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AFCop23  
#1 Posted : Wednesday, August 03, 2011 6:04:30 AM(UTC)
AFCop23

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According
to CFR Title 29 § 1614.109(i), the assigned Administrative Judge had 180 days to issue a decision on my complaint: 
 


(i) Decisions by
administrative judges. Unless the administrative judge makes a written
determination that good cause exists for extending the time for issuing a
decision, an administrative judge shall issue a decision on the complaint, and
shall order appropriate remedies and relief where discrimination is found,
within 180 days of receipt by the administrative judge of the complaint file from the agency…

A Federal Employee who files a complaint on day 46 will have the complaint dismissed for being untimely.  If the investigation is not complete on day 181, the complainant can file for a hearing.

So the question I am asking here is what does a person do when your Judge has missed his/her deadline according to regulation?  Shouldn't the case go in favor of the complainant?



rabbitdog99  
#2 Posted : Wednesday, August 03, 2011 1:41:14 PM(UTC)
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LOL  My experience is that time limits are only taken seriously when they apply you.

You can complain to
the judge and he/she will probably make a written determination that he/she needs more time.  Such a complaint will likely irritate
the judge, which is something you don't want to do since he/she is the one making the decision.



rabbitdog992011-08-03 21:48:28
Na  
#3 Posted : Friday, August 05, 2011 6:19:04 AM(UTC)
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I know that it is frustrating, but your best bet is to wait it out.  I may be mistaken, but I believe you can now take your case to court.  Unfortunately after you've paid the filing fees etc., chances are that the judge will remand the case to EEOC to complete the administrative process.  The net result is that you're back where you were and you lost your place in line.  That is the reality of dealing with EEOC.
Inquire  
#4 Posted : Saturday, August 06, 2011 8:09:17 AM(UTC)
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rabbitdog99 wrote:
LOL  My experience is that time limits are only taken seriously when they apply you.

You can complain to the judge and he/she will probably make a written determination that he/she needs more time.  Such a complaint will likely irritate the judge, which is something you don't want to do since he/she is the one making the decision.

".. time limits are only taken seriously when they apply you."   SO TRUE....
"Great danger lies in the notion that we can reason with evil."
RadarVector  
#5 Posted : Thursday, November 10, 2011 1:22:18 AM(UTC)
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I would like to hear more input on this, as well. In my case, the files were delivered to the AJ last October (2010), and the hearing was held mid-May (2011).  I am at 180 days from the hearing, and counting . . .

I have some belief that the longer the wait, the better, given that it is far easier to dismiss the complaint (burden of proof is clearly placed on the complainant), but at 6 months plus, I am starting to get anxious.  My counsel is frustrated with this delay, as well, but has never gone through the federal process (only state and private).

What is the average wait for "negative" outcomes?
What is the average wait for "positive" outcomes?

Also, has anyone EVER had an agency accept the AJ's decision and incorporate it into the FAD, or does the agency always appeal to the OFO "as a matter of practice", regardless?

Thanks,

RV



Back4More  
#6 Posted : Friday, November 25, 2011 5:15:40 AM(UTC)
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RV,


 


Having never received a positive outcome from an AJ, I don’t know the average wait for such an outcome.  My average for a negative outcome is 378 days.  I have had the experience of the agency accepting the AJ’s decision and incorporating that into the FAD.  Without an AJ decision, the agency tends to write the FAD as if nothing was learned during the hearing process.
RadarVector  
#7 Posted : Friday, November 25, 2011 8:29:45 AM(UTC)
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Thanks for the reply. 

Sorry to hear that your results have been only negative.  I do feel a positive outcome will eventually be forthcoming, based somewhat on the closing comments from the AJ, and the input from my attorney.  I even believe the AJ has cleared the way to re-open facts prior to this process, and allow additional damages, given that the agency admitted it has violated the terms of the previous ADR.

I have studied the AJ Handbook and documents from the DoT's website, which provide 180 total to complete the entire process, but that has fallen long by the wayside.  I am currently at 190 days from the hearing, and over a year from the agency's ROI being submitted to the EEOC.

If I may ask you, please.  Now that my hearing is outside of the parameters, is it likely the agency will issue an FAD without the decision?  Beyond that, at what point should I direct my attorney to file in District Court?

Thanks for responding, and have a good weekend.

