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Management Directive 110

Chapter 7
HEARINGS

I. INTRODUCTION

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 29 C.F.R. § 1614.109.[1] An Administrative Judge from the Commission adjudicates claims of discrimination and issues decisions. Unless the agency issues a final order within forty (40) days of receipt of the Administrative Judge's decision in a non-class action pursuant to 29 C.F.R. § 1614.110(a), the Administrative Judge's decision becomes the final action of the agency. A complainant may appeal an agency's final action or dismissal of a complaint. An agency may appeal as provided in 29 C.F.R. § 1614.110(a). 29 C.F.R. §§ 1614.401(a) & (b).

Section 1614.108(f) of 29 C.F.R. 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.[2] Regardless of whether the investigation is complete, the agency's duty to send this notice and the complainant's right to receive it are not dependent on the agency's completion of the investigation.

If the agency does not send the notice required in 29 C.F.R. § 1614.108(f) within the applicable time limits, it must send a notice informing the complainant that it has not yet finished the investigation and providing an estimate as to when the investigation will be completed. See 29 C.F.R. § 1614.108(g). The notice should notify the complainant that they do not have to wait for the investigation to be completed and may request a hearing or file a civil action in an appropriate U.S. District Court. Further, the notice will contain information regarding the hearing process.

A complainant must submit the hearing request directly to the Commission's district or field office having jurisdiction over the geographic area in which the complaint arose, as set forth in Appendix N of this Management Directive, and provide a copy of the request to the agency. See 29 C.F.R. § 1614.108(h). (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 M.) Upon receipt of the request for a hearing, the Commission's district or field office will assign the case to an Administrative Judge who will issue Orders/Notices as appropriate to the case and provide the parties with a Commission Hearings Unit No. or docket number, and if the agency did not receive a copy of the complainant's request for a hearing, will require that the agency forward a copy of the complaint file within fifteen (15) days.

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 Commission's 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 Commission district or field office indicated in the agency's acknowledgment letter. 29 C.F.R. § 1614.108(h). In the case of accepted class complaints, a Commission Administrative Judge will, pursuant to 29 C.F.R. § 1614.204(h), conduct a hearing on the complaint in accordance with 29 C.F.R. §§ 1614.109(a) - (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 29 C.F.R. § 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. 29 C.F.R. § 1614.109(i).[3]

II. THE ROLE OF THE AGENCY AT THE HEARING STAGE

A. Forward Complaint File to the Commission

Within fifteen (15) days of its receipt of a copy of the complainant's request for a hearing sent to a Commission district or field office, 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 and his/her representative, if it has not previously done so. The complaint file sent to the complainant or his/her representative must be identical to the complaint file sent to the Commission's district or field office. See Chapter 6, Section VIII of this directive for more information regarding the complaint file. The complainant and his/her representative shall be given the option of receiving these documents in paper or digital format.

B. Hearing Room and Production of Witnesses

The agency is responsible for arranging for an appropriately sized 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. This includes making space available with appropriate virtual conferencing equipment for hearings and/or other proceedings as required by the Administrative Judge. The agency is responsible for ensuring the appearance and travel arrangements to the hearing site of approved witnesses who are federal employees. Note: the Administrative Judge may order the agency to provide any reasonable accommodations for parties, witnesses, or representatives appearing before the Commission as well as any required foreign language interpreters.

C. Hearings Are Closed to the Public

Access to the hearing room and the record of the hearing shall be restricted in accordance with the Commission's regulation. See 29 C.F.R. § 1614.109(e).

D. Verbatim Hearing Transcripts and Court Reporters

The agency shall arrange and pay for a verbatim transcript (provided in electronic format for the Administrative Judge and the complainant, unless otherwise requested) of the hearing proceedings pursuant to 29 C.F.R. § 1614.109(h) regardless of whether the Administrative Judge issues a decision. All exhibits submitted to the Administrative Judge and admitted into evidence shall become a part of the complaint file 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 a customary time frame determined by the court reporting firm within the jurisdiction, not to exceed twenty-one (21) days unless the Administrative Judge requires delivery of the transcript by a certain date 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 Commission, 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 GSA eLibrary.

