The hearing is an adjudicatory proceeding that completes the process of developing a full and appropriate record. A hearing provides the parties with a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses. Hearings are governed by § 1614.109. An Administrative Judge from the EEOC adjudicates claims of discrimination and issues decisions. Administrative Judge decisions, in non-class action cases, become the final action of the agency if the agency does not issue a final order within forty (40) days of receipt of the Administrative Judge's decision in accordance with § 1614.110(a). A complainant may appeal an agency's final action or dismissal of a complaint. An agency may appeal as provided in § 1614.110(a). 29 C.F.R. § 1614.401(a) & (b).
Section 1614.108(f) generally provides, among other things, that within 180 days from the complainant's filing of his/her complaint, an agency shall provide the complainant with a copy of the investigative file and shall notify the complainant that within thirty (30) days of the complainant's receipt of the investigative file that the complainant has the right to request a hearing and decision from an Administrative Judge or a final agency decision from the agency.(1) The agency's duty to send this notice and the complainant's right to receive it are not dependant on the agency's completion of the investigation.
A complainant must submit the hearing request directly to the EEOC district or field office having jurisdiction over the geographic area in which the complaint arose, as set forth in Appendix J of this Management Directive, and provide a copy of the request to the agency. See § 1614.108(g). (The Commission has prepared a hearing request form that agencies may provide to complainants for their use in requesting a hearing, which advises complainants that they are to send a copy of the request to the agency. See Appendix N.) Upon receipt of the request for a hearing, the EEOC district or field office will send a docketing letter to the complainant and the agency, in which it will provide the parties with an EEOC Hearings Unit No., and will request that the agency forward a copy of the complaint file within the earlier of fifteen (15) days of its receipt of the complainant's request for a hearing or receipt of the docketing letter.
In an agency's written acknowledgment of receipt of a complaint or an amendment to a complaint, the agency shall advise the complainant of the EEOC office and address where a hearing request is to be sent as well as the agency office to which the copy of the request should be sent. In the absence of the required notice from the agency, the complainant may request a hearing at any time after 180 days have elapsed from the filing of the complaint by submitting his/her written hearing request directly to the appropriate EEOC district or field office indicated in the agency's acknowledgment letter. § 1614.108(g). In the case of accepted class complaints, an EEOC Administrative Judge will, pursuant to § 1614.204(h), conduct a hearing on the complaint in accordance with § 1614.109(a) through (f).
Generally, an Administrative Judge will conduct a hearing on the merits of a complaint unless: 1) the parties mutually resolve the complaint and the hearing request is withdrawn; 2) the hearing request is otherwise voluntarily withdrawn; 3) the Administrative Judge dismisses the complaint; or 4) the Administrative Judge determines that material facts are not in genuine dispute and issues an order limiting the scope of the hearing or issues a decision without a hearing pursuant to § 1614.109(g). The Administrative Judge will issue a decision on a complaint and shall order appropriate remedies and relief when discrimination has been found within 180 days of his/her receipt of the complaint file from the agency, unless the Administrative Judge makes a written determination that, in his/her discretion, good cause exists for extending the time for issuing a decision. § 1614.109(i).(2)
Within fifteen (15) days of its receipt of a copy of the complainant's request for a hearing sent to an EEOC district or field office or the docketing letter from the district or field office, whichever is earlier, the agency shall send a copy of the complaint file, including the investigative file, to the district or field office. The agency also shall send a copy of the complaint and investigative file(s) to the complainant, if it has not previously done so.
The agency is responsible for arranging for an appropriate size room in which to hold the hearing and must ensure that all approved witnesses who are federal employees are notified of the date and time of the hearing and the approximate time that their presence will be required. The agency is responsible for ensuring the appearance and travel arrangements to the hearing site of approved witnesses who are federal employees.
Access to the hearing room and the record of the hearing shall be restricted in accordance with the Commission's regulation. See § 1614.109(e).
The agency shall arrange and pay for a verbatim transcript (printed or typewritten) of the hearing proceedings pursuant to § 1614.109(h). All exhibits submitted to the Administrative Judge and admitted into evidence shall become a part of the record and at the discretion of the Administrative Judge may be referred to the court reporter to be appended to the transcript. Agencies should instruct reporters with whom they contract to submit bills to the agency. The Administrative Judge may require the court reporter to submit the original and all copies (usually two) of the transcript to the Administrative Judge, who can provide verification of transcript receipt and the number of pages in the transcript. Contracts with court reporting firms must require delivery of the transcript to the Administrative Judge within ten (10) calendar days or less after the close of the hearing. If the Administrative Judge identifies a problem with timely delivery of the transcript or any other difficulty, s/he should contact the agency directly to resolve the dispute. The agency shall take any steps necessary to ensure that the transcript is provided as expeditiously as possible. Absent a specific memorandum of understanding with the EEOC, the agency may not use employees of that agency to transcribe the proceedings.
