EEOC Hearing for Federal Employment Discrimination Cases
To request EEOC hearing, go to www.EEOC.gov and register first. (Hearing is available for federal employees or applicants only)
Outline of the Hearing Process:
The following is a typical hearing process. Some steps may be skipped depending on the judge's ruling and/or Agency's or Complainant's motions/responses, settlement negotiations, and other circumstances peculiar to the case. More detailed explanations are provided below after the following summary.
(If you did not receive the Report of Investigation (ROI) from the Agency when you received Scheduling Order from EEOC, you may consider filing a Motion for a Default Judgment Against the Agency for Failure to Produce ROI.)
➤ Summary of the EEOC Hearing Process
Request an EEOC hearing. (Click for EEOC hearing request form. For Designation of Representative form.)
Order issued from the EEOC to the Agency (copied to the Complainant) to produce the Investigation File (IF), including the Report of the Investigation (ROI), within 15 days. Agency’s EEO office will upload the ROI on to the EEOC portal.
The Report of Investigation (ROI) contains a) the investigator’s summary, b) affidavits, 3) supporting documents.
The investigator’s summary is important, as it is consulted by Administrative Judge (AJ) and Agency attorney. You should review it as well.
The investigator’s summary is not evidence. Do not cite it as your evidence. Cite instead affidavits or documents in the ROI by bates stamped page numbers (at the bottom center of each page).
Even though the investigator’s summary is usually skewed in favor of Agency (the payer of the investigator), it will likely determine AJ’s and most likely Agency attorney’s initial impression of the case.
Thus, Complainant should use the investigator’s summary in order to rebut the skewed presentation of the material facts. Focus on Agency’s defense and rebut the position Agency is taking. You cannot win a battle if you don’t know the opponent’s positions.
Acknowledgment and Order (sample) is issued by the assigned administrative judge. This Order is one of the most important documents you will receive from EEOC administrative judge (AJ), as it contains important deadlines governing the entire hearing process. Read the Order carefully and observe the deadlines specified therein.
With Acknowledgment Order, you may also receive Scheduling Order, scheduling Initial Conference.
Initial Conference with AJ and Agency attorney is important, as it sets the issues and bases to be adjudicated by the AJ, and the case management schedule. The following will likely happen at the Initial Conference:
AJ will ask: “Did parties exchange settlement terms?”
Exchanging settlement terms is usually required by Acknowledgment Order and/or Scheduling Order—to take place prior to Initial Conference.
You need to email Agency attorney with specific terms of settlement. Usually Agency wants a global settlement, if it wants to settle. “Global” means any and all pending cases filed or could be filed against Agency.
Usually Agency attorneys do not respond to your settlement demands you sent via email. That is fine. You just report that to AJ when ask about the settlement at Initial Conference.
AJ will read off the list of accepted issues and bases/allegations and will ask: “Is this list accurate?” AJ may also ask: “Does Complainant intend to file amendment to the Complaint?”
The list of accepted claims, or that of partial acceptance and partial dismissal of claims, is found in the Report of Investigation (ROI)—within the first 100 pages. This document is the most important in the ROI. If your allegation/claim/act of harm is not listed there or dismissed, AJ will have no interest in that allegation, as it is not pending before him or her for adjudication.
AJ will ask: “Do you need discovery?” “Why do you need discovery?” “Do parties intend to conduct depositions?”
You must be able to articulate specific reasons why you need discovery, such as:
There is not enough data in the ROI about the similarly situated individuals such as
Records on previous disciplinary actions issued by the same supervisor against my co-workers,
Annual performance ratings issued by the same supervisor on my co-worker, or
Records of other job applicants and their rankings by the referring official or by the interview panelists, etc.
See Store for samples of discovery requests for purchase.
AJ will ask parties to pull out the calendar and will set a series of deadlines for the following:
Discovery initiation, discovery response, discovery ending dates.
Motion for summary judgment (MSJ), response to MSJ, reply to response to MSJ.