RV

ms22divine  
#8 Posted : Sunday, November 27, 2011 7:43:19 AM(UTC)
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    Greetings,

     Time limits really do not apply to judges irregardless of what the judges manual states. Moreover, they do apply to the Complainant unless you formally request a motion for an extension. The only time lines that the EEOC keep are yours - for better or worse. The judge is not going to get slapped on the wrists with consequences. No way. You - you are a different story, but note there are exceptions such as tolling, waving, estoppel et al. Check for all the exceptions to the rule. Hope this helps some.


Best Wishes!

Mary Elizabeth
RadarVector  
#9 Posted : Monday, November 28, 2011 12:03:42 AM(UTC)
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Thanks for the reply, Mary Elizabeth.

I had to google the terms you mentioned.  I must say I was surprised at how casual the agency has been with deadlines, too.  Twice I had to submit Motions to Compel.  In fact, it wasn't until I secured legal representation that the agency seemed to do anything beyond cursory response.  I was glad that the AJ came down upon the agency's counsel when they missed their deadlines, and warned them it could affect her decision.

I am most concerned right now that the agency will "get wise," and realize they can issue their FAD at any time, since we are outside the 180 days.  Has anyone out there had this happen?  Seems it would be unfair, and maybe a bad tactical move, but it would force me to file in District Court.

A question for you, ME.  Would it be a poor move if I contacted the AJ to ask for a time-frame for decision?  I personally do not believe she would "hold it against me," but still I am nervous to do so.

Thanks again,

Andy

ms22divine  
#10 Posted : Monday, November 28, 2011 12:36:42 AM(UTC)
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Dear Andy,

   Please send me your telephone number and best time to reach you. I will call you back. My e-mail is: honorablejudgebullock@gmail.com.

    Respectfully submitted,

    Mary Elizabeth
ms22divine  
#11 Posted : Monday, November 28, 2011 12:41:46 AM(UTC)
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Dear Andy,

   It is complicated especially since I do not know the stage of your complaint.
   Contact me at honorablejudgebullock@gnail.com.

     Best Wishes!

     Mary Elizabeth
Barringtonii  
#12 Posted : Saturday, December 10, 2011 12:58:59 AM(UTC)
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In Myvett v. Court Serv. & Offender Supervision Agency,10 the Commission found that the AJ properly sanctioned the Agency by issuing a default judgment in favor of Complainant. Complainant filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him on the bases of his sex and prior EEO activity when it placed him in absent without leave (AWOL) status and suspended him. Following an investigation, Complainant requested an administrative hearing. In August 2007, the AJ issued an Order directing the Agency to produce the complaint file, including the report of investigation (ROI) within 15 days. The Order indicated that the Agency could be sanctioned if it did not provide the requested material. The Agency forwarded an incomplete complaint file which did not include the ROI, and the AJ issued an Order to Complete Investigation in September 2007. The Order provided the Agency with 45 days in which to complete the investigation. The Agency subsequently requested an extension of time in December 2007, and then issued a final decision in January 2008 dismissing most of the complaint. The AJ then issued an Order to rescind the final Agency decision, noting that the Agency is precluded from dismissing a complaint after the Complainant has properly requested a hearing. The Agency did rescind the final decision, but did not submit the ROI. In July 2008, the AJ issued a Show Cause Order requiring the Agency to show cause why it had failed to comply with his Orders to produce a completed ROI. The Agency ultimately submitted a copy of the ROI at that time. Subsequently, the AJ issued a decision noting that while Complainant filed his formal complaint in December 2006, the Agency did not produce a copy of the ROI until July 2008. Further, the Agency failed to comply with the AJ’s Orders instructing it to produce the ROI, and did not in fact begin the investigation until March 2008. The AJ found that the Agency did not show good cause for the delay in producing the ROI, and its delay constituted an egregious abuse of the process. Therefore, the AJ concluded that the imposition of sanctions was warranted, and entered a default judgment in Complainant’s favor with regard to the AWOL charge and suspension.11 On appeal, the Commission concluded that the AJ’s findings were supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies and laws. Further, the Commission determined that the record supported the AJ’s determination that the Agency did not show good cause for the delay in the production of the ROI.
Barringtonii  
#13 Posted : Saturday, December 10, 2011 1:01:33 AM(UTC)
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that should help you.
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