As a matter of information, the General Services Administration maintains a list of court reporters available to agencies in the Federal Supply Schedule.
Appendix J of the Management Directive is a list of the addresses of the EEOC district and field offices and their geographic jurisdictions. Hearing requests are sent to the district office having jurisdiction of the agency facility where the complaint arose. In an agency's written acknowledgment of a complaint or an amendment to a complaint, the agency must advise the complainant of the EEOC office and its address where a request for a hearing shall be sent. Where two or more complaints have been consolidated and the EEOC district or field offices identified in the agency's complaint acknowledgment letter differ, the office identified in the last filed complaint will govern the location of the office to which the hearing request shall be made. Should the agency's organizational component where the complaint arose not fall within one of the geographical jurisdictions shown in Appendix J, the agency should contact the following office for guidance:
Equal Employment Opportunity Commission
Office of Federal Operations
P.O. Box 77960
Telephone: (202) 663-4599
TDD: (202) 663-4593
Upon receipt of a hearing request, the Administrative Judge assigned to hear the complaint will determine the site of the hearing. Within his/her discretion, the Administrative Judge is authorized to conduct the hearing in the EEOC district or field office, in an EEOC area or local office, at the agency's organizational component where the complaint arose or at such other location as he/she may determine appropriate. In determining the hearing site, the Administrative Judge may consider factors such as the location of the parties; the location of EEOC district, area, and local offices; the number and location of witnesses; the location of records; travel distances for the Administrative Judge, the parties, and witnesses; travel costs; the availability of sources of transportation; and other factors as may be appropriate.
If the Administrative Judge sets a hearing site that is outside the local commuting area of the agency's organizational component where the complaint arose, the agency must bear all reasonable travel expenses of complainants, their authorized representatives, agency representatives, and all witnesses approved by the Administrative Judge, except that an agency does not have the authority to pay the travel expenses of the complainant or the complainant's witnesses or representatives if they are not federal employees.
Should either party desire that a hearing be held within the jurisdictional area of another EEOC district office, it must submit a request, in writing, to the Administrative Judge assigned to the case in the appropriate EEOC district or field office having jurisdiction over the agency's organizational component where the complaint arose. In its request, the party must set out, in detail, its reasons and justification for the requested change. The Administrative Judge will rule on the request only after the directors of the concerned EEOC district offices, or their designees, have conferred on the matter.
The agency's obligation is limited to those costs that are legally payable in advance by the agency. See Decisions of the Comptroller General, Matter of: Expenses of Outside Applicant/Complainant to Travel to Agency EEO Hearing, File: B-202845, 61 Comp. Gen. 654 (1982). See also Matter of: John Booth--Travel Expenses of Witness -- Agency Responsible, File: B-235845, 69 Comp. Gen. 310 (1990).
Once an Administrative Judge is appointed, the Administrative Judge has full responsibility for the adjudication of the complaint. § 1614.109(a). The agency cannot dismiss a case that has been referred to the EEOC for a hearing. § 1614.107(a).
An Administrative Judge shall determine whether additional documentation is necessary and may request of the appropriate party the production of any additional documentation.
If after reviewing the file, the Administrative Judge determines that the investigation is inadequate due to the agency's failure to complete the investigation within the time limits set forth in § 1614.108(e), or the agency has not cooperated in the discovery process as required by § 1614.109(f)(3), the Administrative Judge may take the following actions:
Before an Administrative Judge may sanction an agency for failing to develop an impartial and appropriate factual record, the Administrative Judge must issue an order to the agency or request the documents, records, comparative data, statistics, or affidavits. § 1614.109(f)(3). Such order or request shall include a notice to show cause to the agency and, in appropriate circumstances, may provide the agency with an opportunity to take such action as the Administrative Judge deems necessary to correct the deficiencies in the record. The Administrative Judge also shall provide the agency with a reasonable period of time within which to take the action that the Administrative Judge has deemed necessary. The order or request further must identify the sanction(s) that the Administrative Judge may impose if the agency fails to comply with it. Only on the failure of the agency to comply with the Administrative Judge's order or request and the notice to show cause may the Administrative Judge impose a sanction or the sanctions identified in the order or request.
