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Federal EEO process: Should you request an EEOC hearing?

After your federal agency sends you the Report of Investigation (ROI) in your EEO case, you have several options, including to request a hearing before a U.S. Equal Employment Opportunity Commission (EEOC) administrative judge.  Here are some things to consider when you request an EEOC hearing:

What is an EEOC hearing?

An EEOC hearing is an opportunity to present your case to an EEOC administrative judge.  However, there’s no guarantee that you’ll get your “day in court.”  The judge will decide whether to schedule an in-person hearing.  In many cases, the judge issues a decision based on written legal arguments and evidence submitted by the parties.

What are the steps in the hearing process?

The hearing process includes multiple steps:

How do you request an EEOC hearing?

Federal agencies usually provide a copy of the hearing request form with the ROI.  If you want to request an EEOC hearing, you must:

  • Submit your request to EEOC within 30 days of receiving the ROI;
  • Send the request to EEOC through the EEOC’s online Public Portal, by fax, or by mail; and
  • Send a copy of your request to the agency.

After you request a hearing, the EEOC will assign your case to a judge.  Depending on your location and the judges’ workloads, it may take several months, or even a year, for the EEOC to assign a judge.

What happens during the initial status conference?

Once assigned, the judge will issue an order.  Read the order carefully because it may ask you to submit information or documents by certain dates and may also provide information for an initial teleconference with the judge, you, your attorney, if you have one, and the agency’s attorney.

During the initial teleconference, you should be prepared to discuss:

  • If and why you need to conduct discovery
  • The status of any settlement negotiations
  • Whether you are interested in mediation (a settlement conference)

You should also have your calendar available so that the judge can set deadlines for filings and meetings in the case.

If you have an attorney, he/she will speak on your behalf.  For example, if you do want discovery, your attorney can explain to the judge why you need discovery and what type of information and documents you hope to get through the discovery process.

Do you need discovery for an EEOC hearing?

In most cases, the judge will allow the parties to conduct discovery.  During discovery, each party may ask the other to answer a list of questions and provide certain documents.  For example, if you believe the agency discriminated against you based on your race by not selecting you for a job, you could ask the agency for any documents relating to the selection process.  These documents may include copies of any applications that were submitted, interview questions and answers, notes from the hiring manager and interviewers, and offer letters.  In your list of questions (i.e., “interrogatories”), you could ask the agency to provide the race of each applicant and each interviewer, who was involved in making the hiring decision, and why the agency picked someone else instead of you.  The parties may also take depositions (interviews, under oath, before a court reporter) of important witnesses in the case.  The discovery process for an EEOC hearing may take four to six months, or even longer, depending on the the number of claims and witnesses and other circumstances.

What is summary judgment in an EEOC case?

After discovery ends, the agency will file a motion for summary judgment.  This is a request for the judge to decide in favor of the agency without conducting a hearing.  The motion is a lengthy, written legal argument that refers to evidence from discovery and the ROI.  If this happens, you will have 14 days to file an opposition.  Afterwards, the judge will issue a decision (typically several weeks or months) with two possible outcomes:

  • The judge grants the agency’s motion: If the judge grants the motion, the agency wins the case, and there won’t be an in-person hearing. In short, the judge will grant the motion if he/she concludes that, based on the evidence, there’s really no way you can win the case.
  • The judge denies the motion: If the judge denies the motion, he/she will schedule a hearing.  This doesn’t mean you win; it just means the case will continue.

What is an EEOC prehearing conference?

The judge frequently holds a prehearing teleconference to discuss the logistics of the hearing and to decide which witnesses may testify.  Prior to the prehearing conference, the judge will likely require you and the agency to submit a list of witnesses you would like to call and a list of exhibits you would like to present at the hearing.

What happens at an EEOC hearing?

In most cases, hearings are held in-person in a conference room at the EEOC office.  However, the judge may conduct the hearing by video conference or telephone, depending on the circumstances.  The judge, a court reporter, the agency attorney(s), you, and your attorney will attend the hearing.

The hearing will begin with each party making a short opening statement about its view of the case.  Then, you (or your attorney) may call your witnesses, one at a time.  After you question each witness, the agency has an opportunity to cross-examine the witness.  The judge may also ask questions.  After you finish questioning all of your witnesses, the agency may call any additional witnesses.  You may question agency witnesses after the agency attorney finishes his/her questions.  At the end of the hearing, each party will likely have the opportunity to make a closing statement.

It’s very rare for a judge to make a decision on the case at the hearing.  Usually, the judge will issue a detailed written decision several weeks or even months after the hearing.  The EEOC will send a copy of the decision to you and to the agency.

Can you appeal the decision?

The agency will issue a Final Agency Decision (FAD) that says whether the agency does or does not agree with the judge’s decision.  The agency nearly always agrees with the judge.  The FAD will include information about your rights to appeal the decision.  If you disagree with the FAD, you may file an appeal with the EEOC Office of Federal Operations (OFO), or you may file a lawsuit in federal district court.

How can an attorney help with an EEOC hearing?

Hiring an attorney for your EEOC hearing may greatly increase your chance of success.  Your lawyer will represent you during status conferences with the judge and will communicate with the agency’s representative.  Your attorney will prepare discovery requests for information and documents and may take depositions of agency witnesses.  Most importantly, your lawyer will file and respond to motions in the case and will question witnesses and present documents at the hearing with the judge.

If you need experienced legal representation for a federal EEO case, Alan Lescht and Associates, P.C., can help.  Our attorneys know what information you need to collect in discovery, how to respond to motions filed by the agency, and how to present evidence and witnesses at the hearing.  We represent federal employees throughout the EEO process, at hearings before EEOC administrative judges, in appeals before the Office of Federal Operations, and in federal litigation of discrimination and retaliation cases.

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