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. 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. Summary judgment is proper when "material facts are not in genuine dispute. Only a dispute over facts that are truly material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc. 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 , U. 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. 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. 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. C of this Management Directive. The discovery instructions that follow are intended to provide a simple method of discovery.
They will be interpreted and applied so as to avoid delay and to facilitate adjudication of the case. The parties are expected to initiate and complete needed discovery with a minimum of intervention by the Commission's Administrative Judge.
The parties are further expected to use discovery judiciously for its intended purpose only. The Administrative Judge shall send the parties an acknowledgment order advising the parties that they may commence discovery.
It is the Commission's policy that the parties are entitled, pursuant to 29 C. It is anticipated that discovery will ordinarily involve supplementing the existing record.
There may be situations in which the record does not have to be supplemented. Discovery must be completed by such time ordered by the Administrative Judge. Parties may request to extend the time for discovery beyond the time limit set. The Administrative Judge may modify the time frame for completing discovery either by extending it or by curtailing it as the Administrative Judge may determine.
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.
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. 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. 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.
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.
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.
Absent specific authorization from the Administrative Judge, requests must be specific, identifying the document or types of documents requested. A set of document requests shall not exceed 30 in number including all discrete subparts. In many instances, discovery should proceed on an informal basis, including unrecorded meetings and conference calls designed to exchange information.
For example, if a primary purpose of discovery is to determine the scope and content of a material witness's testimony, it may be sufficient that there be a meeting scheduled with the witness and that the discovery be conducted on an informal basis.
If that method proves unsatisfactory, a more formal method of discovery may be used. When information gathering and hearing preparation takes place outside the scope of formal discovery, agencies may not restrict access to non-management employees who voluntarily cooperate with informal discovery. Unless the Administrative Judge requires that a party request authorization to commence discovery, parties may begin discovery upon receipt of the Administrative Judge's acknowledgment order.
If the Administrative Judge requires that a party request authorization to commence discovery, the request must state the method s and scope of discovery requested and its relevance to the issue s in the complaint.
Upon receipt of the Administrative Judge's authorization to begin discovery or acknowledgment order that does not require the parties to seek authorization, the parties must, within twenty 20 calendar days or such period of time ordered by the Administrative Judge, exchange 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. Requests for discovery should be addressed to the agency representative, complainant, and complainant's representative of record, and not to the Administrative Judge , unless requested by the Administrative Judge.
Where a party inappropriately submits a discovery request to the Administrative Judge, the required time frame for submitting the request to the appropriate party will not stop running unless the Administrative Judge rules otherwise. Copies of discovery requests should not be provided to the Administrative Judge unless a motion to compel or a response to a motion to compel is being filed or if otherwise directed by the Administrative Judge.
The request should be: 1 as specific as possible and 2 reasonably calculated to discover non-repetitive, material evidence. A response means:. Following the filing of an opposition, if any, to the motion to compel discovery, the Administrative Judge will rule expeditiously on the request for discovery.
In the alternative, the Administrative Judge may, in the interest of expediting the hearing, order that the document s , witness es , or other evidence at issue be produced at the hearing. Where the Administrative Judge finds that the request for discovery that is the subject of the motion to compel is irrelevant, overburdening, repetitious, or privileged, the Administrative Judge will deny the motion to compel and may, upon the request of the party opposing the motion to compel, or upon the Administrative Judge's own initiative, issue such protective orders as the Administrative Judge determines appropriate.
A failure to respond or follow an order to comply with a request for discovery may result in sanctions. See Section III. It is the intention of the Commission that the parties utilize the informal or formal discovery procedures provided for in this Chapter to develop the record in the complaint or that the record be developed to the extent necessary through the Administrative Judge's orders for documents, information, and witnesses.
Under previous Commission guidance, the failure to request discovery did not imply a waiver of the opportunity of the parties to make requests for documents and witnesses at the hearing. Allowing parties this opportunity at the time of the hearing, regardless of whether the discovery process was invoked, is not consistent with sound administrative economy and with the expeditious processing of complaints.
The parties shall initially bear their own costs with regard to discovery, unless the Administrative Judge requires the agency to bear the costs for the complainant to obtain depositions or any other discovery because the agency has failed to complete its investigation timely as required by 29 C.
