Eeoc aj handbook

A class agent may appeal a final decision on a class complaint.. A class member may appeal a final decision on an individual claim for relief pursuant to a finding of class-wide discrimination. Finally, both the class agent or the agency may appeal from an AJ decision on the adequacy of a proposed settlement of a class action. Any statement or brief on behalf of a complainant in support of an appeal must be submitted to OFO within 30 days of filing the notice of appeal.

Any statement or brief on behalf of the agency in support of its appeal must be filed within 20 days of filing the notice of appeal. An agency must submit the complaint file to OFO within 30 days of initial notification that the complainant has filed an appeal or within 30 days of submission of an appeal by the agency.

Any statement or brief in opposition to an appeal must be submitted to OFO and served on the opposing party within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal has been filed, within 60 days of receipt of the appeal. EEOC has the authority to draw adverse inferences against a party failing to comply with its appeal procedures or requests for information. The decision on an appeal from an agency's final action is based on a de novo review, except that the review of the factual findings in a decision by an AJ is based on a substantial evidence standard of review.

A party may request that EEOC reconsider its decision within 30 days of receipt of the Commission's decision. Such requests are not a second appeal, and will be granted only when the previous EEOC decision involved a clearly erroneous interpretation of material fact or law; or when the decision will have a substantial impact on the policies, practices or operations of the agency. The EEOC's decision will be based on a preponderance of the evidence.

The decision will also inform the complainant of his or her right to file a civil action. Prior to filing a civil action under Title VII of the Civil Rights Act of or the Rehabilitation Act of , a federal sector complainant must first exhaust the administrative process set out at 29 C.

Part The regulations provide that civil actions may be filed in an appropriate federal court: 1 within 90 days of receipt of the final action where no administrative appeal has been filed; 2 after days from the date of filing a complaint if an administrative appeal has not been filed and final action has not been taken; 3 within 90 days of receipt of EEOC's final decision on an appeal; or 4 after days from the filing of an appeal with EEOC if there has been no final decision by the EEOC.

Part may also file a civil action within the time frames noted above. Under the Equal Pay Act, a complainant may file a civil action within 2 years 3 years for willful violations , regardless of whether he or she has pursued an administrative complaint.

Class complaints of discrimination are processed differently than individual complaints. See 29 C. The employee or applicant who wishes to file a class complaint must first seek counseling and be counseled, just like an individual complaint. However, once counseling is completed the class complaint is not investigated by the respondent agency. The AJ examines the class to determine whether it meets the class certification requirements of numerosity, commonality, typicality and adequacy of representation.

The AJ may issue a decision dismissing the class because it fails to meet any of these class certification requirements, as well as for any of the reasons for dismissal discussed above for individual complaints see section 5, above. A class complaint may begin as an individual complaint of discrimination.

At a certain point, it may become evident that there are many more individuals than the complainant affected by the issues raised in the individual complaint. EEOC's regulations provide that a complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claims raised in an individual complaint.

The AJ transmits his or her decision to accept or dismiss a class complaint to the class agent and the agency. The agency must then take final action by issuing a final order within 40 days of receipt of the AJ's decision. The final order must notify the agent whether or not the agency will implement the decision of the AJ. A copy of the agency's appeal must be appended to the agency's final order. A dismissal of a class complaint shall inform the class agent either that the complaint is being filed on that date as an individual complaint and processed accordingly, or that the complaint is also dismissed as an individual complaint for one of the reasons for dismissal discussed in section E, above.

When a class complaint is accepted, the agency must use reasonable means to notify the class members of the acceptance of the class complaint, a description of the issues accepted as part of the complaint, an explanation of the binding nature of the final decision or resolution on the class members, and the name, address and telephone number of the class representative. The AJ then issues a recommended decision to the agency.

Within 60 days of receipt of the AJ's recommended decision on the merits of the class complaint, the agency must issue a final decision which either accepts, rejects or modifies the AJ's recommended decision. If the agency fails to issue such a decision within that time frame, the AJ's recommended decision becomes the agency's final decision in the class complaint. When discrimination is found in the final decision and a class member believes that he or she is entitled to relief, the class member may file a written claim with the agency within 30 days of receipt of notification by the agency of its final decision.

The claim for relief must contain a specific showing that the claimant is a class member entitled to relief. EEOC's regulations provide that, when a finding of discrimination against a class has been made, there is a presumption of discrimination as to each member of the class. The agency must show by clear and convincing evidence that any class member is not entitled to relief. The agency must issue a final decision on each individual claim for relief within 90 days of filing.