E. The Site of the Hearing

Appendix N of the Management Directive is a list of the addresses of the Commission district and field offices, their geographic jurisdictions, and where federal employees and applicants should send hearing requests. Hearing requests are sent to the district office having jurisdiction over 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 Commission office and its address where a request for a hearing shall be sent. Where two or more complaints have been consolidated and the Commission 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 N, the agency should contact the following office for guidance:

Equal Employment Opportunity Commission
Office of Field Programs
Attention: Hearings Coordinator
131 M Street, NE.
Washington, DC 20507

Email at: info@eeoc.gov

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 Commission district or field office, in a Commission area or local office, at the agency's organizational component where the complaint arose or at such other location or by virtual conference as s/he may determine appropriate within a local commuting distance from the agency's component unless otherwise agreed to by the parties. In determining the hearing site, the Administrative Judge should consider factors such as the location of the parties; the location of the Commission 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 including the availability of appropriate virtual conferencing equipment.

Similarly, where an Administrative Judge is considering whether the hearing should be held by video conferencing, there are a number of factors that should be considered before electing to proceed. These factors include the availability and proximity to the participants of the video-conferencing facilities;[4] the adequacy of the available video-conferencing facilities, including any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties and the Administrative Judge; the number of expected participants; and the objections of the parties, if any. Should a party object to conducting the hearing by video conference, the Administrative Judge will document for the record both the nature of the objection and his/her ruling on the objection, including the reasons therefore.[5] See Allen v. U.S. Postal Service, EEOC Appeal No. 01A51259 (Aug. 21, 2006).

If the Administrative Judge sets a hearing by video conference or 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 video-conferencing costs if any, or 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.

F. Request for Change in Venue

Should either party desire that a hearing be held within the jurisdictional area of another Commission district office, it must submit a request, in writing, to the other party and to the Administrative Judge assigned to the case in the appropriate Commission 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 other party may have an opportunity to respond to the change in venue. The Administrative Judge will rule on the request only after the directors of the concerned Commission district offices or their designees have conferred on the matter.

G. Agency Costs

The agency's obligation is limited to those costs that are legally payable in advance by the agency. See Expenses of Outside Applicant/Complainant to Travel to Agency EEO Hearing, File: B-202845, 61 Comp. Gen. 654 (1982). See also John Booth--Travel Expenses of Witness -- Agency Responsible, File: B-235845, 69 Comp. Gen. 310 (1990).

III. THE ROLE OF THE ADMINISTRATIVE JUDGE

Once an Administrative Judge is appointed, the Administrative Judge has full responsibility for the adjudication of the complaint. 29 C.F.R. § 1614.109(a). The agency cannot dismiss a case that has been referred to the Commission for a hearing. 29 C.F.R. § 1614.107(a).

A. Administrative Judge's Review of the Record

An Administrative Judge shall review the record developed by the agency and determine whether additional documentation is necessary. If a determination is made that additional documentation is necessary, the Administrative Judge may order the appropriate party to produce the 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 29 C.F.R. § 1614.108(e), or the agency has not cooperated in the discovery process as required by 29 C.F.R. § 1614.109(f)(3), the Administrative Judge may take the following actions:

  1. Subject the agency to adverse inference findings in favor of the complainant;
  2. Consider the issues to which the requested information or testimony pertains to be favorable to the complainant;
  3. Exclude other evidence offered by the agency;
  4. Permit the complainant to obtain a summary disposition in his/her favor (that is, default judgment) on some or all of the issues without a hearing; or
  5. Take other action deemed appropriate, including, but not limited to, requiring the agency to pay any costs incurred by the complainant in taking depositions or in conducting any other form of discovery.

The Commission has the authority to issue sanctions in the administrative hearing process because it was granted, through statute, the power to issue such rules and regulations that it deems necessary to enforce the prohibition on employment discrimination. See Waller v. Dep't. of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), request for reconsideration denied, EEOC Request No. 0520070689 (Feb. 26, 2009). In this respect, the Commission has determined "that delegating to its Administrative Judges the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy which effectuates the policies of the Commission." Id.

