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:

  1. Request an EEOC hearing. (Click for EEOC hearing request form. For Designation of Representative form.)

  2. 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.

  3. Receipt of Acknowledgment and Order (sample) issued by the assigned administrative judge. This Order is one of the most document 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.

  4. Settlement proposal and, if applicable, negotiation.  Settlement is encouraged, not mandated. AJ cannot forced the parties to settle. AJ can order the parties to contact each other to discuss settlement.

  5. Discovery by both Agency and Complainant to be initiated within 20 days of receipt of Acknowledgment and Order.*

  6. Response to the discovery requests - usually due to the other party within 30 days of receipt of the requests.*

  7. Deposition. Agency attorney may depose you; as well as you can depose Agency decision makers and witnesses. If you want deposition, you must pay for the court reporter and the transcripts of the testimonies produced during your deposition.  You may purchase transcripts produced during Agency's deposition (of you).

  8. Motion to dismiss or for summary judgment filed by Agency in most cases. This must be responded to in order to avoid a decision rendered without a hearing.* You may also file a motion for a decision without a hearing if you think that the Investigation File contains "drop dead" evidence showing discrimination or retaliation. Otherwise, don't file a motion for a decision without a hearing.

  9. Scheduling Order for prehearing and hearing. (Depending on the judge, the scheduling order may be issued earlier or it may be issued after a prehearing conference.)

  10. Prehearing statement to the judge, if requested by the judge, containing summary of relevant facts and argument, supporting evidence (or reference to evidence), list of witnesses, and damage claims.*

  11. Prehearing conference by telephone. (In limited cases, this may take place before prehearing statement submission, depending on AJ's order.)

  12. Hearing.*

  13. Judge's Decision (If the judge's decision is not in your favor, you may request and argue by submitting a brief to Agency's EEO HQ why Agency should not incorporate AJ's decision when issuing the Final Agency Decision (FAD)).

  14. Issuance of Final Agency Decision, which can be appeal to Office of Federal Operations.

(* indicates labor intensive legal work, written or verbal.  See below for details on each step and for samples of motions/response to motions.)

➤ 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.)

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.  

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.

At any time during the hearing process, you may file a Motion to Amend (verbally or 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.

You may also file a Motion to Amend to restore the claims/issues which were improperly dismissed by the EEO Director/Manager/Analyst 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.

If the Agency fail to respond sufficiently, adequately, or timely to your discovery requests, you can file a motion to the judge to compel the Agency to respond to your discovery requests. (See a sample one of motion to compel or sample 2 of motion to compel)  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 the Agency, however, you must attempt to work out with the Agency regarding Agency's compliance to your discovery requests (generally via a phone call or a letter requesting the status of Agency's response.) See a sample of a letter trying to work out the non compliance.  More on how to request documents and information.

Agency rarely will respond to your discovery requests in full--that is, sufficiently and adequately. 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 to AJ (and copy it to Agency counsel.)

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 must be initiated timely (within 20 days of receipt of Acknowledgment and Order);

2) You must attempt to work out with Agency attorney 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) than the longer one requested.  If Agency failed to produce any response (including any calls regarding the discovery), you should, as referenced above, send a letter (sample) notifying Agency of its obligation to produce a response by the due date you specified (usually within 30 days of receipt of your discovery requests).  

3) If you receive Agency's discovery responses but find them deficient, you must also try to work out with the Agency to obtain a sufficient responses by showing why Agency's responses are deficient.  Showing this will be the grounds for your argument later on for arguing to AJ why Agency must be compelled to produce more adequate responses in your Motion To Compel.  Show how each item in the Interrogatories or in the Request for Production of Documents are deficient, such as: "Documents produced by Agency on this XX date does not fall within the time period specified in the discovery request....", or they are redacted so much that no one can understand, or, for example:

➤ Regarding Agency Response to Request for Production of Document No. 1:

  • Agency failed to provide, among others, copies of requested documents: emails issued by Chris XXX and Larry XXX.  Agency is directed to produced them by the due date specified below, as a response to Complainant’s document production request.

➤ Regarding Agency Response to Request for Production of Document No. 2:

  • All relevant records dating from October 1, 2007, the performance period for which Complainant was rated unfairly, to the date of Mr. XXX's retirement in 2010 [contrary to Agency's objection] must be produced.  

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

  • All records pertaining to the status of EEO activity outside Complainant’s protected classes [which Agency objected to as irrelevant and immaterial] is relevant insofar as the records pertains to the employees who were ranking similar to Complainant under Mr. XXX and the subordinates thereof.

If AJ accepts your motion to compel Agency and issues an Order for Agency to comply with your discovery request by certain deadline; and if Agency still fails to comply with the Order; you may file a motion to request  sanction against the Agency for not complying with AJ's Order, including barring Agency from introducing any more evidence thenceforth and/or witnesses at the hearing.

The judge will specify the discovery period, after which no further discovery may be allowed by either side, including depositions (See Acknowledgment and Order issued to you).  After discovery period, no other evidence can be admitted (except for impeachment of witnesses for perjury at the hearing, if appropriate), unless a new and fresh evidence was obtained.  Any newly obtained evidence which surfaced after the end of discovery period should be immediately submitted to the Agency and/or to the judge for use at hearing.  You need to file a motion for admission of the records as evidence.  Sometimes, you may include these new evidence in your Prehearing Report.  See below for Prehearing Report.