All participants in the EEO hearing process have a duty to maintain the decorum required for a fair and orderly proceeding and to obey orders of the Administrative Judge. Any person who engages in improper behavior or contumacious conduct as defined in Section V. It further provides that if the complainant's or agency's representative engages in misconduct or refuses to obey an order of the Administrative Judge, the Commission may suspend or disqualify the representative from future hearings, refer the matter to an appropriate licensing authority, or both.
An Administrative Judge has the power to regulate the conduct of a hearing and to exclude any person from a hearing for contumacious conduct or misbehavior that obstructs the hearing.
The Administrative Judge may exclude any disruptive person, including the complainant, an agency official, or a representative, including agency or complainant counsel. This sanction generally applies to conduct occurring in the Administrative Judge's presence at any point during the hearing process, including prehearing proceedings and teleconferences as well as the hearing itself.
It also applies to a representative's refusal to obey orders of the Administrative Judge. The exclusion bars the individual, for the duration of the hearing process, from further participation in the case in which the misconduct occurs. In contrast, a disqualification of a representative applies to future hearings.
The procedure for disqualification is in Section V. B below. The authority of an Administrative Judge to impose an exclusion under 29 C. For example, courts have certain implied powers that are necessary to the exercise of all others. Chambers v. Dunn , 19 U. Wabash R. Inherent powers must be exercised with restraint and discretion.
In considering the imposition of sanctions, Administrative Judges must take steps to ensure fairness to the parties and the effectiveness of the sanction in furthering the orderly conclusion of the hearing process. Sanctions should be proportional to the nature and degree of the improper conduct. Administrative Judges may look to rules of ethics, common law, statutes, and case law to determine the propriety and nature of a sanction. With respect to sanctions against a representative, the Administrative Judge should be mindful that a party to the EEO process is entitled to be represented by an individual of that party's choice, and the representative is expected to be an advocate for the party's interests.
Nonetheless, by virtue of their position, all representatives also have a particular responsibility to respect the order and authority of the EEO process. See subsection 4 below. In addition to exclusion under 29 C. Sanctions under 29 C. The failure of a party to produce evidence or obey an order may support the drawing of an adverse inference about a matter in dispute, the exclusion of other evidence offered by that party, or a decision on the merits in favor of the other party.
Monetary sanctions include attorney's fees and the costs of discovery. The parties should be informed that engaging in improper conduct or failing to comply with orders of the Administrative Judge or Commission regulations may result in sanctions under 29 C.
Giving such a warning is within the Administrative Judge's discretion however. Any asserted failure to advise the parties of the potential for sanctions does not limit the Administrative Judge's authority to impose a sanction. A person's conduct is contumacious when it is "willfully stubborn and disobedient. Contumacious behavior or disruptive conduct may include any unprofessional or disrespectful behavior; degrading, insulting, or threatening verbal remarks or conduct; the use of profanity; or conduct engaged in for the purpose of improperly delaying the hearing.
However, the Administrative Judge may take into consideration other improper conduct engaged in by the individual on any previous occasion before that judge, if the Administrative Judge had clearly described the misconduct for the record in the earlier proceeding or the misconduct is otherwise clearly apparent from the record. In addition, there may be situations in which a decision to exclude a person may take into consideration prior misconduct before a different Administrative Judge or the Commission.
This should be done in appropriate circumstances, taking into account the nature and degree of the misconduct. If the sanctioned individual engages in further improper conduct in a subsequent hearing before the same or a different Administrative Judge, the prior sanction should be considered in determining whether to exclude the individual from the subsequent hearing. Representatives may also be excluded for refusal to follow the orders of an Administrative Judge or other improper conduct, in addition to "contumacious conduct or misbehavior that obstructs the hearing.
If a party's representative engages in repetitive misconduct or conduct justifying exclusion, the Commission also will consider imposing a suspension or disqualification through the procedure described in Section B below. Unless the improper conduct is so egregious as to compromise the order required for a fair and orderly proceeding, the Administrative Judge normally should first warn the offending person to stop the conduct.
The warning should give notice that if the conduct continues, the person will be excluded from the hearing. When imposing the sanction, the Administrative Judge must ensure that the record includes a clear and specific description of the nature of the misconduct. The record must include the particular details of what the person said or did, rather than a conclusory characterization.
Any gestures or actions that would not be apparent from the hearing transcript should be clearly described for the record. If the person used profanity or other improper or threatening language before the Administrative Judge while off the record or at a proceeding that is not being transcribed, the Administrative Judge should relate the particular language used in a statement on the record or other written statement made a part of the record.
