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  • Writer's pictureKevin Crayon II

The EEOC Hearing Request Phase (For Federal Employees)

Updated: Jan 12, 2022

You received your EEO Report of Investigation ("ROI"), now what? When the EEO investigation concludes, you will receive the ROI a Notice of Rights. The notice will give you 30 days to choose which route you wish to take. See 29 C.F.R. § 1614.108(e).

For more information about this fork in the road, see this video.

For more information about the 7 stages of an EEO case, see this video below.

The rest of this article will describe the EEOC hearing for federal employees who choose this option per 29 C.F.R. § 1614.109 and MD-110, Chapter 7 ("Hearings").

Overview of the EEOC Hearing Process

Federal employees have the unique advantage of having their cases heard by EEOC administrative judges ("AJ's"). As discussed further below, this process begins after you receive your ROI and request a hearing.

However, much like typical litigation, you do not immediately go to "trial" or, in this instance, a final hearing. The EEOC hearing process is much like federal litigation where the parties can file various motions, engage in discovery procedures, settle the case, have multiple conferences with the judge, deal with evidence and witnesses, or dispose of the case on summary judgment before the matter ever gets to a final hearing. For more information on how long the EEOC process can take, click here.

This article will describe the typical flow from beginning to end of the hearing request phase. This article includes videos relevant to their respective stages, and links and resources. You should refer back to this article often as you proceed through these various stages.

While this overview is based on our experience, you should be mindful, of course, that your judge will determine how your case is processed, and you should should carefully follow the orders of your judge to avoid being sanctioned (punished) and having your case dismissed.

Step 1: Request a Hearing

You should file your EEOC hearing request online using the EEOC Public Portal. Click Here. Be sure to follow the exact instructions that are in your Notice of Rights that come with your ROI. You should also refer to the EEOC's published guidance on how to request a hearing here.

If you have a representative or an attorney, you have to file your hearing request online and enter your representative's name into the system. This will send your representative a confirmation that will allow your representative to access the portal and file documents on your behalf.

Alternative Dispute Resolution

Prior to the judge issuing orders, you may be given the option (or you may be ordered) to engage in alternative dispute resolution ("ADR"), including mediations and settlement conferences. For more information about ADR or mediations, click on the hyperlinks.

Step 2: The Judge Issues Orders

The first order that a judge typically issues is an Acknowledge and Order which requires you to file a Preliminary Case Information (PCI) Report.

This PCI report informs the judge whether claims were dismissed during the formal complaint and investigation stage. The report also informs the judge whether you have any documents or witness statements that were not included in the ROI. Please note that this does not prevent you from seeking or providing further evidence during the pre-hearing process. The report informs the judge whether you have filed any union-related grievances on the same issues. Lastly, the report informs the judge whether you have any cases or potential cases appealable to the Merit Systems Protection Board ("MSPB") for for wrongful removal cases, demotions, and other certain adverse actions for certain employees.

For more information about this initial order and requirement, see this video.

The second order you may receive is an Order to Attend Initial Status Conference, or some similar order setting forward prehearing status conferences and/or pre-hearing deadlines.

If you have an Initial Status Conference, which is telephonic, it will include you, your attorney, the Agency attorney, and the judge. A laundry list of issues will be discussed, such as settlement, discovery procedures, the issues, and pre-hearing deadlines. Therefore, you will want to prepare for these items before the conference. If the judge does not conduct an initial conference, the judge will set out the tasks/deadlines in his or her initial order.

For more information about this type of order. See this video.

Step 3: Discovery

If the judge authorizes discovery in your case, he or she will set deadlines and parameters for you to begin the process of gathering evidence.

What is discovery? Discovery is a legal process that allows the parties to gather evidence and information. In discovery, you can request documents, evidence, information, answers to questions (Interrogatories), and admissions and denials. You can also conduct depositions (sworn testimony) of witnesses and parties. In short, discovery helps the parties assess a case and prepare for the final hearing.

For more information about the discovery process, see this video.

Step 4: Motion for Summary Judgment

You want your day in court? Well, you may not get it if the Agency has its way. A Motion for Summary Judgment is a request typically filed by the Agency/Defendant (although a Plaintiff/Complainant can file one too) asking the judge to render a decision without a hearing. That's right, after you've waited all this time, it is possible that you may never get your day in court.

The Agency typically files this motion at the close of the discovery period. Unless otherwise ordered, you only have 15 days to file a response. See 29 C.F.R. § 1614.109(g)

When the Agency files the motion, it is an attempt to say that you cannot prove the legal elements of your case, and that your case should be summarily decided in the Agency's favor without a hearing. This is essentially a dismissal of your case.

We file a legal argument opposing the motion, and the judge decides. If the judge decides in favor of the Agency, then your case is dismissed and your appeal rights will follow. If the judge denies the Agency's motion, then the case proceeds.

For more information about this motion, see this video.

Step 5: Pre-hearing Deadlines

At some point, the judge will set your final pre-hearing tasks, such as the submission of a pre-hearing report or a list of proposed exhibits, witnesses, and facts. The judge will also set a pre-hearing conference where issues will be discussed such as settlement, the approval of witnesses, exhibits, and the final confirmed hearing date and location.

Step 6: The Hearing

Finally, your day has arrived. Hearings typically last 1-2 full days. The hearing is usually located at the Agency's location because of access to witnesses and government employees. Post Covid-19, however, hearings have been held virtually via web-based platforms.

The judge and the parties attend the hearing, which is held in private and not open to the general public. A court reporter is present and swears witnesses in. Evidence and testimony are presented by each side, followed by closing arguments.

At the conclusion of the hearing, here again is another long limbo period where we wait on the judge's next move. How long does a decision take? Sometimes the judge renders the decision right away, but usually it comes after the hearing. Unfortunately, some judges take up to a year or longer to render a decision!

Step 7: Damages and Remedies - Compensation Time

So you won your case! Congratulations. Now, it's time to determine what you get for all your efforts. Sometimes judges will hear evidence of your damages at the same hearing described above. Therefore, the judge's decision will be a final decision on liability and damages.

Other judges will "bifurcate" or split your hearing into two parts. This means his initial decision will hold the Agency liable, and a second hearing will be to determine your damages.

In either event, you will be entitled to a range of compensation which depends on the type of case you have.

For more information about damages and remedies, see this video.

Get Paid or Appeal

After the judge issues a final judgment or dismissal, the Agency issues a Final Agency Action where it determines whether it will adopt and implement and comply with the judge's decision, or appeal. This last Agency order or Final Agency Action should provide you a notice of rights and further guidance and instructions regarding your deadlines and instructions for filing an appeal.

If you decide to appeal to the EEOC, you will appeal to the EEOC's Office of Federal Operations ("OFO") located in Washington, D.C. per the regulations located at 29 C.F.R. 1614, Subpart D (Appeals). For appeals, see EEOC's guidance here, and MD-110, Chapter 9 (Appeals).

Similar to filing a hearing request, you should follow the judge's instructions, and the agency's instructions, and timely file your request online using the EEOC Public Portal here. You should review the EEOC's guidance on filing an online appeal here.

Your appeal consists of two parts: The Notice of Appeal, and the Statement in Support of Appeal. The Notice of Appeal is the first part of your appeal that you should file online as described above and in accordance with the instructions provided in your notice of rights. The Statement in Support of Appeal (AKA "argument," or "brief") is due within 30 days of you filing your notice of appeal.

After you receive a decision from the OFO, this decision becomes final unless either party files a request for reconsideration. If you do not prevail on a final decision from the OFO, you may file a civil action in federal court.

For more information about appeals, see this video here.

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