Complainant and witnesses may be deposed by the Agency counsel during the discovery period. Complainant is expected to cooperate with the Agency's deposition. Complainant may depose the Agency's decision makers as well at his or her expense during the discovery period. 

➤ 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 hand-hand witness testimony.

All motions and submissions to the judge must be also served to the Agency representative; and a certificate of service verifying that you have done so must accompany all your submissions.

➤ Stipulations are facts agreed upon by both sides. Since they are admitted by both sides, they need not be established at the hearing or in the motion (if filed after stipulations are established). The more stipulations, the shorter the hearing will be.  Thus 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 it is described, don't agree or stipulate to it.  You are not required to stipulate to anything.

➤Settlement discussions are usually ordered (by the judge) to be initiated by the Agency to resolve the matter at the outset of the hearing process.  You may be requested to provide a written itemization of your settlement demands and the justification thereof.  There is no requirement to settle.  However, resolving the issue via amicable settlement is better than winning the case.

Decision Without A Hearing:

The judge may decide to render a summary judgment without holding a hearing.  Sometimes, the judge 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 correct reform.

Final Agency Decision (FAD):

Once the judge's decision is issued, it will be incorporated into the Final Agency Decision (FAD). The FAD will be issued to you within the 40 days of receipt of the judge's decision. You can request and argue to the Agency's EEO Headquarters not to implement the judge's decision in the FAD before the FAD is issued to you. Also, you can appeal the FAD to EEOC's Office of Federal Operations (OFO) within 30 days of receipt of the FAD.

Scheduling Order:

Due to case backlog or otherwise, the EEOC administrative judges may not be able to schedule a hearing right away.  Some cases linger on the judge's docket for months, if not for two or three years.  You may file a civil action in an appropriate U.S. District Court 180 days after filing a formal complaint, if no action has been taken by the judge or if no Final Agency Decision (FAD) has been issued.  In other words, after 180 days from filing a formal complaint, you can always file a civil action at the federal district court.

If the judge decides to hold a hearing, he or she will issue a Scheduling Order and notify scheduling of a prehearing and a hearing.  The Agency is required to provide the feasible location for the hearing and to arrange a phone conference for the prehearing. You are responsible for the cost of your witnesses' appearance at the hearing, if they are not currently employed by the agency or by federal government.  

Due to time constraints, judges usually don't allow more than 3 or 4 witnesses from each side.

The judge may require both parties to submit a prehearing report, containing a summary of facts and issues, stipulations (if any), arguments, a list/inventory of evidence and witnesses, and other relevant items pertaining to the hearing.  A list of witnesses should be part of the prehearing report and should include the name, title, address, phone, and a brief and specific description of what he or she can attest to. 

Your prehearing report or any motions you file may be objected to by the Agency on various grounds. You may do the same on the Agency's prehearing report or on any of its motions.

At the prehearing conference (which is usually conducted by phone) the issues and bases, admission of new evidence, and number of witnesses are discussed, disputed, agreed upon, or ruled by the judge. (Depending on the length of expected testimony, only about 5 witnesses you proposed in the prehearing report may be approved at maximum.  Ask to have a two-day hearing.)  Various outstanding motions, if any, may be dealt with at the prehearing as well.  Any stipulations may also be discussed and agreed to. You may file a verbal motion to the judge during the prehearing conference.  In fact, as long as Agency counsel is present before the judge, you may file a motion verbally (even during the hearing.)You can count on Agency to oppose every motion you file or make.

EEOC Hearing:

The Judge begins the hearing with brief summary of issues and bases.  Opening and closing statements can be offered from both sides.  You cannot submit any additional or new evidence not discussed or agreed upon by both sides prior to the hearing.  However, you can introduce new evidence (via a motion) if the witness discusses it during the hearing and if you overcome the opposing counsel's objection to your motion for admission.

Testimonies and evidence are submitted or referred to from the Investigative File (IF) or the Report of the
Investigation (ROI). Witnesses are questioned, cross examined, re-crossed, and re-addressed by both
parties.  

Generally, the party who has the burden of proof presents its case first.  Because the complainant usually has the burden of proof to prove discrimination, the complainant usually should make his/her opening statement first, call witnesses first, introduce exhibits, etc..  Both parties have the right to question the other party's witnesses.

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.  

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:

  1. 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).

  2. There is no remaining material facts in dispute or that are disputable (in AJ's judgment).

  3. 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.

Appeals:

You cannot appeal the Judge's Decision but can appeal the Final Agency Decision (FAD) incorporating the judge's decision. You can appeal to EEOC's Office of Federal Operations (OFO) within 30 days of receipt of the FAD.

Within the 40 days of the administrative judge's decision, the Agency is required to issue you the Final Agency Decision (FAD) along with the notice of your appeal right either to EEOC Office of Federal Operations (OFO) or to a federal district court. You may need an attorney to file a civil suit at the federal court or may represent yourself (pro se).

Final Agency Decision (FAD):

Once the judge's decision is issued, it will be incorporated into the Final Agency Decision (FAD).  The FAD will be issued to you within the 40 days of receipt of the judge's decision.  You can request and argue to the Agency's EEO Headquarters not to implement the judge's decision in the FAD before the FAD is issued to you. Also, you can appeal the FAD to EEOC's Office of Federal Operations (OFO) within 30 days of receipt of the FAD.

 

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 attorney-client protection 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 court proceedings.