An Administrative Judge's decision to exclude a person from a hearing is final. There is no right to an interlocutory appeal of an exclusion decision.
A party may raise the issue as part of an appeal of the final order on the case when the party asserts it has been deprived the opportunity for a fair hearing. If the complainant engages in obstructive misconduct or contumacious conduct, the Administrative Judge should warn the complainant as described above and consider recessing the hearing for a short time to restore order.
If the complainant's misconduct is extreme or persistent, the Administrative Judge may, pursuant to 29 C. If the agency's representative is excluded, the Administrative Judge must notify the agency of the exclusion.
The Administrative Judge also may impose an evidentiary sanction against either party as provided in 29 C. For example, when misconduct has prevented or hindered the development of evidence, the Administrative Judge may draw an adverse inference; consider the matter to be established in favor of the opposing party; exclude other evidence; or issue a decision fully or partially in favor of the opposing party.
The standard for imposing such a sanction must be the same for both complainants and agencies. A sanction should be proportional to the level of the misconduct and reflect the degree to which the misconduct has impeded a full and fair hearing. In the case of repeated or flagrant improper conduct by a representative, the Administrative Judge or the Commission may take further action.
These provisions apply not only to conduct at the hearing stage of the case but also to all other actions taken by a representative in the course of an EEO proceeding, including the appeal. A disqualification applies to future representation of a party before the Commission, at both the hearing and appellate stages. A show cause order accomplishes this notice. For improper conduct or a refusal to follow orders at the hearing stage, the Administrative Judge will issue the show cause order and certify the matter to the Director, Office of Federal Operations, for a determination.
In addition, the Administrative Judge may, separately or simultaneously, issue an order excluding the representative from the hearing process in the case at bar, in accordance with the provisions discussed above. If the representative is an attorney, referral to the appropriate bar association normally should be considered as well, pursuant to Section C below.
For improper conduct during the appeal, the Office of Federal Operations will issue the show cause order. An order suspending or disqualifying a representative from future hearings must specify the time period the penalty will be in effect, which must be commensurate with the severity of the conduct. When the Administrative Judge or the Commission proposes to suspend or disqualify the agency's representative, a copy of the show cause order and subsequent decision must be provided to the agency's EEO Director.
This may be done independently of, or in conjunction with, any proposed or final exclusion, suspension, or disqualification. The Administrative Judge then would issue a second decision subsequent to the end of this day period concerning the quantum of relief and attorney's fees.
In this situation, the agency's day period for taking final action on the Administrative Judge's decision and determining whether it will implement the decision begins on its receipt of the second decision and the hearing file. The Commission notes, however, that considerations of proximity will generally exclude the use of video conferencing when all participants and the Administrative Judge are located within commuting distance of an appropriate location for an in-person hearing.
But cf. Louthen v. Objections to video conference raised on appeal will be reviewed by the Commission under the abuse of discretion standard, on a case-by-case basis. Sanctions only would be appropriate where a party subsequently fails to comply with an order or request of the Administrative Judge that puts the party on notice of the type of sanction that may be imposed for noncompliance. This rule applies in all instances where the Administrative Judge intends to impose a sanction on a party for a failure to comply with an order or request that does not make clear what sanction s may be imposed for noncompliance.
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of 1 a party who is a natural person, or 2 an officer or employee of a party which is not a natural person designated as its representative by its attorney, or 3 a person whose presence is shown by a party to be essential to the presentation of the party's cause, or 4 a person authorized by statute to be present.
D of this Chapter in this Management Directive, for a discussion of placing a party on notice that sanctions may be imposed before ordering their imposition.
However, see also Council v. The Commission found that complainant's representative "engaged in contumacious conduct of the worst kind: asking questions which the witnesses could not comprehend, then berating the witnesses for failing to answer; repeatedly testifying rather than asking questions; vociferously arguing on the record with the agency representative and the Administrative Judge; defying the authority of the Administrative Judge with regard to evidentiary rulings and the conduct of the hearing; and threatening the Administrative Judge over an evidentiary ruling.
Any one of the types of misconduct noted in Bradley would alone be sufficient. Under 29 C. In contrast to disqualification for misconduct, a disqualification for conflict of interest under 29 C.