However, before an Administrative Judge may sanction an agency for failing to develop an impartial and appropriate factual record or for not cooperating in the discovery process, the Administrative Judge must issue an order to the agency or request the documents, records, comparative data, statistics, or affidavits. 29 C.F.R. § 1614.109(f)(3). Such order or request shall make clear that sanctions may be imposed and the type of sanction that could be imposed for failure to comply with the order unless the agency can show good cause for that failure. See Rountree v. Dep't. of the Treasury, Appeal No. 07A00015 (July 17, 2001). In appropriate circumstances, the order or request may provide the agency with an opportunity to take such action as the Administrative Judge deems necessary to correct the deficiencies in the record within a specified reasonable period of time. 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.

B. Developing the Record in Complaints with Inadequate Records

Section 1614.108(h) of 29 C.F.R. 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.[6] 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) of 29 C.F.R. 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. If an Administrative Judge determines that there is an incomplete or inadequate investigation, s/he may, however, issue an order directing the agency to complete its investigation within a specified period of time set forth in the order or directing that the agency show cause for its failure to complete the investigation within the 180-day period.

Where an agency has not completed a timely investigation or has prepared an inadequate investigation, the Administrative Judge may issue an order on his/her own initiative or upon request by either party requiring a party to produce documents, records, comparative data, statistics, or the attendance of witnesses. Such order or request shall make clear that sanctions may be imposed and the type of sanction that could be imposed for failure to comply with the order within the specified time set forth in the order without good cause shown.[7] See, for example, Rountree v. Dep't. of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). Where the agency or complainant 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 29 C.F.R. § 1614.109(f)(3).[8] A showing that the noncomplying party acted in bad faith is not required. See Kramer v. Dep't. of Justice, EEO Appeal No. 07A10108 (September 11, 2003), request for reconsideration denied, EEOC Request No. 05AA40050 (Dec. 8, 2003); Cornell v. Dep't. of Veterans Affairs, EEOC Appeal No. 01974476 (Nov. 24, 1998). Additionally, the Administrative Judge may, as a result of a discovery order issued pursuant to 29 C.F.R. § 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 29 C.F.R. § 1614.108(e) or has failed to investigate the allegations adequately pursuant to Chapter 6 of this Management Directive.[9] See also Section IV.F of this Chapter.

If either party is requested by the Administrative Judge to produce additional documents, that party shall also furnish a copy of those documents to the opposing party at the time they are submitted to the Administrative Judge.

C. Dismissal of Complaint by Administrative Judge

The Administrative Judge may dismiss complaints within his/her jurisdiction pursuant to 29 C.F.R. § 1614.107(a) on his/her own initiative, after notice to the parties, or upon an agency's motion to dismiss a complaint. (See 29 C.F.R. § 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.

D. Administrative Judge's Authority

The Administrative Judge has full responsibility for the adjudication of the complaint, which includes, but is not limited to, the following:

  1. Issue decisions on complaints.
  2. Administer oaths.
  3. Regulate the conduct of hearings.
  4. Limit the number of witnesses so as to exclude irrelevant and repetitious evidence.
  5. Order discovery or the production of documents and witnesses by serving orders on both parties.

    The Administrative Judge has independent authority under 29 C.F.R. § 1614.109(f) to order the production of information, documents, records, comparative data, statistics, affidavits, or the attendance of witnesses.

  6. Issue protective orders not to disclose information.
  7. Exclude any person who is disruptive from the hearing or who is a witness so that s/he cannot hear the testimony of other witnesses.[10]
  8. Issue summary judgment (decisions without a hearing) if there are no genuine issues of material fact in dispute.
  9. Limit the hearing to the issues in dispute.
  10. Impose appropriate sanctions on parties who fail to comply with orders or requests.