Usually the subsequent deadlines for pre-hearing submission, pre-hearing conference, and hearing are not scheduled at the initial conference.
This is because most cases will be dismissed by summary judgment without hearing.
EEOC AJ’s don’t like to hold hearings.
Because hearings are a lot of work for all involved.
Initial Conference will end with AJ once again encouraging parties to settle by utilizing EEOC’s mediation program.
Discovery by both Agency and Complainant must be initiated within the deadline set forth by AJ during Initial Conference. If you missed the discovery initiation due date (“Discovery must begin by such and such date…”), you forfeited the right to discover. Agency has no obligation to respond to your untimely discovery request.
Discovery request consist of the following three components: a) Interrogatories, b) Request for Production of Documents, and c) Request for Admissions.
AJ will set a limit to how many interrogatories, production requests, and admission requests are allowed: usually 15 to 30 items on each category. (Federal District Court allows much more items for each category of discovery requests.)
Interrogatories request for explanations and articulation of reasons as to why Agency’s decision maker took such and such actions (termination, suspension, rating, bonus, denied leave, denied accommodation, etc.)
You cannot request Agency to produce documents in the interrogatory section.
It is good to request Agency to explain in an interrogatory any and all denials Agency made in response to each and every admission request written below.
Request for Production of Documents (Production Requests, for short) requests for copies of record showing the reasons as to why Agency’s decision maker took such and such actions at issue in the case.
You cannot request Agency to explain why such and such event happened or did not happen in this section of discovery.
Make sure that you request copies of records showing any and all terminations (suspension, ratings, etc. in question) and reasons thereof issued by the same manager in the last 5 years.
It is good to request Agency to produce in a Production Request copies of any and all records in support of any and all denials Agency made in response to each and every Admission Request written below.
Request for Admissions requests Agency to either admit or deny such and such propositions that Complainant laid out in his or her Complaint. All accepted claims should be reproduced in this section of discovery to get Agency to either admit or deny each. It is good to put in this section any basic facts that serves as a pivotal point in the case. If there is room, you may want to put the basic employment data for Agency to admit.
If facts listed in the Request for Admissions are admitted by Agency, they can be proposed later as stipulations. Stipulated facts are ones that are admitted into the record as true, as both parties agree to it. Thus, no examination on them is necessary during the hearing.
Go to Store for samples of discovery requests for purchase.
Response to the discovery requests are usually due to the other party within 30 days of receipt of the requests. Both discovery request and response to discovery request should not be sent to AJ, who wants nothing to do with discovery—unless and until motion to compel is filed. See below on Motion to Compel.
Deposition: Agency attorney may depose you. You can depose Agency decision makers and witnesses, if you are willing to pay for the costly transcripts that could easily run over a thousand dollars. Deposition without purchasing the transcripts is useless, as you cannot present the testimonies to AJ as evidence or exhibit unless they are reduced to written texts with page and line numbers.
Some state laws require that the deposing party provide a free copy to the deposed of his or her deposition testimony. Check your state laws or consult your state’s bar association.
Motion to dismiss or for summary judgment (MSJ) is filed by Agency in most cases.
No summary judgment will likely be granted in favor of Complainant, as Complainant has the burden of proof in discrimination cases.
Motion for Summary Judgment (MSJ) must be responded to. If not, it will be granted automatically for lack of response.
Most Complainants nowadays don’t see the light of day at the hearing, as their cases are dismissed by summary judgments. That seems to be the current norm.
Scheduling Order is issued to set forth deadlines for rehearing submission, prehearing conference, and for hearing.
Prehearing Submission is very important. It sets the rules of the game for the hearing.
Prehearing submission should contain the following usually (as specified in Acknowledgment Order, Scheduling Order, or in Conference Summary Order): (a) Statement on Issues and Bases, (b) Statement of Material Facts to be proven at the hearing, (c) Stipulations, (d) List of proposed witnesses (no more than 10 witnesses, usually), (e) List of exhibits, (f) List of damage claims.
Go to Store for samples of preheating submission/prehearing report for purchase.