A class complaint may be resolved at any time by agreement between the agency and the class agent. If the AJ finds that the proposed resolution is not fair to the class as a whole, the AJ will issue a decision vacating the agreement, and may replace the class agent with some other eligible class member to further process the class complaint.

Such decision may be appealed to EEOC. The Administrative Judge will resolve discovery disputes only after the parties have made a good faith effort to resolve the dispute.

Requests for discovery should be addressed to the agency representative, complainant, and complainant's representative of record, and not to the Administrative Judge , unless requested by the Administrative Judge.

Where a party inappropriately submits a discovery request to the Administrative Judge, the required time frame for submitting the request to the appropriate party will not stop running unless the Administrative Judge rules otherwise. Copies of discovery requests should not be provided to the Administrative Judge unless a motion to compel or a response to a motion to compel is being filed or if otherwise directed by the Administrative Judge. The request should be: 1 as specific as possible and 2 reasonably calculated to discover non-repetitive, material evidence.

A response means:. Following the filing of an opposition, if any, to the motion to compel discovery, the Administrative Judge will rule expeditiously on the request for discovery.

In the alternative, the Administrative Judge may, in the interest of expediting the hearing, order that the document s , witness es , or other evidence at issue be produced at the hearing. Where the Administrative Judge finds that the request for discovery that is the subject of the motion to compel is irrelevant, overburdening, repetitious, or privileged, the Administrative Judge will deny the motion to compel and may, upon the request of the party opposing the motion to compel, or upon the Administrative Judge's own initiative, issue such protective orders as the Administrative Judge determines appropriate.

A failure to respond or follow an order to comply with a request for discovery may result in sanctions. See Section III. It is the intention of the Commission that the parties utilize the informal or formal discovery procedures provided for in this Chapter to develop the record in the complaint or that the record be developed to the extent necessary through the Administrative Judge's orders for documents, information, and witnesses.

Under previous Commission guidance, the failure to request discovery did not imply a waiver of the opportunity of the parties to make requests for documents and witnesses at the hearing. Allowing parties this opportunity at the time of the hearing, regardless of whether the discovery process was invoked, is not consistent with sound administrative economy and with the expeditious processing of complaints.

The parties shall initially bear their own costs with regard to discovery, unless the Administrative Judge requires the agency to bear the costs for the complainant to obtain depositions or any other discovery because the agency has failed to complete its investigation timely as required by 29 C.

All participants in the EEO hearing process have a duty to maintain the decorum required for a fair and orderly proceeding and to obey orders of the Administrative Judge.

Any person who engages in improper behavior or contumacious conduct as defined in Section V. It further provides that if the complainant's or agency's representative engages in misconduct or refuses to obey an order of the Administrative Judge, the Commission may suspend or disqualify the representative from future hearings, refer the matter to an appropriate licensing authority, or both.

An Administrative Judge has the power to regulate the conduct of a hearing and to exclude any person from a hearing for contumacious conduct or misbehavior that obstructs the hearing. The Administrative Judge may exclude any disruptive person, including the complainant, an agency official, or a representative, including agency or complainant counsel.

This sanction generally applies to conduct occurring in the Administrative Judge's presence at any point during the hearing process, including prehearing proceedings and teleconferences as well as the hearing itself.

It also applies to a representative's refusal to obey orders of the Administrative Judge. The exclusion bars the individual, for the duration of the hearing process, from further participation in the case in which the misconduct occurs.

In contrast, a disqualification of a representative applies to future hearings. The procedure for disqualification is in Section V. B below. The authority of an Administrative Judge to impose an exclusion under 29 C. For example, courts have certain implied powers that are necessary to the exercise of all others.

Chambers v. Dunn , 19 U. Wabash R. Inherent powers must be exercised with restraint and discretion. In considering the imposition of sanctions, Administrative Judges must take steps to ensure fairness to the parties and the effectiveness of the sanction in furthering the orderly conclusion of the hearing process. Sanctions should be proportional to the nature and degree of the improper conduct.

Administrative Judges may look to rules of ethics, common law, statutes, and case law to determine the propriety and nature of a sanction. With respect to sanctions against a representative, the Administrative Judge should be mindful that a party to the EEO process is entitled to be represented by an individual of that party's choice, and the representative is expected to be an advocate for the party's interests.

Nonetheless, by virtue of their position, all representatives also have a particular responsibility to respect the order and authority of the EEO process.