Section 1614.108(g) authorizes a complainant to request a hearing before an Administrative Judge where the respondent agency has not completed the investigation within the required time limit and where the complainant has not agreed in writing with the agency to extend the time for completing the investigation.(3) This provision reflects the Commission's intent that complainants be permitted to move their cases forward in the complaint process where an agency has not complied with the regulation by completing a timely investigation. Further, it is the Commission's intent that where a hearing is properly requested and where there has been no investigation or there is an incomplete or inadequate investigation, the record in the case shall be developed under the supervision of the Administrative Judge assigned to the case. The record can be developed through the parties' use of discovery and/or through the Administrative Judge's orders for the production of documents and witnesses.
Section 1614.109(a) provides that upon appointment, the Administrative Judge will assume full responsibility for adjudication of the complaint, including overseeing the development of the record. The Commission intends that the Administrative Judge will take complete control of the case once a hearing is requested. Administrative Judges will preside over any necessary supplementation of the record in the hearing process without resort to remands of complaints to agencies for additional investigations. An Administrative Judge may issue an order, however, directing the agency to complete its investigation within a period of time set forth in the order.
Where an agency has not completed a timely investigation or has prepared an inadequate investigation, the Administrative Judge may issue an order sua sponteor upon request by either party requiring a party to produce documents, records, comparative data, statistics or the attendance of witnesses. Where a party fails without good cause shown to respond fully and in a timely fashion to the Administrative Judge's order and/or the party has not otherwise cooperated in the discovery process, the Administrative Judge may impose sanctions pursuant to § 1614.109(f)(3).(4) Additionally, the Administrative Judge may, as a result of a discovery order issued pursuant to § 1614.109(f)(3)(v), require 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 § 1614.108(e) or has failed to investigate the allegations adequately pursuant to Chapter 6 of this Management Directive. See also Section IV.F of this Chapter.
If either party is requested by the Administrative Judge to produce additional documents, that party shall furnish a copy of those documents to the opposing party at the time they are submitted to the Administrative Judge.
The Administrative Judge may dismiss complaints within his/her jurisdiction pursuant to § 1614.107(a) on his/her own initiative, after notice to the parties, or upon an agency's motion to dismiss a complaint. (See § 1614.109(b) and Chapter 5, Section IV, of this Management Directive.) Before dismissing a complaint, the Administrative Judge must ensure that the claim has not been fragmented inappropriately into more than one complaint. A series of subsequent events or instances involving the same claim should not be treated as separate complaints, but should be added to and treated as part of the first claim. See Chapter 5, Section III of this Management Directive for an extended discussion on fragmentation.
The Administrative Judge has full responsibility for the adjudication of the complaint, which includes, but is not limited to the following:
The Administrative Judge has independent authority under § 1614.109(f) to request the production of information, documents, records, comparative data, statistics, affidavits, or the attendance of witnesses.
The Administrative Judge has the authority to impose sanctions on a party if s/he fails to comply without good cause with orders or requests. In addition, the Administrative Judge may impose sanctions where a party fails to appear or be prepared for a conference (e.g., for status or settlement discussions) or hearing pursuant to an order of the Administrative Judge. Sanctions may be imposed on the agency for failure to produce an approved witness who is a federal employee. Sanctions may be imposed for failure to comply with orders to compel, requests for information, documents, or admissions where the information is solely in the control of that party. Similarly, if a party fails to provide an adequate explanation for the failure to respond fully and in a timely manner to a request and the information is solely in the control of that party, the Administrative Judge may impose sanctions. Sanctions for failing to comply with the orders or requests discussed above include, but are not limited to, the authority to:
(a) draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information;
(b) consider the issues to which the requested information pertains to be established in favor of the opposing party;
(c) exclude other evidence offered by the party failing to produce the requested information;
(d) enter a decision fully or partially in favor of the opposing party; and,
(e) take such other actions as appropriate.(6)
Before holding a hearing, the Administrative Judge may require the complainant, after receipt of an agency motion or otherwise, to declare whether or not s/he is seeking compensatory damages as relief for the discrimination or retaliation alleged in the complaint, and to proffer or produce evidence demonstrating entitlement to compensatory damages. If a complainant fails to proffer or produce such evidence, the Administrative Judge may, in his/her discretion, deem the claim for damages to be waived.