Each exhibit must be marked with exhibit number at the bottom right corner. Exhibits should not duplicate documents already contained in the Report of Investigation (ROI).
ROI in its entirety is always admitted into hearing record. (All the more reasons to submit your evidence to the EEO investigator—whether requested or not.)
A complete document (i.e., from the first page to the last) must be submitted as an exhibit. For example, if an email string has 8 emails, the entire email string should be submitted as one PDF document and as an exhibit. If an email has an attachment, the email and the attachment should be combined as one PDF and submitted as an exhibit. If you want to submit a policy as an exhibit, you should not submit the entire 30 or more pages of the policy document. Only submit the following: the cover page, table of contents, and the relevant pages — combined as one document and submit as an exhibit.
No documents already contained in the ROI should be presented as exhibits in the prehearing report, as ROI in its entirety is admitted as hearing record.
Witnesses must be listed with full name, title, contact information, and (most importantly) what each can attest to.
Don’t list anyone who can only say: “I saw how Complainant was discriminated against,” or “how hostile the work environment was,” etc. Why should AJ rely on that witness’ statement, when it is his or her job to determine whether or not “discrimination” or “harassment” had occurred? Only an AJ can conclude: “Based on the foregoing, I determined that discrimination occurred based on Complainant’s race, sex, disability, etc., in violation of Title VII Civil Rights Act of 1964 or in violation of Rehabilitation Act ….” Note that the word “discrimination” is AJ’s conclusion based on his or her own finding of facts. The role of a witness is to help AJ to make such a finding by providing the particular facts surrounding the event claimed as discriminatory or retaliatory based on race, sex, etc., or based on your prior EEO engagement. In short, a witness should not speak like an AJ: “This is discrimination.” Instead, a witness should testify: “Complainant did not do X, Y, and Z, as accused by her supervisor. I saw it because I was there…..”
A witness must be able to testify as to what happened on such and such date with respect to such and such supervisor or such and such co-worker, etc. The more specific the testimony is, the more credible a witness is. Knowing dates goes a long way. The first-hand eyewitness testimony is better than the second- or third-hand witness testimony.
It is best if a concrete testimony is corroborated by a document presented as exhibit.
Do not provide character witnesses. They are useless.
If a witness is not approved by AJ (by sustaining Agency’s objection), propose him or her as a rebuttal witness.
A rebuttal witness may be called after the last witness’ testimony, if approved at the prehearing conference and if allowed at the hearing.
Only questions pertinent to rebut previous testimonies may be posed to the rebuttal witness.
Witness questioning involves three parts: Direct examination, cross examination, redirect examination, and recross examination.
Hostile witness: During a direct examination of a witness (usually a manager/decision maker), you may want to declare him or her as a hostile witness. That means, you can lead when posing questions afterwards.
During deposition, leading questions are allowed. They are not allowed during direct examination during a hearing, unless the witness is declared to be a hostile witness.
Prehearing conference is conducted by telephone or teleconference.
The objective of Prehearing Conference is to finalize witness lists for both parties and, depending on AJ, to finalize the exhibit lists for both parties.
Agency will object to some of your proposed witnesses. You should to some for some of Agency’s witnesses.
Hearing.
Most AJ will not allow opening statement.
Complainant has “case in chief,” meaning Complainant has the burden of proof.
Since Complainant has the burden of proof, you have the right to determine the order of witnesses.
It is recommended that you put the highest decision maker first in the order of witnesses and you, Complainant, the last.
Question the highest decision maker first, so that he would not be able to rely on the previous manager’s testimonies and thus corroborate them. Even though witnesses must be sequestered, Agency attorney has the right to consult each witness prior to testifying.
Complainant should go last so that he or she has the benefit of hearing all prior testimories and can thus rebut, if necessary and appropriate. Rebuttal can be made only if questions that are pertinent to the rebuttal are posed to Complainant.
No statement is allowed on the witness stand. This means: A witness can only respond to a question, nothing more, nothing less.
