representing the agency, approved witnesses and the court reporter. Hearings are not open to the public. Spectators, therefore, are not allowed. Except for you, other witnesses are allowed in the hearing room only when actually testifying. Occasionally, other AJs, agency attorneys, EEO officials, union officials, etc. are allowed to observe hearings for training purposes. The length of hearings varies depending on the complexity of the issues, numbers of witnesses, etc. Generally, hearings are conducted during regular business hours. Occasionally, however, especially if the hearing is scheduled for a single day, the hearing may continue until it is completed.
The basic components of an evidentiary hearing are the following:
The burden is on you to prove through relevant and material evidence that the agency discriminated against you and are entitled to certain relief. In analyzing the evidence, the AJ will apply a "preponderance of the evidence" standard, not the "beyond a reasonable doubt" standard applicable in criminal proceedings. The term "preponderance of the evidence" refers to the deliberative process the AJ uses to determine which evidence in the case produces the stronger impression, has the greater weight and is the more convincing. This is also known as the burden of persuasion.
You carry the burden at all times of proving your allegations of discrimination and entitlement to relief.
You have the right to withdraw your request for a hearing at any time. If you do, your hearing request will be dismissed and the complaint retuned to the agency for issuance of a final decision in the time and manner specified in 29 C.F.R. §1614.110. If you wish to withdraw, simply provide the AJ a written statement to this effect and furnish the agency representative a copy. The AJ will promptly issue a dismissal order and cancel any scheduled pre-hearing conference, evidentiary hearing or other proceeding.
If you fail to attend the scheduled hearing or participate fully in proceedings after appearing, the AJ may direct you to explain your actions and state the reasons you should not be sanctioned for failure to prosecute your complaint. If warranted, the AJ may dismiss your hearing request and return the complaint to the agency for issuance of a final decision.
Yes. Keep in mind, however, that the documents making up the agency report of investigation automatically are part of the hearing record. You do not have to again offer these documents into evidence at the hearing.
There is no dress code for EEOC hearings. Most hearing participants wear regular office dress.
You should address the AJ deciding your case as "Judge".
A qualified court reporter will prepare a verbatim transcript of the hearing proceedings, including all witness testimony. The agency is responsible for obtaining and paying for the court reporter.
You will be provided one copy of the verbatim hearing transcript free of charge.
After closing the hearing record the AJ will render a decision in your case. The AJ may choose to issue an oral decision or s/he may issue a written decision at a later date. If the AJ chooses an oral decision, the AJ may issue the decision immediately following closing of the hearing, or the AJ may schedule a later telephone conference with the parties and the court reporter.
No. You do not have to pay a filing fee or other charges in connection with the hearing. You and the agency, however, are responsible for any costs you incur during the course of discovery or in preparing for the hearing. If the AJ decides the case in your favor (finding that you were discriminated against by the agency and are entitled to relief), the AJ may order the agency to reimburse some or all of your discovery and hearing preparation costs and, if you are represented by an attorney, reasonable attorney's fees.
Generally, after the parties rest their cases (or after the parties give closing statements) the AJ closes the hearing record. Thereafter, neither party may provide the AJ additional evidence or information concerning the case. Occasionally, after the hearing, the AJ asks the parties to brief a particular issue or the AJ may hold the hearing record open to permit either or both parties to file additional evidence. This is purely discretionary with the AJ. It is best to submit all of your evidence to the AJ at the hearing, before you announce you have "rested."
Yes. You will be provided a copy of the AJ's decision. In addition, you will be provided a copy of the hearing record, an order entering judgment for the prevailing party and a notice to the parties containing information about issuance of the agency's final order, appeal rights and other matters.
EEOC's goal is for cases to be decided within 180 days. The AJ will issue his or her final decision as soon as practical after the hearing.
In addition to rendering a decision in the case, the AJ also issues an order entering judgment for whichever party prevailed in the case. The AJ's decision and order and a copy of the hearing record will be sent to the designated agency representative responsible for issuing a final order in the case. The agency has 40 days from the time it receives these instruments to notify you whether the agency will fully implement the AJ's decision and notify you of your appeal rights. If the agency's final order does not fully implement the AJ's decision in the case, the agency must simultaneously file an appeal in accordance with 29 C.F.R. §1614.110(a).
The agency is required to issue a final decision in the time and manner specified in 29 C.F.R. §1614.110(b) if you elect not to request a hearing by an AJ (and instead request the agency to immediately issue a final decision in your case) or, if for any reason, the AJ dismisses your hearing request and returns the complaint for a final agency decision.