Where the complainant has claimed compensatory damages and where the Administrative Judge determines, on the merits of the complaint, entitlement to compensatory damages because of intentional discrimination or retaliation, the Administrative Judge will calculate the amount of compensatory damages to be awarded by the respondent agency. In complaints where compensatory damages have been claimed and a hearing is held, the Administrative Judge may, in his/her discretion, develop the record on the compensatory damages claim during the hearing on the merits on the complaint or may bifurcate the proceeding and develop the record on the compensatory damage claim after a finding of discrimination.
Administrative Judges have the authority to order, in very limited circumstances, as detailed below, that a complainant undergo a medical examination on motion of the agency. A request by the agency that a complainant undergo a medical examination must notify the complainant, the complainant's representative, and the Administrative Judge, of the proposed time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. All such requests must be approved by the Administrative Judge.
In making a determination of whether to order a medical examination, an Administrative Judge may be guided by the principles and cases arising under Rule 35 of the Federal Rules of Civil Procedure governing the physical and mental examinations of persons. The burden of proof in supporting a request for such an examination requires an affirmative showing that each condition as to which examination is sought is genuinely in controversy and that good cause exists for ordering each particular examination. Such requests must be narrowly tailored to elicit only the evidence necessary to develop the record with regard to the specific issue.
The agency requesting the examination has the burden of proving that the examination is reasonably necessary. For example, merely showing that the complainant has made a claim for compensatory damages is not sufficient to meet the agency's burden of proof. In determining whether such a request is reasonable, the Administrative Judge will consider: whether the complainant has asserted a claim for compensatory damages sufficient to place his/her mental or physical condition in controversy; and whether the request is made for good cause shown; that is, that the examination is reasonably necessary to determine the existence and extent of an asserted injury. The Commission has held that evidence from a health care professional is not a mandatory prerequisite to establishing entitlement to compensatory damages. Sinnott v. Department of Defense, EEOC Appeal No. 01952872 (1996); Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (1996); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (1995). A complainant's own testimony, along with the circumstances of a particular case, may suffice to sustain the complainant's burden in this regard. Therefore, independent medical examinations will not be appropriate in every case in which a claim for compensatory damages is made.
Some factors to be considered in determining whether an agency has shown that a complainant has asserted a claim for damages sufficient to place his/her mental or physical condition in controversy include: 1) the type and extent of mental or physical harm claimed; 2) whether the harm alleged is ongoing or is merely a past harm with no current effects on the complainant; 3) whether the complainant has offered expert testimony concerning the nature and/or extent of the alleged harm, or intends to offer such testimony; and 4) whether the complainant has sufficiently asserted a connection between the asserted harm and the alleged discrimination sufficient to establish a causal relationship between the harm and the alleged discrimination.
Some factors to be considered in determining whether an agency requesting a mental or physical examination has shown good cause for such examination include: 1) the nature and severity of the alleged harm, and the likelihood that the requested examination will elicit relevant evidence as to the existence and/or extent of the alleged harm; 2) whether there is already sufficient evidence in the record as to the nature and extent of the asserted harm; and 3) whether the information sought could be obtained through other less intrusive discovery techniques, such as interrogatories, depositions, or requests for the production of witnesses or documents.
Even where the above criteria may have been satisfied by the agency requesting the examination, the decision to order such examination at the hearing stage is solely within the discretion of the Administrative Judge.
Upon receipt of a request from the agency for a medical examination, the complainant may file a motion for a protective order, stating objections to the request or order. See Section IV.B.3.b of this Chapter. The decision to order such examination at the hearing stage remains solely within the discretion of the Administrative Judge.
Where a party is represented by an attorney, an Administrative Judge is authorized to award a complainant reasonable attorney's fees and costs (including expert witness fees) incurred in the processing of a complaint where the Administrative Judge issues a decision finding discrimination in violation of Title VII and/or the Rehabilitation Act, issues an order sanctioning the agency, or where the award of attorney's fees or costs may otherwise be appropriate and authorized. Any award of attorney's fees or costs shall be paid by the respondent agency. Where the Administrative Judge determines that a complainant is entitled to an award of attorney's fees or costs, the Administrative Judge will calculate the amount of such award in accordance with § 1614.501(e)(2)(ii)(B) and Chapter 11 of this Management Directive.
When the Administrative Judge determines an entitlement to attorney's fees or costs, the complainant's attorney must submit a verified statement of attorney's fees (including expert witness fees) and other costs, as appropriate, to the Administrative Judge within thirty (30) days of receipt of the decision, unless otherwise directed, and must submit a copy of the statement to the agency. A statement of attorney's fees and costs must be accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. The agency may respond to a statement of attorney's fees and costs within thirty (30) days of its receipt. The verified statement, accompanying affidavit and any agency response shall be made a part of the complaint file. The Administrative Judge will issue a decision determining the amount of attorney's fees and costs due within sixty (60) days of receipt of the statement and affidavit.