See subsection 4 below. In addition to exclusion under 29 C. Sanctions under 29 C. The failure of a party to produce evidence or obey an order may support the drawing of an adverse inference about a matter in dispute, the exclusion of other evidence offered by that party, or a decision on the merits in favor of the other party.

Monetary sanctions include attorney's fees and the costs of discovery. The parties should be informed that engaging in improper conduct or failing to comply with orders of the Administrative Judge or Commission regulations may result in sanctions under 29 C. Giving such a warning is within the Administrative Judge's discretion however. Any asserted failure to advise the parties of the potential for sanctions does not limit the Administrative Judge's authority to impose a sanction.

A person's conduct is contumacious when it is "willfully stubborn and disobedient. Contumacious behavior or disruptive conduct may include any unprofessional or disrespectful behavior; degrading, insulting, or threatening verbal remarks or conduct; the use of profanity; or conduct engaged in for the purpose of improperly delaying the hearing.

However, the Administrative Judge may take into consideration other improper conduct engaged in by the individual on any previous occasion before that judge, if the Administrative Judge had clearly described the misconduct for the record in the earlier proceeding or the misconduct is otherwise clearly apparent from the record. In addition, there may be situations in which a decision to exclude a person may take into consideration prior misconduct before a different Administrative Judge or the Commission.

This should be done in appropriate circumstances, taking into account the nature and degree of the misconduct. If the sanctioned individual engages in further improper conduct in a subsequent hearing before the same or a different Administrative Judge, the prior sanction should be considered in determining whether to exclude the individual from the subsequent hearing.

Representatives may also be excluded for refusal to follow the orders of an Administrative Judge or other improper conduct, in addition to "contumacious conduct or misbehavior that obstructs the hearing. If a party's representative engages in repetitive misconduct or conduct justifying exclusion, the Commission also will consider imposing a suspension or disqualification through the procedure described in Section B below. Unless the improper conduct is so egregious as to compromise the order required for a fair and orderly proceeding, the Administrative Judge normally should first warn the offending person to stop the conduct.

The warning should give notice that if the conduct continues, the person will be excluded from the hearing. When imposing the sanction, the Administrative Judge must ensure that the record includes a clear and specific description of the nature of the misconduct. The record must include the particular details of what the person said or did, rather than a conclusory characterization. Any gestures or actions that would not be apparent from the hearing transcript should be clearly described for the record.

If the person used profanity or other improper or threatening language before the Administrative Judge while off the record or at a proceeding that is not being transcribed, the Administrative Judge should relate the particular language used in a statement on the record or other written statement made a part of the record. An Administrative Judge's decision to exclude a person from a hearing is final. There is no right to an interlocutory appeal of an exclusion decision. A party may raise the issue as part of an appeal of the final order on the case when the party asserts it has been deprived the opportunity for a fair hearing.

If the complainant engages in obstructive misconduct or contumacious conduct, the Administrative Judge should warn the complainant as described above and consider recessing the hearing for a short time to restore order. If the complainant's misconduct is extreme or persistent, the Administrative Judge may, pursuant to 29 C. If the agency's representative is excluded, the Administrative Judge must notify the agency of the exclusion.

The Administrative Judge also may impose an evidentiary sanction against either party as provided in 29 C. For example, when misconduct has prevented or hindered the development of evidence, the Administrative Judge may draw an adverse inference; consider the matter to be established in favor of the opposing party; exclude other evidence; or issue a decision fully or partially in favor of the opposing party.

The standard for imposing such a sanction must be the same for both complainants and agencies. A sanction should be proportional to the level of the misconduct and reflect the degree to which the misconduct has impeded a full and fair hearing. In the case of repeated or flagrant improper conduct by a representative, the Administrative Judge or the Commission may take further action. These provisions apply not only to conduct at the hearing stage of the case but also to all other actions taken by a representative in the course of an EEO proceeding, including the appeal.

A disqualification applies to future representation of a party before the Commission, at both the hearing and appellate stages. A show cause order accomplishes this notice. For improper conduct or a refusal to follow orders at the hearing stage, the Administrative Judge will issue the show cause order and certify the matter to the Director, Office of Federal Operations, for a determination.

In addition, the Administrative Judge may, separately or simultaneously, issue an order excluding the representative from the hearing process in the case at bar, in accordance with the provisions discussed above. If the representative is an attorney, referral to the appropriate bar association normally should be considered as well, pursuant to Section C below.

For improper conduct during the appeal, the Office of Federal Operations will issue the show cause order. An order suspending or disqualifying a representative from future hearings must specify the time period the penalty will be in effect, which must be commensurate with the severity of the conduct. When the Administrative Judge or the Commission proposes to suspend or disqualify the agency's representative, a copy of the show cause order and subsequent decision must be provided to the agency's EEO Director.