    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. See 29 C.F.R. § 1614.109(f)(3). In addition, the Administrative Judge may impose sanctions where a party fails to appear or be prepared for a conference (for example, for status or settlement discussions) or hearing pursuant to an order of the Administrative Judge.[11] Sanctions may be imposed on the agency for failure to produce an approved witness who is a federal employee.[12] 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.[13] 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.[14] Sanctions for failing to comply with the orders or requests discussed above include, but are not limited to, the authority to:

    1. (a) draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information;
    2. (b) consider the issues to which the requested information pertains to be established in favor of the opposing party;
    3. (c) exclude other evidence offered by the party failing to produce the requested information;
    4. (d) enter a decision fully or partially in favor of the opposing party; and
    5. (e) take such other actions as appropriate.[15]
  11. Calculate compensatory damage awards.

    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 of the complaint or may bifurcate the proceeding and develop the record on the compensatory damages claim after a finding of discrimination.

  12. Order a medical examination.

    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. The Administrative Judge must approve all such requests.

    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. Dep't. of Defense, EEOC Appeal No. 01952872 (September 19, 1996); Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (1996); Carpenter v. Dep't. of Agriculture, EEOC Appeal No. 01945652 (July 17, 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. See "Requests for Private Information Should Be Limited" at Section IV.B.4 in this Chapter of this Management Directive for more information.

    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.D.2.b of this Chapter. The decision to order such examination at the hearing stage remains solely within the discretion of the Administrative Judge.

  13. Calculate and award the amount of attorney's fees or costs.

    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, the Administrative Judge 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 29 C.F.R. § 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.

  14. Engage the parties or encourage the parties to engage in settlement discussions.

    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.)

  15. Issue an order determining full relief.

    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. 29 C.F.R. § 1614.110(a). Once the agency takes final action, the complainant will have thirty days within which to file an appeal. 29 C.F.R. § 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 29 C.F.R. § 1614.504(a); see also Miller v. Dep't. of the Treasury, EEOC Request No. 05980345 (July 20, 1998); Perlingiero v. Dep't. of the Navy, EEOC Appeal No. 01941176 (Feb. 24, 1995); Poirrier v. Dep't. of Veterans Affairs, EEOC Appeal No. 01933308 (May 5, 1994).

  16. Hold a hearing in abeyance.

    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 other good cause shown.

E. Summary Judgment (Decisions without a Hearing)

  1. On Motion of a Party

    A party who believes that some or all material facts are not in genuine dispute may file a motion for summary judgment with the Administrative Judge at least fifteen (15) days prior to the hearing, or at such earlier time as required by the Administrative Judge. 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.

  2. On Administrative Judge's Determination

    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 summary judgment decision without conducting a hearing.

  3. Oral Argument or Testimony on Summary Judgment Motion

    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.

  4. Legal Standard for the Use of Summary Judgment

    Summary judgment is proper when "material facts are not in genuine dispute." 29 C.F.R. § 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, 322-323 (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(g)(2); Celotex, 477 U.S. at 322-324; Patton v. U.S. Postal Service, EEOC Request No. 05930055 (July 1, 1993) (summary judgment proper where complainant 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).

F. Transmittal of the Decision and Hearing Record

At the conclusion of the hearing stage the Administrative Judge shall send to the parties (the agency representative, the agency EEO Director or EEO Office, the complainant, and the complainant's representative) 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, for example, 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.

IV. DISCOVERY

A. Introduction

  1. General

    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 raised in the complaint, and 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 VII.C of this Management Directive.)

  2. Avoidance of Delay

    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.

B. Right to Seek Discovery

  1. Notice of Right to Seek Discovery

    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 29 C.F.R. § 1614.109(b), to the reasonable development of evidence on the issues raised in the complaint.

  2. Discovery Is Designed to Supplement the Record

    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.

  3. Discovery Time Frames Will Be Strictly Regarded

    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. To be considered, any request for extension must be made prior to the expiration of the time limit by motion and accompanied with a proposed order and shall state whether the opposing party agrees or objects to the motion or order.