That means, if no rebuttal question is put forth before you, you cannot testify in rebuttal to what had been said in the witness stand by previous witnesses.
See more on witnesses above under Prehearing Submission.
Most AJ’s allow each party to present closing argument (5-10 minutes on so): to summarize issues, key facts, salient evidence or testimory, and the relief sought.
Advice 1: Listen to the management testimonies and rebut on specific points and highlight (in the closing argument) contradictions among different testimonies. Focus on the “other similarly situated” individuals and how they were treated by your manager in comparison to the treatment you received from the same manager.
Advice 2: Delineate the basic facts. Most cases are won by Agency misrepresenting basic facts. If you don’t provide a clear timeline of basic facts, Agency attorney will exploit ambiguity and misrepresent the facts in Agency’s favor.
Advice 3: Be on guard with respect to AJ’s statements, admonishments, or rules during the hearing. You can object to those on record, if appropriate and necessary, for later appeal.
Advice 4: Learn how to respond to and overcome Agency attorney’s objections to your questions (posed to a witness). Do Deepseek search on types of objections during witness examination.
Advice 5: During a deposition, the deponent must answer, even if the question is objected to by the opposing counsel/representative. During a hearing, in contrast, the witness must wait for AJ to rule on the objection and answer only when it is overruled. If it is sustained, the witness should not answer.
Advice 6: Sometimes objections are raised to interrupt the train of thought or the on-going testimony. Sometimes AJ might even interrupt the testimory for various reasons, including, unfortunately, to interrupt the train of thought or a salient point Complainant makes. If that happens, make sure that you object to AJ’s (unnecessary or inappropriate) interruption for the record for a later appeal.
Advice 7: Organizing your exhibits and ROI pages are the most important in the preparation for and during hearing. Most cases hinge on less than 20 documents. You might want to pull them out (in your hard drive/case folder) from the volumes case files or from the ROI.
Advice 8: Take a good note of testimonies, exhibit numbers, and ROI page numbers. They will be frequently referred to in various testimonies, as they should be in your closing argument as well.
Advice 9: Hearing is a misnomer. It should be named: “Show and Tell.” Use witnesses to show AJ the relevant documents in your favor or in rebuttal to Agency’s testimony/position. That means, ask the witnesses questions about the documents. A witness examination that does not discuss document is usually a waste of time.
Advice 10: Line up a witness to correspond to the relevant allegation you raised as discriminatory/retaliatory. That means, each allegation should have a winless to testify to, including the decision maker pertinent to that allegation.
Advice 11: Line up documents to correspond to each allegation you raised as discriminatory/retaliatory. Know the ROI page numbers (or exhibit numbers, if not found in the ROI) associated with each of those documents.
Advice 12: One of the most important things during a hearing is the ROI page numbers. If you cannot find the necessary document to prove, you have not proven the fact you have claimed.
Advice 13: There should be no “trial by ambush.” No document can be used as evidence at the hearing without first having shared it with the opposing party. This mean, if you have not produced a document during the discovery (assuming that such a document was requested by the opposing party in discovery), you cannot use it after the closure of discovery period. If you have evidence, share it with the opposing party as soon as you have it or obtained it.
Advice 14: Don’t throw volumes of documents at the AJ (by uploading them to the EEOC portal) and say: “Here, my evidence are all there. Look them up.” No one will look up the documents you uploaded, unless they are identified and attached as exhibits in support of your pleadings (motions, response to motions, response to Agency’s motion for summary judgment, and rehearing submission).
Advice 15: You can look up legal lingos at any of AI’s such as Deepseek. Don’t be intimidated by them.
Judge's Decision is issued within a month or longer (into several months at times) after the close of hearing. If the judge's decision is not in your favor (as it will be in most of cases), you may rebut by submitting a rebuttal brief to Agency's EEO HQ and argue as to why Agency should not incorporate AJ's decision when Agency issues the Final Agency Decision (FAD).
EEOC AJ’s decisions are not appealable.