The Administrative Judge may engage the parties in discussion aimed at reaching a settlement agreement or may allow the parties such time as they may need to discuss settlement. The Administrative Judge further may hold a hearing in abeyance to allow the parties to engage in alternate forms of dispute resolution. (For a more detailed discussion of alternative dispute resolution, see Chapter 3 of this Management Directive.)
Administrative Judges shall issue an order awarding full relief where the agency unilaterally and unconditionally promises in writing to provide the full and complete remedy as defined by the Administrative Judge. To permit him/her to determine the appropriate remedy for the complaint, the Administrative Judge may require the parties to submit statements of full relief, may receive evidence including testimony, and/or require oral argument. After issuing the order and a determination of the appropriate remedy, the Administrative Judge shall return the hearing file to the agency, which shall have forty (40) days to take final action. § 1614.110(a). Once the agency takes final action, the complainant will have thirty days within which to file an appeal. § 1614.402(a). If the agency fails to provide the full and complete remedy as promised, the complainant may seek compliance from the agency and, failing that, file an appeal with the Commission. See § 1614.504(a); see also Miller v. Department of the Treasury, EEOC Request No. 05980345 (July 20, 1998); Perlingiero v. Department of the Navy, EEOC Appeal No. 01941176 (Feb. 24, 1995); Poirrier v. Department of Veterans Affairs, EEOC Appeal No. 01933308 (May 5, 1994).
An Administrative Judge may hold a hearing in abeyance in the event that a party is unable to proceed with the hearing for reasons such as illness, military assignment, or for other good cause shown.
A party who believes that some or all material facts are not in genuine dispute may file a motion in support of this contention with the Administrative Judge at least fifteen (15) days prior to the hearing, or at such earlier time as required by the Administrative Judge. This is similar to summary judgment in court. The Administrative Judge may, in the acknowledgment order, specify a date for filing such a motion and provide for extending that time in certain circumstances. A copy of any such motion shall be served on the opposing party.
The opposing party will have 15 days from the receipt of the statement in which to file any opposition to the statement.
After considering the request and the opposing submission, if any, the Administrative Judge may deny the request, order that discovery be permitted on the facts involved, limit the hearing to the issues remaining in dispute (if any), issue a decision without a hearing, or make such other rulings as are appropriate.
If the Administrative Judge determines that some or all of the material facts are not in genuine dispute, s/he may, after giving notice to the parties and providing them an opportunity to respond within 15 days of receipt of the notice, issue an order limiting the scope of the hearing or issue a decision without conducting a hearing.
At his/her discretion, the Administrative Judge may provide notice requiring the parties to appear and present oral argument or testimony on a motion for summary judgment.
Summary judgment is proper when "material facts are not in genuine dispute." § 1614.109(g). Only a dispute over facts that are truly material to the outcome of the case should preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes over facts that might affect the outcome of the suit under the governing law, and not irrelevant or unnecessary factual disputes, will preclude the entry of summary judgment). For example, when a complainant is unable to set forth facts necessary to establish one essential element of a prima facie case, a dispute over facts necessary to prove another element of the case would not be material to the outcome. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986).
Moreover, a mere recitation that there is a factual dispute is insufficient. The party opposing summary judgment must identify the disputed facts in the record with specificity or demonstrate that there is a dispute by producing affidavits or records that tend to disprove the facts asserted by the moving party. In addition, the non-moving party must explain how the facts in dispute are material under the legal principles applicable to the case. 29 C.F.R. § 1614.109(e)(2); Anderson, 477 U.S. at 322-24; Patton v. U.S. Postal Service, EEOC Request No. 05930055 (July 1, 1993) (summary judgment proper where appellant made only a general pleading that his job performance was good but set forth no specific facts regarding his performance and identified no specific inadequacies in the investigation).
At the conclusion of the hearing stage the Administrative Judge shall send to the parties copies of the record produced at the hearing stage of the process, including the transcript of the hearing, if any, as well as the decision.
The Administrative Judge may, when necessary, release the transcript prior to the issuance of the decision, e.g., when the transcript is needed to prepare a post-hearing brief or to prepare for a hearing on relief.
The Administrative Judge may issue a decision from the bench after the conclusion of the hearing, in lieu of issuing a written decision.
