“Representing Federal Employees in Discrimination Cases” Part 5 – FADs, Hearings and Discovery
The following excerpt is part of a series on “Representing Federal Employees in Discrimination Cases” by James Weliky. Click here for more information.
FAD or Hearing
Upon receipt of the investigative file, the employee has several options. The employee may, within thirty days, request an immediate Final Agency Decision on the merits of her complaint (usually this will be a decision denying that the agency did anything wrong), which can then be appealed to the OFO. Or, the employee may, also within thirty days, request an administrative hearing before an administrative judge of the EEOC. It is most advisable to pursue the latter option. This is so because without the benefit of the hearing record, the OFO will most likely sustain the negative FAD. The employee can also opt out at this point.
If a hearing is requested, this begins a new period of discovery, administered now by the EEOC judge. During this period, the parties have a right to supplement the record through discovery conducted by the parties themselves, including through depositions, interrogatories (one set of 30 with no subparts), document requests, stipulations and requests for admission. Discovery is supposed to be completed within ninety days, but this deadline may be flexible depending on the inclination (or schedule) of the AJ. The AJ also provides the parties with an authorization to begin discovery, which then triggers a ten day deadline to exchange discovery requests, which in turn triggers a fifteen day deadline for response (this process and these deadlines may be flexible depending on the parties and the judge). Parties may make motions to compel, but must make them within five days after the expiration date for responding to the request. This last deadline may also be flexible, but the complainant’s attorney is advised to determine this before the deadline passes (of course). Sometimes AJ’s who are flexible about some of the aforementioned deadlines may be less flexible about the motion to compel deadline.
At the close of discovery, the parties may file a motion for findings of fact and conclusions of law without a hearing, effectively a motion for summary judgment. The AJ may also decide to make such findings on her or his own initiative. Although each AJ’s style is different, typically these motions will take the same form as those required in court. Whether a hearing on the motion for findings and conclusions is held is also up to the AJ’s discretion.
After the full administrative hearing, the AJ issues findings of fact and conclusions of law as to whether discrimination occurred, and will offer appropriate relief to the parties. Damages can include back pay with interest, “equitable” relief (reinstatement, promotion, requirement that agency cease and desist from discrimination) and compensatory damages. See West v. Gibson, 527 U.S. 212 (1999)(EEOC has power to award compensatory damages during administrative process). The EEOC may also award attorneys fees, except for claims under the ADEA or the Equal Pay Act.
The AJ’s findings are then transmitted to the agency, which has forty days to take “final action” on a complaint. The agency must issue a final order providing the employee: notice of whether it intends to fully implement the AJ’s decision; notice of complainant’s right to appeal to the OFO or to file in federal court; the names of the proper defendants; and the appropriate time limits. If the agency does not fully implement the judge’s decision, it must simultaneously file an appeal of the decision to the OFO, with a copy provided to the complainant. 29 C.F.R. 1614.110(a). As might be expected, the agency will almost never fully implement the (relatively rare) AJ’s decision finding discrimination. Should appeal be taken, the OFO grants substantial deference to the factual findings of the AJ, although conclusions of law are reviewed de novo. The OFO’s decision on an agency appeal is binding. The employee, however, is not barred from filing a federal court complaint even after she or he files an appeal to the OFO, as long as he or she does so within ninety days from a final EEOC decision or 180 days from the filing of the appeal if no decision has been issued.
 Note that the agency is required to provide a transcript of the hearing, at its expense.
 As this firm discovered in one of its cases, this can be a compelling reason not to go through with the hearing. In this case, we had brought claims against the agency for violation of the Rehabilitation Act and the ADEA. The AJ issued findings and conclusions dismissing the Rehabilitation Act claim, leaving us with the ADEA claim alone. Since it was clear that we would have to go to court to vindicate our Rehabilitation Act claim anyway, there seemed little point in continuing with the EEOC trial when there was no hope of our client receiving reimbursement for our efforts in that forum. Hence, we terminated proceedings at the EEOC and filed both claims in court.