Only Final Agency Decision (FAD) may be appeal to Office of Federal Operations (OFO) within 30 days of receipt, or to federal District Court within 90 days of receipt. See details on how to file a pro se Complaint at federal District Court.
Along with AJ’s decision, you should also receive the hearing transcripts for free. There, you will have all the testimonies rendered at the hearing for later use, such as a civil law suit at a federal District Court.
Final Agency Decision (FAD) can be appeal to Office of Federal Operations or to federal District Court.
➤ A Detailed Explanation on the EEOC Hearing Process:
Requesting a hearing:
When you receive the Report of Investigation at the end of the Formal EEO process, you will be notified of your right to request an EEOC hearing before an administrative judge. (Click here for EEOC hearing request form.)
Note: The "constructive discharge" (or forced resignation) cases for non-probationary federal employees are appealable only to the Merit Systems Protection Board (MSPB), not to EEOC. See EEOC's Equal Employment Opportunity Management Directive (EEO-MD-110) ("MD-110"), Chapter 4, Section II.B., pages 4-2 through 4-5 for explanations on 29 C.F.R. § 1614.302 Mixed case complaints.
The mixed case complaints can only be appeal to MSPB, not to EEOC. (There is no right to an EEOC hearing on a mixed-case complaint involving removal or termination, suspension of more than 14 days, furlough, or any other actions appealable to MSPB. However, you may appeal a mixed case to MSPB. See MSPB appeal.)
Class action complaints must undergo the informal EEO complaint process but need not undergo the formal EEO process. 30 days after contacting the EEO counselor, you should write to EEOC hearing unit in the appropriate EEOC Field Office and request a class complaint hearing.
EEOC Prehearing Process:
Once you request an EEOC hearing (to have your case heard by an administrative judge), the EEOC hearing unit will notify the Agency of its obligation to produce Agency's Investigative File (IF), including the Summary of Report of Investigation (ROI), within 15 days of the notice (29 CFR, Part 1614.108 (g)). Failure to provide the Investigative File (including ROI) may result in a default judgment against the Agency. If Agency fails to produce Investigative File, you should write to the EEOC hearing unit for a default judgment against Agency.
Note: EEOC rejected Agency's defense that, due to EEO staff transition or departure, the Investigative File could not be produced on time. See Lomax v. Depart. of Veterans Affairs, EEOC Appeal No. 0720070039 (October 2, 2007), which states in part: "The agency's internal situation cannot be used as a defense to its failure to comply with the Commission's regulations."
There is a pending complaint filed by Association of Administrative Law Judges (AALJ) in an attempt to strike down the OPM rule requiring the EEOC judges to be active bar members while functioning as Administrative Law Judges. See more detail on the AALJ complaint.
Acknowledgment And Order
(see Scheduling Order for more updated EEOC hearing process)
Once a case is docketed at EEOC for a hearing, an administrative judge (AJ) will be assigned to the case. The AJ will issued an Acknowledgement and Order (sample) specifying a series of deadlines. They involve due dates for discovery (see below), filing motions, responding to motions, etc. Depending on AJ, the deadline for submitting a prehearing report may also be set. See below for Prehearing Report.
Once the judge has been assigned to your case, you can make a motion to add issues not accepted, overlooked, or not investigated by the EEO investigator or by the Agency. You can amend your charge at this time (if appropriate and timely) by filing a motion to the judge to add new issues or on-going acts of discrimination or retaliation. (Watch for the deadline to do so in Acknowledgment and Order.) For more detail, see Amending the Complaint.
Any request you want to make to AJ must be made in the form of a "motion." All submissions or motions to the Judge must also be served to the Agency counsel and must be accompany by a certificate of service. (See Forms for sample motions) Motions must be carefully supported by evidence, including witness affidavits (including yours). (Download a blank affidavit form. Hearsay evidence is admissible in the EEOC hearing proceeding.) Agency will most likely oppose every motion you file. You should file a Response to Agency's Opposition to Complainant's Motion to ..... (See the Acknowledgment and Order for deadlines for filing responses.)