The purpose of discovery is to enable a party to obtain relevant information for preparation of the party's case. Both parties are entitled to reasonable development of evidence on issues relevant to the issues raised in the complaint, but the Administrative Judge may limit the quantity and timing of discovery.
A reasonable amount of official time shall be allowed to prepare requests for discovery and to respond to discovery requests. (See Chapter 6, Section VIII.C, of this Management Directive.)
The discovery instructions that follow are intended to provide a simple method of discovery. They will be interpreted and applied so as to avoid delay and to facilitate adjudication of the case. The parties are expected to initiate and complete needed discovery with a minimum of intervention by the Commission's Administrative Judge. The parties are further expected to use discovery judiciously for its intended purpose only.
The Administrative Judge shall send the parties an acknowledgment order advising the parties that they may commence discovery. It is the Commission's policy that the parties are entitled, pursuant to § 1614.109(b), to the reasonable development of evidence on the issues raised in the complaint.
It is anticipated that discovery will ordinarily involve supplementing the existing record. There may be situations in which the record does not have to be supplemented.
Discovery must be completed by such time ordered by the Administrative Judge. Parties may request to extend the time for discovery beyond the time limit set. The Administrative Judge may modify the time frame for completing discovery either by extending it or by curtailing it as the Administrative Judge may determine. Any request for extension must be made by motion and accompanied with a proposed order and shall state whether the opposing party agrees or objects to the motion or order.
Absent specific authorization from the Administrative Judge, a party may propound no more than one set of interrogatories and a set of interrogatories shall not exceed thirty (30) in number including all discrete subparts.
Generally the party requesting depositions will pay for them. A failure to appear at a properly scheduled deposition may result in the non-appearing party bearing the cost of the missed session. Agencies must make federal employees available for depositions and such depositions shall be taken on official time. The agency may be liable for costs incurred if such persons are not made available on the clock for depositions or other discovery or if such persons fail to appear.
Stipulations are strongly encouraged.
Absent specific authorization from the Administrative Judge, a request for admissions shall not exceed 30 in number including all discrete subparts. This limit does not apply, however, to admissions relating to the authenticity or genuiness of documents.
Absent specific authorization from the Administrative Judge, requests must be specific, identifying the document or types of documents requested. A set of document requests shall not exceed 30 in number including all discrete subparts.
In many instances, discovery should proceed on an informal basis, including unrecorded meetings and conference calls designed to exchange information. For example, if a primary purpose of discovery is to determine the scope and content of a material witness's testimony, it may be sufficient that there be a meeting scheduled with the witness and that the discovery be conducted on an informal basis. If that method proves unsatisfactory, a more formal method of discovery may be used.
When information gathering and hearing preparation takes place outside the scope of formal discovery, agencies may not restrict access to nonmanagement employees who voluntarily cooperate with informal discovery.
Unless the Administrative Judge requires that a party request authorization to commence discovery, parties may begin discovery upon receipt of the Administrative Judge's acknowledgment order.
If the Administrative Judge requires that a party request authorization to commence discovery, the request must state the method(s) and scope of discovery requested and its relevance to the issue(s) in the complaint.
Upon receipt of the Administrative Judge's authorization to begin discovery or acknowledgment order that does not require the parties to seek authorization, the parties must, within twenty (20) calendar days or such period of time ordered by the Administrative Judge, exchange requests for discovery. If a party does not submit a discovery request to opposing party within that period, the Administrative Judge may determine that the party has waived its right to pursue discovery.
The parties must cooperate with each other in honoring requests for relevant, non-repetitive documentary and testimonial evidence. The parties shall not use any form of discovery or discovery scheduling for harassment, unjustified delay, to increase litigation expenses, or any improper purpose. Discovery disputes will be resolved by the Administrative Judge only after the parties have made a good faith effort to resolve the dispute.
(1) Where to address discovery
Requests for discovery should be addressed to the agency representative, complainant or complainant's representative of record, and not to the Administrative Judge, unless requested by the Administrative Judge. Where a party addressed a request for discovery to the Administrative Judge, the Administrative Judge may, at his/her discretion, return the request to the party submitting the discovery request with instructions to serve it on the appropriate party or may forward the request to the appropriate party. 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.
(2) Criteria for requests
The request should be: 1) as specific as possible, 2) reasonably calculated to discover non-repetitive, material evidence and, 3) if not self-evident, the request must indicate the materiality of the documentary or testimonial evidence sought and the manner in which the information sought will elucidate the accepted issues.