Yes. If you are dissatisfied with the Agency's final order implementing the AJ's decision, you may appeal to EEOC's Office of Federal Operations (OFO). The AJ and the agency will inform you of your appeal rights.
Alternatively, you may file a civil action in an appropriate United States District Court lieu of an administrative appeal to OFO. In choosing this course of action, you should first review the district court's regulations or rules.
|1. Request for a Hearing||The agency may provide you a special form. If not, you may use this form to request a hearing by an AJ.|
|2. Acknowledgment and Order||This is the first order you will receive from the EEOC. This is a standardized order informing you that the EEOC has received your request for a hearing, identifies the AJ assigned to your case and provides information concerning the practices and procedures governing adjudication of your case.|
|3. Supplemental Acknowledgment and Order||You may receive this order at the same time you receive the Acknowledgment and Order. The order provides additional information about practices and procedures governing adjudication of your case.|
|4. Designation of Representative||This form accompanies the Acknowledgment and Order and is for you to use to designate the person representing you in the case and provide current mailing addresses and other contact information.|
|5. Certificate of Service||This form should be attached to every motion, pleading or other document you provide the AJ. It shows you provided the agency representative a copy.|
|6. Notice To Parties||This document accompanies the Order Entering Judgment issued at the conclusion of the case. It contains information concerning issuance of the agency's final order, appeal rights and other matters.|
|7. Pleadings Verification||All witness affidavits and certain other motions and pleadings (e.g., Request to Postpone Hearing) must be sworn or verified. Attach or include this language at the end of the document.|
U. S. Equal Employment Opportunity Commission
San Antonio District Office
ATTN: Hearings Unit
5410 Fredericksburg Road, Suite 200
San Antonio, TX 78229
Re: Request for a hearing
I hereby request a hearing by an EEOC administrative judge.
Complainant's current mailing address:
Agency Complaint No(s):
I certify that I sent a copy of this request to the following agency official:
Acknowledgment and Order
This acknowledges receipt of Complainant's request for a hearing. 29 C.F.R. §1614.109 and Chapter 7 of EEOC Management Directive 110, November 9, 1999 (EEO MD-110) govern the conduct of hearings. The regulations and MD-110 are available on the Commission's website at www.eeoc.gov.
The Administrative Judge whose name appears below has been assigned to preside over this complaint. Failure to follow the orders of the Administrative Judge or to comply with the Commission's regulations may result in sanctions. See 29 C.F.R. §1614.109 (f) (3). When a conflict between the parties arises, the parties should attempt to resolve the conflict themselves before bringing it to the attention of the Administrative Judge.
I. Correspondence and Motions
Each party must provide the opposing party with a copy of all correspondence that he/she sends to the Administrative Judge. The attachment of a certificate of service may demonstrate that the opposing party was provided a copy. Failure to provide a copy of submissions to the opposing party may result in return of such submissions without consideration. The parties are reminded of their ongoing obligation to keep this office informed of their current mailing address. Other than to clarify a procedural issue or during alternative dispute resolution, it is inappropriate for the parties to engage in ex parte (one-sided) communication with the Administrative Judge.
Extensions of filing dates and postponements will not be granted absent a prompt request in writing and a showing of good cause. Failure by Complainant to obtain representation, or failure of the Agency to assign this matter to a representative, will not be grounds for postponement.
On any request or motion, the requesting party shall state that he/she has made a good faith effort to resolve the matter with the non-moving party and, where appropriate, indicate whether the opposing party has an objection to the request or motion. All motions should be accompanied by a proposed order granting the relief requested in the motion.
II. Designation of Representative
The parties are entitled to be represented. However, the complainant is not required to be represented. The EEOC does not provide representatives for either party. Even if Complainant has previously designated a representative for EEO counseling and agency investigation of the complainant, he/she must renew that designation for the purpose of the EEOC processing of this complaint. The parties must inform this office of the name, address and telephone number of their respective representative. If that representative changes, or if a currently unrepresented complainant obtains representation in the future, the party shall notify the Administrative Judge and the other party immediately.
III. Partial Dismissals
The parties have thirty (30) calendar days from receipt of this Order to identify any claims the Agency has dismissed from the complaint during the Agency investigative process pursuant to 29 C.F.R. § 1614.107 (a) and to comment on the appropriateness of each dismissal. Once the opportunity for identification and comment has passed, the Administrative Judge will determine pursuant to 29 C.F.R. § 1614.107 (b) the appropriateness of the Agency's decision to dismiss each claim. If the Complainant fails to oppose in writing the dismissal of a claim within the 30-day comment period, the opportunity to have the dismissal reviewed by the Administrative Judge shall be deemed waived.