Once the Agency's Investigative File (including the Summary of Report of Investigation) is submitted to the judge by the Agency, everything in it becomes a part of record automatically for the hearing proceeding. You need not submit to AJ any documents already contained in the Investigative File in support of your motion or at the hearing itself (provided that they are clearly marked as exhibits or tabbed).
You may file a motion for a default judgment against the agency, if ROI has not been issued for more than 15 days (or 20 days, to allow for mail delivery) of your requesting an EEOC hearing.
Go to Store for a sample of default judgment motion for purchase.
Amending the Pending Claim to Add New or Dismissed Issues/Claims
You may add new issues which have occurred after completion of Agency's EEO investigation or during the hearing process (which could last 6 months to 2 years or more). To add a new claim, you must file a Motion To Amend to the Judge. The motion must be filed within the 45 days of occurrence of the event you are claiming as discriminatory or retaliatory.
See more on Amending Complaint. Go to Store for samples of amended complaint for purchase.
At any time during the hearing process, you may file a Motion to Amend (verbally or, better, in writing) to the judge to clarify or articulate the claims differently or to add another basis of discrimination such as race, age, retaliation, etc. See more on "issues" and "bases" of discrimination complaints under How To Write Complaint. A basis can be added or dropped at any time without a statutory (time) limitation.
You may also file a Motion to Amend to restore the claims/issues which were improperly dismissed by the EEO Director/Manager/Analyst at the Agency’s EEO office during the formal complaint process. Such motions must be filed generally within 30 days of receipt of Acknowledgment And Order.
You may also file a motion to amend the complaint to add recent incidents you allege to be discriminatory or retaliation. See more on amending the complaint.
Discovery
The EEO MD-110, Chap. 7, VII(A) provides that:
The administrative judge will advise both parties that they will have at least 60 days to develop evidence. They can do this in the same manner as in
individual cases, i.e., through interrogatories, depositions, requests for admissions, stipulations, or production of documents. The parties may object
to production on the grounds that the information sought is irrelevant, overly burdensome, repetitious, or privileged.
It is very important that you or your representative initiate the discovery on time (usually within 20 days of receipt of Acknowledgment and Order. See the Order issued to you.). Discovery includes Interrogatories, the Request for Production of Documents, and the Request for Admission. You can request for Agency's decision makers to response to your written Interrogatories (the questionnaires you can send to Agency counsel requesting responses from Agency's decision makers). You can ask vital questions to your supervisor or any other Agency decision makers who played a role in the discrimination issues you are alleging. You may also ask questions to your witnesses who are currently employed with the Agency. Discovery requests are served to the Agency counsel or representative, never to the judge. You need to specify the deadline (usually within 30 days of receipt, per Acknowledgment and Order) for Agency to produce the response.
Go to Store for samples of discovery requests for purchase.
If the Agency fail to respond sufficiently, adequately, or timely to your discovery requests, you can file a motion to the judge to compel Agency to respond to your discovery requests. (Go to Store for samples of motion to compel for purchase.) Watch for the deadline for a motion to compel - usually within 5 days of receipt of the deficient response or of Agency's failure to meet the deadline you gave. Before filing a motion to compel Agency, however, you must attempt to work out with Agency counsel regarding Agency's compliance to your discovery requests (generally via a phone call or email, requesting the status of Agency's response (“I served my discovery request on such and such date. Agency’s response was due on such and such date. To date, I have not received it. When can I expect to receive it?”)
More on how to request documents and information.
Agency rarely will respond to your discovery request sufficiently or in full. Typically, Agency will object to most, if not all, of your discovery requests and, not withstanding the objections, will provide deficient responses. In order to force the Agency to produce thorough and detailed responses to your Interrogatories and Request for Production of Documents, you must file a Motion to Compel for AJ (and copy it to Agency counsel) to enforce your discovery request.
Nowadays, EEOC AJ’s hardly allow parties to file a motion to compel without first seeking a conference with AJ to resolve the outstanding discovery dispute. Follow the instructions carefully written in Acknowledgment and Order or Scheduling Order.