  4. Requests for Private Information Should Be Limited

    Agency requests for the medical records of complainants should only occur to establish or challenge disability status or the right to reasonable accommodation in Rehabilitation Act cases, or when a complainant is asserting a claim for compensatory damages and has sought medical treatment for one or more stress-related conditions. In such instances, agency requests for medical records shall be narrowly tailored to the condition(s) and temporal scope at issue. As discussed in detail in Chapter 11, Section VII, complainants are not required to prove compensatory damages through medical records or other expert evidence. See Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).

    Where a complainant is pro se, agencies must request the Administrative Judge's prior permission before making requests for medical information, and the Administrative Judge shall advise the parties of this provision at the initial status conference. The Administrative Judge shall also explain that a complainant should contact the Administrative Judge to request a protective order if the complainant believes agency counsel is seeking overly broad or intrusive medical records through discovery requests.

    Similarly, agency requests for wage information should only occur when the complainant is making a back pay claim and has received compensation for subsequent employment. Agencies are not authorized and must request prior permission from theAdministrative Judge before making requests for production of a complainant's tax records except with respect to W-2 (earned income) and Schedule C (profit or loss) documents.

C. Methods of Discovery

  1. Evidence may be developed using a variety of methods, including:
    1. Interrogatories

      Absent specific authorization from the Administrative Judge, a party may submit no more than one set of interrogatories and a set of interrogatories shall not exceed thirty (30) in number including all discrete subparts.

    2. Depositions

      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.

    3. Stipulations

      Stipulations are strongly encouraged.

    4. Requests for Admissions

      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 genuineness of documents.

    5. Requests for the Production 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.

  2. Where possible, more informal methods of discovery should be employed

    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 non-management employees who voluntarily cooperate with informal discovery.

    1. The parties may agree that a witness be made available for questioning without the production of a transcript or tape recording where the purpose is to discover the availability of other evidence, either documentary or testimonial.
    2. The parties may agree to the questioning of witnesses using a tape-recording device, provided that any such tape will not be accepted in evidence without authentication. Such authentication can be presumed where the opposing party is provided a copy of the tape at the close of the discovery session and it is identical to the tape proffered in evidence.

D. Discovery Procedures

  1. Commencing Discovery
    1. Requests for authorization to commence

      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.

    2. Exchange of requests

      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 initial requests for discovery. If a party does not submit an initial 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, for unjustified delay, to increase litigation expenses, or for any improper purpose. The Administrative Judge will resolve discovery disputes only after the parties have made a good faith effort to resolve the dispute.

      1. (1) Where to address discovery

        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 addresses 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. 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.

      2. (2) Criteria for requests

        The request should be: 1) as specific as possible and 2) reasonably calculated to discover non-repetitive, material evidence.

  2. Response to Discovery Request

    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 five days to the date that the response is due. A response means:

    1. Compliance with the request - voluntary cooperation with discovery requests is encouraged;
    2. Written opposition to the request/motion for a protective order - such opposition shall set forth a basis for finding that the request is irrelevant, overburdening, repetitious, or privileged;
    3. Written agreement or stipulation obviating the request - stipulations of fact are favored as a means of resolving discovery issues;
    4. Request for extension of time - extension of time to comply or to produce a written agreement shall not exceed 15 calendar days.
  3. Failure to Respond to Request for Discovery
    1. Failure to fully respond to a request for discovery within 30 calendar days of receipt of the request, or as otherwise ordered by the Administrative Judge, shall form the basis for a motion to compel discovery, provided the parties have made a good faith effort to resolve the dispute. Parties engaging in good faith settlement efforts may request an extension from the Administrative Judge.
    2. A motion to compel must be filed within ten (10) calendar days after the expiration date for responding to a request for discovery, or as otherwise ordered by the Administrative Judge. When filing a motion, the moving party must certify that s/he conferred with the opposing party, or made a good faith effort to do so, to attempt to resolve the discovery dispute. See Fed. R. Civ. P. 37(a)(1); Apex Oil Co. v. Belcher Co., 855 F.2d 1009, 1020 (2d Cir. 1988) (failure to confer in good faith over discovery disputes multiplied the proceedings and justified sanctions).
    3. A motion to compel compliance with a request for discovery must be addressed to the Administrative Judge and the moving party must certify that a copy was served on the opposing party.
    4. Any statement in opposition to the motion must be filed within ten (10) calendar days of service of the motion and the responding party must certify that a copy was served on the moving party.
    5. A party's failure to raise an objection to a discovery request within the time period to respond to it may be determined by the Administrative Judge to be a waiver of that party's ability to object to the request at a later date.
  4. Administrative Judges Will Rule Expeditiously on Discovery Issues

    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.