Within 30 calendar days of receipt of this Order, the parties are directed to contact each other to define the issue(s) presented, to develop stipulations (i.e., agreements between the parties that certain facts are true for purposes of adjudicating this complaint) and to discuss settlement. The parties must discuss specific settlement proposals. The Agency must designate an individual with settlement authority to attend settlement discussions convened by an Administrative Judge.
The parties are hereby notified of their right to seek discovery prior to the hearing in accordance with 29 C.F.R. Section 1614.109(d). The parties must cooperate with each other in honoring discovery requests. The parties are expected to initiate and complete needed discovery with a minimum of intervention by the Administrative Judge. Except as indicated below, copies of interrogatories, requests for production of documents, requests for admissions, deposition notices and transcripts, and responses to such should not be sent to the Administrative Judge.
Absent prior approval from the Administrative Judge, a party must initiate discovery within twenty (20) calendar days of receipt of this Order. If a party does not submit a timely discovery request, the Administrative Judge may determine that the party has waived the right to pursue discovery.
A party must respond to a request for discovery within thirty (30) calendar days from receipt of the request. Requests for discovery and objections to such requests must be specific. A notice of deposition does not require a written response; however, any objection to a notice of deposition must be served promptly on the moving party. A deposition may be noticed and taken at any time during the discovery period.
Discovery motions, including motions to compel, must be filed within ten (10) calendar days after receipt of a deficient response or after the response to the discovery is due, whichever occurs first. Motions to compel and other discovery motions must be accompanied by the discovery requests and responses and a declaration stating that the moving party has made a good faith effort to resolve the discovery dispute. The declaration shall indicate the efforts made to resolve the dispute and identify which items remain in dispute. Statements in opposition to discovery motions must be filed within ten (10) calendar days of receipt of the motion. Rulings will be made based upon the written submissions. The failure to timely file objections to discovery may result in the objections being deemed waived.
VI. Sanctions for Failure to Follow Orders
Failure to follow this Order or other orders of the Administrative Judge may result in sanctions pursuant to 29 C.F.R. §1614.109(f) (3). The Administrative Judge may, where appropriate:
VII. Decision Without a Hearing
Pursuant to 29 C.F.R. §1614.109(g)(1), a party may file a motion for summary judgment if that party believes that some or all material facts are not in genuine dispute and there is no genuine issue as to credibility. A motion for summary judgment must include a statement of the undisputed material facts. Unless otherwise ordered by the Administrative Judge, a motion for summary judgment must be filed not later than fifteen (15) days after the close of discovery. The opposing party will then have fifteen (15) days from receipt of the motion in which to file a response. The moving party will then have five (5) days from receipt of the response to file a reply. Motions for summary judgment and responses to such motions shall contain specific citations to reference evidence (e.g., cite the specific pages of the report of investigation, or other submitted evidence in support of an argument).
The Administrative Judge may also issue summary judgment on his/her own initiative, pursuant to 29 C.F.R. §1614.109 (g) (3).
An Administrative Judge may also dismiss a complaint pursuant to 29 C.F.R. §1614.109 (b) for any of the reasons set forth in 29 C.F.R. §1614.107 (a). The Administrative Judge may dismiss complaints on his/her own initiative, or upon the Agency's motion to dismiss a complaint.
VII. Amendment and Consolidation of Complainants
Pursuant to 29 C.F.R. §1614.106(d), the Complainant may move to amend his/her complaint to add claims that are like or related to the original complaint. In order to amend the complaint, the Complainant shall submit a motion as early as possible to the Administrative Judge stating the new claim, the date(s) when it occurred, and why it is like or related to the original complaint. The Administrative Judge may amend the original complaint to include the new claim(s) if he/she finds the new claim is like or related to the original complaint. Motions to amend filed late in the process may be denied.
The Administrative Judge also has discretion to consolidate complaints pursuant to 29 C.F.R. §1614.606. The parties shall advise the Administrative Judge in writing of any other complaint(s) pending at any stage of processing and should include all case number(s) or other information identifying such complaint(s).
JOHN A. SMITH
Supplemental Acknowledgment and Order (1)
This order supplements the Acknowledgment and Order (or Consolidated Acknowledgment and Order) previously issued in this case. This order has been adopted to further standardize practice and procedure in cases before Administrative Judges of the San Antonio District Office.