This may be done independently of, or in conjunction with, any proposed or final exclusion, suspension, or disqualification. The Administrative Judge then would issue a second decision subsequent to the end of this day period concerning the quantum of relief and attorney's fees. In this situation, the agency's day period for taking final action on the Administrative Judge's decision and determining whether it will implement the decision begins on its receipt of the second decision and the hearing file.

The Commission notes, however, that considerations of proximity will generally exclude the use of video conferencing when all participants and the Administrative Judge are located within commuting distance of an appropriate location for an in-person hearing.

But cf. Louthen v. Objections to video conference raised on appeal will be reviewed by the Commission under the abuse of discretion standard, on a case-by-case basis. Sanctions only would be appropriate where a party subsequently fails to comply with an order or request of the Administrative Judge that puts the party on notice of the type of sanction that may be imposed for noncompliance.

This rule applies in all instances where the Administrative Judge intends to impose a sanction on a party for a failure to comply with an order or request that does not make clear what sanction s may be imposed for noncompliance. At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of 1 a party who is a natural person, or 2 an officer or employee of a party which is not a natural person designated as its representative by its attorney, or 3 a person whose presence is shown by a party to be essential to the presentation of the party's cause, or 4 a person authorized by statute to be present.

D of this Chapter in this Management Directive, for a discussion of placing a party on notice that sanctions may be imposed before ordering their imposition. However, see also Council v. The Commission found that complainant's representative "engaged in contumacious conduct of the worst kind: asking questions which the witnesses could not comprehend, then berating the witnesses for failing to answer; repeatedly testifying rather than asking questions; vociferously arguing on the record with the agency representative and the Administrative Judge; defying the authority of the Administrative Judge with regard to evidentiary rulings and the conduct of the hearing; and threatening the Administrative Judge over an evidentiary ruling.

Any one of the types of misconduct noted in Bradley would alone be sufficient. Under 29 C. In contrast to disqualification for misconduct, a disqualification for conflict of interest under 29 C. Parties shall disclose and reasonably attempt to avoid all conflicts of interest.

Management Directive I. Should the agency's organizational component where the complaint arose not fall within one of the geographical jurisdictions shown in Appendix N, the agency should contact the following office for guidance: Equal Employment Opportunity Commission Office of Field Programs Attention: Hearings Coordinator M Street, NE. Washington, DC Email at: info eeoc.

The Administrative Judge has full responsibility for the adjudication of the complaint, which includes, but is not limited to, the following: Issue decisions on complaints. Administer oaths. Regulate the conduct of hearings. Limit the number of witnesses so as to exclude irrelevant and repetitious evidence. Order discovery or the production of documents and witnesses by serving orders on both parties. Issue protective orders not to disclose information.

History of EEO complaints against Mr. XXX [which Agency objected to as irrelevant] is relevant; therefore, all records pertaining to the history must be produced. XXX and the subordinates thereof. 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.

You need to file a motion for admission of the records as evidence. Sometimes, you may include these new evidence in your Pre h earing Report. See below for Pre h earing 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. H ow to prepare for a deposition. Hearsay evidence is allowed in the EEOC hearing p roceeding , including in the Motions, Prehearing Report, 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 j udges 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. Decision Without A Hearing The judge may decide to render a summary judgment without holding a hearing. Sometimes, the judge m ay 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, t he Agency files a motion for a summary judgment or a Motion for a Decision Without a Hearing. You or your representative should file a response to such a motion in opposition. See a sample. 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 i n fact disputed or disputable.

I f 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 o f you in comparison to the other similarly situated individuals, you may also file a motion for a summary judgment in your favor.

But don't do it unless you have "drop dead" evidence against the Agency such as the decision maker admitting that he fired you because you had disability. This also has the criteria for permitting AJ to render a summary judgment and how to defeat a motion for summary judgment. 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.

Note : Due to caseload or for whatever reasons, there is a great tendence on the part of the AJ's to render a decision without a hearing almost always in favor of the Agency.

It must be noted that EEOC "hearing process is intended to be an extension of the investigative process, designed to "ensur[e] that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses. Reg 37,, 37, to be codified and hereinafter referred to as 29 C. Bang v. See also Peavley v. The FAD will be issued to you within the 40 days of receipt of the judge's decision.

Scheduling Order Due to case backlog or otherwise, the EEOC administrative judges may not be able to schedule a hearing 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. District Court 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 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. 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.