  5. Administrative Judge's Orders to Comply
    1. In considering a motion to compel compliance, the Administrative Judge will consider whether the following factors apply:
      1. (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. (2) the discovery does not concern privileged or restricted information, and
      3. (3) the discovery is not overly burdensome.
    2. Where a motion to compel discovery is approved, in whole or in part, the Administrative Judge shall issue a written order to comply with the request. The parties shall have 15 calendar days or such other time period ordered by the Administrative Judge to comply with a discovery order.
  6. Failure to Respond or Comply with Administrative Judge's Order May Result in Sanctions

    A failure to respond or follow an order to comply with a request for discovery may result in sanctions. See Section III.D.10 of this Chapter.

E. Failure to Request Discovery Implies Waiver of Subsequent Requests for Documents

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.

F. Cost of Discovery

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.F.R. § 1614.108(e) or has failed to investigate the allegations adequately pursuant to Chapter 6 of this Management Directive.

V. EXCLUSION AND DISQUALIFICATION

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.A.3 of this Chapter) at any time subsequent to the docketing of a complaint for a hearing is subject to sanction. Section 1614.109(e) of 29 C.F.R. 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.

A. Exclusion from a Hearing

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. See 29 C.F.R. § 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.B below.)

The authority of an Administrative Judge to impose an exclusion under 29 C.F.R. § 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, 19 U.S. 224 (Wheat.) 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.

  1. Relationship to other sanctions

    In addition to exclusion under 29 C.F.R. § 1614.109(e) for misconduct, other sanctions may be imposed for failure to obey orders of an Administrative Judge. Section 1614.109(f)(3) of 29 C.F.R. 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 29 C.F.R. § 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 attorney's fees and the costs of discovery. See 29 C.F.R. § 1614.109(f)(3).

  2. Preventive measures

    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 29 C.F.R. § 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.

  3. General standard for exclusion

    A person's conduct is contumacious when it is "willfully stubborn and disobedient." Black's Law Dictionary (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.[16] 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.[17] 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 Commission.

  4. Standard for exclusion of representative

    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.

  5. Procedure for exclusion

    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.[18] 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. 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.F.R. §§ 1614.109(b) and 1614.107(a)(7), dismiss the case for failure to cooperate or issue a decision if the record is sufficient to permit adjudication. 29 C.F.R. § 1614.109(g).

    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 29 C.F.R. § 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 29 C.F.R. § 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.

B. Disqualification of a Representative from Future Hearings

  1. Standard for suspension and disqualification[19]

    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) of 29 C.F.R. provides that the Commission, after notice and an opportunity to be heard, may suspend or disqualify from representing complainants or agencies in future Commission 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 Commission, at both the hearing and appellate stages.

  2. Procedure for suspension and disqualification

    Before suspension or disqualification from future hearings, the representative must be given:

    1. notice of the specific conduct that is the basis for the proposed disqualification;
    2. notice of the proposed sanction; and
    3. the opportunity to be heard.

    A show cause order accomplishes this notice. The show cause order must describe in detail the incident(s) constituting the grounds for suspension or disqualification,[20] 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.

C. Referral of Attorney Representatives to Bar Association

Section 1614.109(e) of 29 C.F.R. 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.


[1] Additional information regarding hearings and the hearing process can be found in the U.S. Equal Opportunity Commission's Handbook for Administrative Judges, July 1, 2002.

[2] Section 1614.108(f) of 29 C.F.R. 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 29 C.F.R. § 1614.108(e).

[3] A decision issued within 180 days may include a finding of discrimination, an 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. 29 C.F.R. § 1614.110(a).