See an EEOC Judge's testimony regarding Agency's abuse of the discovery request.
Motion to Compel
Before filing a Motion to Compel, the following condition must be met:
1) Your discovery request must be initiated timely;
2) You must attempt to work out with Agency attorney and try to resolve Agency's failure to comply with your requests. For example, if Agency attorney requests an extension based on reasonable grounds, you should negotiate the extension and give a shorter extension (like a week or two) than the longer one requested. If Agency failed to produce any response (i.e., a total silence to your discovery request already sent), you should, as referenced above, send an email, reminding the due date and asking when you may expect to receive discovery response.
3) If you receive Agency's discovery responses but find them deficient, you must further try to work out with the Agency to obtain sufficient discovery responses by showing why Agency's responses are deficient on each deficient response. Showing this will be the grounds for your argument later on to present to AJ (in your Motion to Compel) as to why Agency must be compelled to supplement its deficient discovery response. Go to Store for samples of deficiency notice for purchase.
4) In your notice of deficiency of Agency’s discovery response, you must give another due date for Agency to supplement its deficient discovery response. Make sure that the new deadline is not too close to the date when discovery is set to end, as you will need some time to review Agency’s supplemental discovery response (if such is received) and to do follow up.
➤ Hearsay evidence is allowed in the EEOC hearing proceeding, including in the Motions, Prehearing Report, and, of course, at the hearing. However, it never overrides a direct evidence by way of a record or first-hand eyewitness testimony.
All motions and submissions to the judge must be served at the same time to the Agency representative; and a certificate of service verifying that you have done so, must accompany all your submissions.
➤ Stipulations are facts agreed upon by both sides. Since they are admitted by both sides, they need not be established at the hearing or in the motion (if the motion is filed after stipulations are established). The more stipulations, the shorter the hearing will be. Thus judges like as many stipulations as possible. However, do not be pressured by Agency counsel into admitting facts you are not comfortable or familiar with. If you don't like how an event is characterized, don't agree or stipulate to it. You are not required to stipulate to anything. Stipulation must be voluntary.
➤Settlement discussions are usually ordered (by the judge) to be initiated by Complaint to resolve the matter at the outset of the hearing process. You may be requested to provide a written itemization of your settlement demands and the justification thereof. There is no requirement to settle. However, resolving the issue via amicable settlement is better than winning the case.
Decision Without A Hearing:
The judge may decide to render a summary judgment without holding a hearing. Sometimes, the judge may notify both parties his or her intention to do so (by issuing a 'Notice of Intent to Enter Summary Judgment' or "Notice of Possible Decision Without a Hearing"). However, usually and most likely, the Agency files a motion for a summary judgment or a Motion for a Decision Without a Hearing. You or your representative should file a response to such a motion in opposition. See a sample. A summary judgment without a hearing may be rendered if there are enough material and relevant facts undisputed or indisputable in the case. Generally, to defeat Agency's motion for summary judgment, all you need to do is to show (with supporting evidence) that the material facts presented by Agency as undisputed or indisputable are in fact disputed or disputable.
If you feel you have enough evidence on record to support your claims of discrimination and to show (generally and almost always) Agency's adverse disparate treatment of you in comparison to the other similarly situated individuals, you may also file a motion for a summary judgment in your favor. But don't do it unless you have "drop dead" evidence against the Agency such as the decision maker admitting that he fired you because you had disability.
See an OFO Decision (2012-01-12) reversing AJ's summary judgment and remanding the case back to the Agency for a hearing. This also has the criteria for permitting AJ to render a summary judgment and how to defeat a motion for summary judgment.
If the judge decides to render a summary judgement, the prehearing and the hearing (if scheduled) will be canceled; and the judge's decision will be issued shortly thereafter.
Note: Due to caseload or for whatever reasons, there is a great tendency on the part of the AJ's to render a decision without a hearing (almost always in favor of the Agency). Such attempt must be opposed and, later, appealed to the Office of Federal Operations (see OFO appeals).