Parties shall disclose and reasonably attempt to avoid all conflicts of interest. The revised MD provides federal agencies with updated Commission policies, procedures, and guidance relating to the federal sector complaint process as set forth in 29 C. Part and reflects new developments in case law, as the federal workplace and EEO practices have evolved.
The revised directive also includes changes required after EEOC amended certain sections of the regulations governing the federal sector Equal Employment Opportunity EEO process in The revisions to MD were based on recommendations from the Commissioners; testimony and submissions from a Commission meeting on federal sector reform; staff proposals; comments from agencies and agency components filed pursuant to Executive Order ; and public comments from individuals, members of the bar, civil rights groups, unions, other organizations, and federal agencies.
The rule requires that EEOC provide guidance regarding the changes the rule requires and continue to assess the federal sector EEO complaint process with a view to further improvements. Because the last major revision of MD was in , in addition to implementing the new regulatory provisions, EEOC took the opportunity to update MD based on new legal and practical developments. The agency identified five focus areas: 1 pilot projects process; 2 class complaint updates; 3 conflict of interest updates; 4 implementation of final rule; and 5 general updates and clarifications.
Following is a summary of the changes, updates, and revisions in the new MD, organized by chapter. Section IV.
The final rule adopted in contains a number of key revisions to 29 C. Part As part of EEOC's authority to review agency programs for compliance with EEOC directives and guidelines promoting equal employment opportunity in the federal workplace, EEOC can issue notices to agencies when non-compliance is found and not corrected. Agencies can seek approval from EEOC to conduct pilot projects in which the complaint processing procedures vary from the requirements of Part A complaint that alleges that a proposal or preliminary step to taking a personnel action is discriminatory can be dismissed unless the complainant alleges that the proposal is retaliatory.
An agency that has not completed its investigation in a timely manner must inform the complainant in writing that the investigation is delayed, provide an estimated date of completion, and remind the complainant that he or she has the right to request a hearing or file a lawsuit.
An Administrative Judge's decision on the merits of a class complaint is a final decision, rather than a recommended decision, which an agency can implement or appeal.
Agencies must submit appeals and complaint files to EEOC digitally, unless they can establish good cause for not doing so. Complainants are encouraged to submit digital filings. Preamble Provides the history of the federal sector equal employment opportunity EEO complaint process.
Section III. Addresses potential conflict of interest in processing federal sector EEO complaints. Specifically addresses two important potential conflicts of interest: 1 when the alleged responsible management official is the head of the agency; and 2 when the alleged responsible management official is the EEO Director or supervisor in the EEO Office. Supplies guidance to agencies on how to develop an impartial record where a conflict of interest or the appearance of a conflict exists.
Provides instruction to agencies on how to ensure a clear separation between the agency's EEO complaint program and the agency's defensive function. In particular, there must be sufficient legal resources provided to the EEO program and where necessary, a firewall established between the EEO function and the agency's defensive function. Section VIII. Establishes how EEOC will address issues of non-compliance with rules, regulations, orders, Management Directives, Bulletins, or any other instructions issued by the Commission.
Section IX. Outlines the steps for requesting pilot projects on processing complaints in ways other than those prescribed in 29 C. Section X. Chapter 2: Pre- Complaint Processing Defines "EEO ADR" as a term used to describe a variety of approaches to resolving conflict that differ from traditional adjudicatory or adversarial methods.
Section I. Explains that EEO Counselor training requirements now include training in the various theories of discrimination and an overview of the agency's informal and formal ADR processes. Section II. Advises the aggrieved person that his or her identity will not be revealed unless he or she authorizes the EEO Counselor to reveal it or he or she files a formal complaint. Spells out that EEO Counselors need to be familiar with: 1 Title VII's prohibition against sex discrimination, which includes discrimination on the basis of pregnancy, sexual orientation, and gender identity including transgender status ; 2 the Lilly Ledbetter Fair Pay Act of ; and 3 the Genetic Information Nondiscrimination Act of Provides further explanation of the purpose of the "limited inquiry" during the EEO counseling process.
Section V. Section VII. Section III A. Clarifies a requirement that EEO ADR programs must make available at least one ADR technique that allows for the meaningful participation of all involved parties, such as mediation, facilitation, or settlement conferences. Chapter 4: Procedures for Related Processes Provides additional information and case updates for processing mixed-case complaints.
0コメント