Service and Receipt of Orders
1. Service of any order issued by the Administrative Judge on the parties is complete upon mailing. The order will be presumed to have been received by the parties not later than 5 calendar days after mailing.
Correspondence and Motions
2. Faxed submissions are authorized. Do not submit the original via U.S. Mail or other delivery means if the item has been previously faxed. Unless expressly authorized by the Administrative Judge, any submission faxed to any fax number other than (210) 281-2520, or any submission that exceeds 20 pages in length, will be automatically rejected. Parties may not circumvent the restriction on number of pages faxed by "batching" submissions.
3. Any request or motion of a party requiring action by the Administrative Judge will prominently indicate whether the matter is opposed by the other party. All correspondence, requests and motions will be dated (mm/eddy). Communication with the Administrative Judge via e-mail is not authorized.
4. Parties and their representatives may not assume that a motion or request filed with the Administrative Judge, even if unopposed by the other party, will be approved. The mere act of filing a motion or request will not operate to extend a deadline or setting.
Citations To Legal Authorities
5. When citing to legal authorities in briefs and other pleadings, parties are advised to focus on applicable statutes and U.S. Supreme Court case law and on Commission case law, regulations, directives and instructions. The case law of federal circuit courts of appeal and district courts, while perhaps persuasive, is not necessarily the dispositive law of the case.
Designation of Representative
6. Within 10 days of receipt of this order, Complainant (whether or not represented) and the Agency will complete and file the "Designation of Representative" form attached to the Acknowledgment and Order, or provide the specified information in substantially similar written form. Additionally, within 5 days of any withdrawal, change or substitution of a party's representative, the party will give written notice. Once a representative enters his or her appearance in the case, the representative may not subsequently withdraw from representing a party without requesting and obtaining the approval of the Administrative Judge.
7. If represented, the parties will act through their respective designated representatives in regard to all matters involving the case. Pleadings filed in the case will be signed by the representative, whose signature block will include the representative's mailing address, telephone number and fax number (if any) and indicate the party on whose behalf the representative is acting (e.g., Complainant's Representative).
8. Settlement of cases without the necessity for a hearing or issuance of a decision by the Administrative Judge is highly encouraged. During the course of settlement discussions, the parties are expected to discuss and consider specific ideas, methods and means of resolving all matters in controversy, recognizing that compromises by both parties may be required in order to reach a settlement. Discussions that merely restate and reinforce the parties' respective positions are unlikely to resolve the complaint and are discouraged. Alternative methods or means of dispute resolution ("ADR"), for example, mediation, affords parties the opportunity to craft creative settlement solutions that bi-lateral negotiations between the parties oftentimes do not. Use of ADR, therefore, is encouraged. Ideally, ADR should be undertaken after discovery is completed and well in advance of the scheduled hearing. In addition to contacting each other during the first 30-days after receipt of the Acknowledgment and Order, if no settlement is reached, the parties are directed to again contact each other during the week preceding the scheduled pre-hearing conference and to jointly assess prospects for settlement. During the pre-hearing conference the parties are expected to brief the Administrative Judge concerning all prior settlement efforts. Neither party, however, is obligated to settle. If no settlement is forthcoming, a decision by the Administrative Judge will be issued in due course, with or without a hearing, as appropriate.
9. In the event a settlement is reached, the parties will execute a written settlement agreement (or memorandum of agreement) and promptly deliver a copy to the Administrative Judge or, upon request, the hearing record may be opened and the settlement terms read into the record. Any previously scheduled pre-hearing conference or hearing will not be cancelled until the foregoing is accomplished. If a hearing has been scheduled, the parties may not release the witnesses or the court reporter unless authorized by the Administrative Judge.
10. Discovery that is timely and properly conducted facilitates expeditious adjudication of complaints. Non-compliance or untimely compliance with parties' legitimate discovery requests, or hyper-technical responses or objections to discovery requests, defeat this purpose and are discouraged, and may subject the parties or the parties' representatives to sanctions.
11. Parties are encouraged to enter into discovery agreements tailored for the particular case, failing which, the provisions and deadlines contained in the Acknowledgment and Order will be strictly followed and enforced. Requests for extensions of discovery deadlines delay orderly processing of the case and are discouraged. Extensions will be granted only upon a showing of good cause.
12. Parties will not send copies of discovery requests or discovery responses to the Administrative Judge unless they are exhibits to a pending discovery motion (e.g., a motion to compel).