Unless otherwise ordered, the opposing party/representative must serve his/her response to the request for discovery within thirty (30) calendar days from the date of service of the request. If service of the request was by mail, the opposing party/representative may add three days to the date that the response is due. A response means:
Voluntary cooperation with discovery requests is encouraged;
Such opposition shall set forth a basis for finding that the request is irrelevant, overburdening, repetitious, or privileged;
Stipulations of fact are favored as a means of resolving discovery issues;
Request for extension of time to comply or to produce a written agreement shall not exceed 15 calendar days.
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.
(1) the discovery is calculated to produce or lead to the production of material evidence that is not repetitious of facts or documents already in the complaint file,
(2) the discovery does not concern privileged or restricted information, and
(3) the discovery is not overly burdensome.
A failure to respond or follow an order to comply with a request for discovery may result in sanctions. See Section III.D, of this Chapter.
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. Accordingly, where a party has not timely requested discovery or has not otherwise timely requested that the Administrative Judge order the opposing party to produce documents, the party's request for documents for the first time at the time of the hearing, or at a pre-hearing conference held just prior to the hearing, will be disallowed unless the Administrative Judge, in his/her discretion, rules otherwise.
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 § 1614.108(e) or has failed to investigate the allegations adequately pursuant to Chapter 6 of this Management Directive.
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 at any time subsequent to the docketing of a complaint for a hearing is subject to sanction. Section 1614.109(e) provides that persons may be excluded from the hearing for contumacious conduct or misbehavior that obstructs the hearing. 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. § 1614.109(e). 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.A.5 below.)
The authority of an Administrative Judge to impose an exclusion under § 1614.109(e) derives from the judicial doctrine of the "inherent powers" of the forum. For example, courts have certain implied powers that are necessary to the exercise of all others. Chambers v. NASCO, Inc., 501 U.S. 32 (1991). "'Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.'" Id. at 43 (quoting Anderson v. Dunn, 6 Wheat. 204, 227 (1821)). "These powers are 'governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Id. (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962)).
Inherent powers must be exercised with restraint and discretion. Id. 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 § 1614.109(e) for misconduct, other sanctions may be imposed for failure to obey orders of an Administrative Judge. Section 1614.109(f)(3) provides that when the complainant, the agency, or its employees fail without good cause shown to respond fully and in timely fashion to an order of an Administrative Judge, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witnesses, the Administrative Judge shall impose sanctions in appropriate circumstances.
Sanctions under § 1614.109(f) may be evidentiary, monetary, or both. 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 attorneys fees and the costs of discovery. See § 1614.109(f)(3).
To lessen the need for resort to exclusion or other sanctions, Administrative Judges may instruct the parties in the initial order and/or at the outset of the hearing to maintain professional conduct and speech. 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 § 1614.109. 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." Black's Law Dictionary 330 (6th ed. 1990). 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.(7) A finding of contumacious conduct or disruptive behavior may be based on a series of disruptive incidents, a pattern of acts, or a single sufficiently obstructive episode.(8) Normally, any pattern should be manifest within a single case. 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. For example, in the first instance of misconduct, the Administrative Judge, in his/her discretion and as part of the sanction, may publicize the sanction to other Administrative Judges or require the sanctioned individual to disclose the sanction to other Administrative Judges. 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. To that end, the Administrative Judge also may ask an individual, on the record, to disclose whether or not s/he ever had previously been sanctioned in any way before the EEOC.
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." Representatives have a special duty to maintain the dignity of the EEO process and to preserve the order and authority of the EEO forum and must act accordingly.
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. If the representative is an attorney, s/he also may be referred to the appropriate bar association for disciplinary action as provided in section C 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.(9) The Administrative Judge may place the information on the record through a statement at the hearing or, if the misconduct occurred in a teleconference or other proceeding without a court reporter, by inclusion in a prehearing conference memorandum or order or through a written statement provided to the individual. 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.(10) There is no right to appeal an exclusion decision, because that decision applies only to the particular hearing in which the misconduct occurred.
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 § 1614.107(g), dismiss the case for failure to cooperate or issue a decision if the record is sufficient to permit adjudication.
If the complainant's representative is excluded, the complainant should be given the option of proceeding without his/her representative. If the agency's representative is excluded, the Administrative Judge must notify the agency of the exclusion. In either case, the Administrative Judge may, in his/her discretion, continue the hearing to allow time for the designation of a new representative or, in appropriate circumstances, terminate the hearing and decide the case based on the record if the record is sufficient to permit adjudication.