It must be noted that EEOC "hearing process is intended to be an extension of the investigative process, designed to "ensur[e] that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses." See EEOC Management Directive (MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also 64 Fed. Reg 37,644, 37,657 (1999) (to be codified and hereinafter referred to as 29 C.F.R. §§ 1614.109(c) and (d)). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives complainant of a full and fair investigation of her claims." Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United States Postal Service, EEOC Request No. 05950628 (October 31, 1996); Chronister v. United States Postal Service, EEOC 3/18/2012 Request No. 05940578 (April 23, 1995)." -- From the April 11, 2000 OFO Decision on Roberts vs USPS, Appeal No. 01986449.
See an AJ's testimony at EEOC's Strategic Enforcement Plan Meeting in 2012, arguing inefficiency of EEOC and pleading for a reform.
Hearsay evidence is allowed in EEOC hearing process.
A hearing brief (if a prehearing report was not submitted already for one reason or another and if permitted by the judge) can be submitted before the hearing but not after. The hearing is closed to the public. Hearings usually do not last more than 2 days. Judges like to do it in a day.
Unlike MSPB hearing, EEOC hearing is not open to the public. It can be exploratory.
Note that most judges used to be Agency attorneys.
Hearing Transcripts should be purchased by Agency from the court reporters’ company and uploaded to EEOC portal. You should cite from the transcript (with page and line numbers) for later appeal to Office of Federal Operation (OFO) or at the litigation in civil lawsuit (if you file at a federal District Court). See pro se litigation at U. S. District Court.
Administrative Judge's Decision and Order is rendered within 30 to 60 days of completion of the hearing. It is usually incorporated into the Final Agency Decision (FAD). The judge's decision will be sent to you before FAD is issued to you. When AJ’s decision is sent, EEOC should also send you the hearing transcripts for free. There, you will have all the testimonies rendered at the hearing.
If you submitted to the judge (before the hearing) a prehearing brief (sample) summarizing facts and arguments along with supporting evidence (or reference to supporting evidence in ROI), and if judge's decision is not in your favor, you may want to send the prehearing brief or new brief to Agency EEO headquarters to be considered before Agency issues Final Agency Decision (FAD). Or you may want to rebut the judge's decision by presenting a brief containing summary of facts, arguments, evidence (or reference to evidence in ROI) to Agency EEO headquarters to be considered before Agency issues FAD. If you do, you want to request that the judge's decision not be implemented in the FAD.
Bench Decision
AJ may announce, prior to completion of the hearing or even at the beginning of the hearing, that she may issue a bench decision. Bench decision is a decision rendered at the bench, recorded by the court reported, and issued in a written form later. (Normally, hearing decisions are mailed to you after the hearing.) Bench decision can be rendered at the completion of the hearing or on a separate date set aside to render it. In the latter case, only the court reporter may be present with AJ, while the complainant, complainant's representative, and the agency representative may be available on the phone. AJ will read her entire decision to be recorded by the court reporter.
AJ's may prefer bench decision because it simplifies and expedites the decision. That is, not all relevant case precedences and other references need to be made in the bench decision; and the AJ need not wait for the hearing transcript to be made available in order to render a bench decision. In short, bench decision is rendered without citing the hearing transcript.
➤ The following conditions must satisfy in order to render a bench decision:
The available records (i.e., things contained in the Investigative File and produced during testimonies of the witnesses during the hearing) must be complete (that is, sufficient enough to render a decision).
There is no remaining material facts in dispute or that are disputable (in AJ's judgment).
AJ's notes taken during the hearing are sufficient (in AJ's judgment) to render a decision (in addition to the available records).
Hearing transcripts are due within 10 days of hearing. Bench decision transcripts are due within three
business days of the decision. From the Acknowledgment and Scheduling Order issued by Chicago District Office, EEOC.
See samples of sanitized EEOC AJ decisions under Laws and Standards.
Disclaimer
Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
Mr. Lee does not practice law and cannot provide protection based on attorney-client privileges. However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
Mr. Lee cannot and does not represent clients at the court proceedings.