[4] "Proximity" in this instance refers to whether the facility is within reasonable commuting distance for the hearing participants. 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. U.S. Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006) (telephone hearing inappropriate where, inter alia, all participants including the Administrative Judge were present in same city on hearing date).

[5] In this regard, the Commission contemplates that the Administrative Judge will provide the parties advance notice of his/her intention to proceed by video conference, allowing opportunity for the parties to object prior to the time the hearing is convened. 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. See Louthen, EEOC Appeal No. 01A44521.

[6] 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.

[7] Where the Administrative Judge's order or request does not put a party on notice that it could be sanctioned for noncompliance or does not put the party on notice of the type of sanction that the Administrative Judge intends to impose, the Administrative Judge must issue a separate notice to show cause to the party for an explanation as to 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.

[8] See for example, Johnson v. Dep't. of the Air Force, EEOC Appeal No. 0120090115 (May 6, 2010), request for reconsideration denied, EEOC Request 0520100394 (July 30, 2010)(OFO affirmed Administrative Judge's dismissal of complainant's request for a hearing as a sanction for the failure to respond to discovery requests); Cox v. Social Security Administration, EEOC Appeal No. 0720050055 (Dec. 24, 2009)(OFO affirmed Administrative Judge's default judgment against the agency based upon the Administrative Judge's finding that the agency failed to: adequately develop the factual record prior to hearing; respond to the complainant's initial request for admissions and subsequent written discovery requests; comply with the Administrative Judge's Order to Produce witnesses for depositions and timely respond to the Administrative Judge's Order to Show Cause why a default judgment should not be entered against the agency).

[9] See for example, Waller v. Dep't. of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), (finding that Administrative Judges may award attorney's fees and costs as a sanction against federal agencies for the violation of an Administrative Judge's Order and that awarding attorney's fees and costs as a sanction ensures the integrity and efficiency of the administrative process).

[10] 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.

[11] See for example, Council v. Dep't. of Veterans Affairs, EEOC Appeal No. 0120080321 (Apr. 9, 2010)(OFO affirmed the Administrative Judge's dismissal of complainant's request for a hearing as a sanction for her failure to prosecute her case when she failed to timely submit a previously ordered Pre-Hearing Statement or otherwise proceed with her complaint).

[12] See also LeBlanc v. U.S. Postal Service, EEOC Appeal No. 01981419 (May 5, 1999)(upholding sanctions against an agency for its failure to even attempt to produce a former employee for hearing).

[13] See for example, Johnson v. Dep't. of the Air Force, EEOC Appeal No. 0120090115 (May 6, 2010) (OFO affirmed Administrative Judge's dismissal of complainant's request for a hearing as a sanction for the failure to respond to discovery requests).

[14] See for example, Johnson, (OFO upheld the Administrative Judge's dismissal of complainant's hearing request, stating that when the complainant responded to the Administrative Judge's order to show cause, he did not explain his failure to respond to discovery as he was ordered to do, but instead argued the merits of his case).

[15] See Section III.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. Dep't. of Veterans Affairs, EEOC Appeal No. 0120080321 (Apr. 9, 2010) in which OFO upheld the Administrative Judge's dismissal of the complainant's hearing request even when an order to show cause had not been issued, pointing out that when the Administrative Judge issued the Acknowledgement and Order it advised the parties that failure to follow Orders may result in sanctions pursuant to 29 C.F.R. 1614.109(f)(3).

[16] In Bradley v. U.S. Postal Service, EEOC Appeal Nos. 01952244, 01963827 (September 18, 1996), the Commission rejected the complainant's contention that he was denied a fair hearing because the Administrative Judge had complainant and his representative escorted from the hearing room under guard and terminated the hearing. 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." 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.

[17] 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).

[18] 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: . . . ."

[19] In addition to disqualification under 29 C.F.R. § 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 29 C.F.R. § 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 29 C.F.R. § 1614.605(c) applies only to the particular case. Parties shall disclose and reasonably attempt to avoid all conflicts of interest.

[20] The conduct must be described with specificity and detail, as explained in Section A. 5 above with respect to exclusion.