The Administrative Judge also may impose an evidentiary sanction against either party as provided in § 1614.109(f)(3). 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. See § 1614.109(f)(3). 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. Section 1614.109(e) provides that the Commission, after notice and an opportunity to be heard, may suspend or disqualify from representing complainants or agencies in future EEOC hearings any representative who refuses to follow the Administrative Judge's orders or otherwise engages in improper conduct. 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 EEOC, at both the hearing and appellate stages.
Before suspension or disqualification from future hearings, the representative must be given:
This is accomplished through a show cause order. The show cause order must describe in detail the incident(s) constituting the grounds for suspension or disqualification,(12) describe the proposed sanction, and give the representative a period of time in which to explain in writing why s/he should not be suspended or disqualified.
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. In all cases, the representative must submit his/her response to the Director of the Office of Federal Operations. The Director or his/her designee will issue a final order, which is not appealable.
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.
Section 1614.109(e) provides that the Administrative Judge or the Commission may refer to the disciplinary committee of the appropriate bar association any attorney who refuses to follow the orders of an Administrative Judge or who otherwise engages in improper conduct. This may be done independently of, or in conjunction with, any proposed or final exclusion, suspension, or disqualification.
Chapter 6 | Table of Content | Chapter 8
1. Section 1614.108(f) specifically provides that the agency has a duty to send the notice within 180 days of the filing of the complaint or, where a complaint has been amended, the earlier of 180 days from the date of the last amendment or 360 days from the filing of the first complaint, whichever is earlier; within a time period set forth in an order from the Commission; or within any period of extension provided under § 1614.108(e).
2. A decision issued within 180 days may include a finding of discrimination and order that the agency provide relief and pay the complainant's attorney's fees. The Administrative Judge then would issue a second decision subsequent to the end of this 180-day period concerning the quantum of relief and attorney's fees. In this situation, the agency's 40-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. § 1614.110(a).
3. Where an agency did not complete an investigation of late-filed amendments to complaints or late-consolidated complaints because the complainant either requested a hearing before the full investigatory period ended or the amendments and consolidation occurred late in the process, sanctions for inadequate records would be inappropriate. 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.
4. The Administrative Judge's order or request to the parties should make clear what sanction(s) or other actions may be imposed for a failure to comply with the order within the time set forth therein. Where an order or request did not put a party on notice that it could be sanctioned for noncompliance or did not put the party on notice of the type of sanction that the Administrative Judge now seeks to impose, the Administrative Judge must issue a notice to show cause to the party for an explanation why the sanction should not be imposed and provide an opportunity to cure the noncompliance before imposing the sanction. 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.
5. The Administrative Judge may apply Rule 615 of the Federal Rules of Evidence to the exclusion of witnesses:
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.
6. See note 4, supra, for a discussion of placing a party on notice that sanctions may be imposed before ordering their imposition.
7. In Bradley v. U.S. Postal Service, EEOC Appeal Nos. 01952244, 01963827 (1996), the Commission rejected the appellant's contention that he was denied a fair hearing because the Administrative Judge had appellant and his representative escorted from the hearing room under guard and terminated the hearing. The Commission found that appellant'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." Misconduct does not have to rise to this level to be subject to sanction. Any one of the types of misconduct noted in Bradley would alone be sufficient.
8. See In re Chaplain, 621 F.2d 1272, 1276 (4th Cir. 1980) (contempt of court may be found based on the cumulative impact of a series of actions, no one of which standing alone would be sufficient: "It is only necessary that a contumacious act be 'a volitional [one] done by one who knows or should reasonably be aware that his conduct is wrongful.'") (citations omitted).
9. For example, the description might state that the party's representative, despite a warning to remain at his seat, "repeatedly rose out of his chair, walked around the hearing room, and pointed his finger close to the witness's face while berating the witness in a loud voice and cutting short the witness's answers, making the following statements to the witness: . . . ."
10. An appellant may, however, raise the issue as part of any appeal of the final order on the case. The exclusion may be included as an issue on appeal when the party asserts it has been deprived the opportunity for a fair hearing.
11. In addition to disqualification under § 1614.109(e) for misconduct, the term "disqualification" is also used when the representation of a complainant or agency would conflict with the official or collateral duties of the representative. Under § 1614.605(c), in that circumstance, the Commission or the agency may, after giving the representative an opportunity to respond, disqualify the representative. In contrast to disqualification for misconduct, a disqualification for conflict of interest under § 1614.605(c) applies only to the particular case. Parties shall disclose and reasonably attempt to avoid all conflicts of interest.
12. The conduct must be described with specificity and detail, as explained in section A. 5 above with respect to exclusion.
This page was last modified on February 24, 2011.
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