13. Parties are requested to give the Administrative Judge written notice of the date discovery is commenced or if discovery is waived.
14. The parties may request approval of witnesses to testify at the hearing. The request must be made to the Administrative Judge in writing and a copy provided to the opposing party. The request will include the name, position, and location of each witness. The request also will number each witness and will include a synopsis of the expected testimony of the witness in relation to the issue(s) to be decided in the case. Only witnesses whose testimonies are relevant and material to the issue(s) to be decided, and which are not repetitive of other witness testimony, will be approved. Absent a showing of good cause, submission of a witness list after the specified deadline may result in disapproval of some or all of the requested witnesses.
15. If an approved witness is an employee of the United States Government, the Agency will arrange for the witness to appear at the hearing and will be responsible for any costs. The Administrative Judge cannot compel the attendance of a witness at the hearing who is not currently employed by the Federal Government (e.g., a former federal employee who has resigned or retired). Attendance of any approved witness who is not currently a federal employee is the responsibility of the party requesting the witness. The Agency will notify Complainant or his/her representative as soon as practicable if, for whatever reason, any approved witness the Agency was ordered to make available, will be unavailable to testify at the hearing.
16. It is assumed that the Complainant intends to testify at the hearing and, therefore, is automatically approved as a witness.
17. Documents comprising the Report of Investigation constitute a portion of the record of this case, are deemed admitted into evidence and need not be re-offered into evidence by either party. Copies of documents not already part of the Report of Investigation, which either party intends to offer into evidence at the hearing, will be pre-marked for identification and delivered to the Administrative Judge at the start of the hearing, and to the opposing party (or his/her representative) at least 3 work days prior to the start of the hearing. Complainant will pre-mark exhibits, individually, using the designations, "C-1, C-2, C-3", et seq. The Agency will use the designations, "A-1, A-2, A-3", et seq. Unless authorized by the Administrative Judge, exhibits comprising more than 20 pages may not be faxed to the Administrative Judge.
18. The Court Reporter is the official exhibit custodian. Exhibits admitted into evidence at the hearing will be provided to the Court Reporter and made part of the hearing record. Parties should provide the Court Reporter a complete set of exhibits at the start of the hearing and, if there are more than 5 exhibits, will also prepare a list or index of the proposed exhibits.
19. At the initial pre-hearing conference to be scheduled in this case, the parties will be prepared to discuss the following matters:
Duration of Hearings, Rest Breaks, Etc.
20. Hearing proceedings generally will be limited to 8 hours per day. If the hearing is scheduled for a single-day hearing, proceedings generally will continue until completed. The parties should prepare and limit their hearing presentations to the available time. Generally, parties will be afforded 10-minute rest breaks mid-morning and mid-afternoon each hearing day. As meal times approach, the Administrative Judge, after consulting with the parties and their representatives, will decide whether to break for a meal and, if so, for how long. Hearing participants may ask the Administrative Judge for additional rest breaks, as necessary.
21. Excepting cases involving bona fide emergencies, a party seeking to re-schedule a pre-hearing conference, hearing or other proceeding set by the Administrative Judge, must file a written request that has been sworn to before a notary public or verified via an unsworn statement. If the requested delay is for medical reasons, suitable medical documentation must be provided. Continuances will be granted only upon a showing of good cause.
22. A representative who enters an appearance in a Commission EEO proceeding becomes subject to disciplinary action by the Administrative Judge or the Commission for any improper conduct engaged in by the representative at any stage of the proceeding. See EEO MD-110, p. 7-28. A representative cannot avoid the Commission's jurisdiction in disciplinary matters by withdrawing from representation, withdrawing the complaint or request for hearing, or by removing the complaint to federal court. Any attorney representative who engages in flagrant improper conduct may be referred to the disciplinary committee of the appropriate bar association. See 29 C.F.R. §1614.109 (e); EEO MD-110, p. 7-29.
Sanctions For Failure To Follow Orders
23. Failure of a party or a party's representative to comply with this or any other order issued by the Administrative Judge, following notice to show cause, is subject to appropriate sanctions, including the drawing of adverse inferences, exclusion of witnesses or evidence, issuance of decisions or rulings adverse to the non-complying party, or dismissal of all or a portion of the complaint.
JOHN A. SMITH
1. This order is periodically revised. Parties and their representatives, therefore, should thoroughly read this order and not rely on their knowledge of the contents of earlier versions of the order.
DESIGNATION OF REPRESENTATIVE
OPTION A: ELECTION TO PROCEED WITH A REPRESENTATIVE
The following individual is designated as the representative for the ____COMPLAINANT or ___ AGENCY in the above-captioned case. ____________________________________________________________________________ Name of Representative/Telephone No. /Facsimile No. Representative's Mailing Address: __________________________________________ __________________________________________ __________________________________________ __________________________________________ __________________________________________ E-mail Address: __________________________
OPTION B: ELECTION TO PROCEED WITHOUT A REPRESENTATIVE
Check this block [ ] if the Complainant elects to proceed without a representative in the above-captioned case. Complainant must immediately notify the Administrative Judge and the Agency Representative, in writing, if he/she obtains representation at a later date. _____________________________ (Party's signature and date) Complainant's current contact information: Mailing address: __________________________________________ __________________________________________ __________________________________________ __________________________________________ Telephone Number: __________________________________________ Fax Number: __________________________________________ E-mail Address: __________________________________________
On this date, a true copy of the attached instrument was mailed to the below-named individuals. NOTE: For timeliness purposes it will be presumed that this instrument was received within five (5) calendar days of the mailing date specified below.
[Name and mailing address]
[Name and mailing address]
Complainant [Complainant's Representative]
NOTICE TO PARTIES
To The Agency
Within forty (40) days of receiving this decision and the hearing record, you are required to issue a final order notifying the Complainant whether you will fully implement this decision. You should also send a copy of your final order to the Administrative Judge.
Your final order must contain a notice of the Complainant's right to appeal to the Office of Federal Operations, the right to file a civil action in a federal district court, the name of the proper defendant in any such lawsuit, the right to request the appointment of counsel and waiver of court costs or fees, and the applicable time limits for such appeal or lawsuit. A copy of EEOC Form 573 (Notice of Appeal/Petition) must be attached to your final order.
If your final order does not fully implement this decision, you must simultaneously file an appeal with the Office of Federal Operations in accordance with 29 C.F.R. 1614.403 and append a copy of your appeal to your final order. See Appendix O, EEO MD-110. You also must comply with the Interim Relief regulation set forth at 29 C.F.R. 1614.505.
To The Complainant
You may file an appeal with the Commission's Office Federal Operations when you receive a final order from the Agency informing you whether the Agency will or will not fully implement this decision. 29 C.F.R. 1614.110 (a). From the time you receive the Agency's final order, you will have thirty (30) days to file an appeal. If the Agency fails to issue a final order, you have the right to file your own appeal any time after the conclusion of the Agency's 40-day period for issuing a final order. See EEO MD-110, p. 9-3. In either case, please attach a copy of the AJ's decision with your appeal.
Do not send your appeal to the Administrative Judge. Your appeal must be filed with the Office of Federal Operations at the address set forth below and you must send a copy of your appeal to the Agency at the same time you file it with the Office of Federal Operations. You must certify, in or attached to your appeal to the Office of Federal Operations, the date and method by which you send a copy of your appeal to the Agency.
Where To File An Appeal
All appeals to the Commission must be file by mail, hand delivery or facsimile.
Director, Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, DC 20013
BY PERSONAL DELIVERY:
Director, Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Washington, DC 2050
Telephone No. (202) 663-7022.
NOTE: Faxes over 10 pages will not be accepted.
Compliance With Agency Final Action
Pursuant to 29 C.F.R. 1614.504, the Agency's final action that has not been the subject of an appeal to the Commission or a civil action is binding on the Agency. If the Complainant believes that the Agency has failed to comply with the terms of the decision, Complainant shall notify the Agency's EEO Director, in writing, of the alleged noncompliance within 30 days of when the Complainant knew or should have known of the alleged noncompliance. The Agency shall resolve the matter and respond to the Complainant in writing. If the Agency has not responded to the Complainant, in writing, or if the Complainant is not satisfied with the Agency's attempt to resolve the matter, the Complainant may appeal to the Commission for a determination of whether the Agency has complied with the terms of its final action. The Complainant may file such an appeal 35 days after serving the Agency with allegations of non-compliance, but must file an appeal within 30 days of receiving the Agency's determination. A copy off the appeal must be served on the Agency and the Agency may submit a response to the Commission within 30 days of receiving the notice of appeal.
STATE OF __________________ ) ) ) COUNTY OF _________________ ) This instrument was subscribed to and sworn (or affirmed) before me this ________ day of ___________________, 200 ____, by ________________________________________. (Affiant's name) ________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF _____________ Printed Name: My Commission Expires:
I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. EXECUTED _________________, 200____ __________________________ (Signature)