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Federal Employees: You be the Judge


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COinNC  
#1 Posted : Monday, August 24, 2009 3:24:40 AM(UTC)
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Regarding a Federal EEOC: Does anyone have information regarding the granting of an Administrative Hearing by the EEOC-AJ? The agency issued a Motion to the AJ to move forward without a hearing and I have submitted the rebuttal(s) accordingly. This took place Jan 2009. What is the 180 day rule and when does it start? What course of action do I have?
MindInquiring  
#2 Posted : Tuesday, August 25, 2009 12:56:02 AM(UTC)
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quote:
Originally posted by COinNC:
Regarding a Federal EEOC: Does anyone have information regarding the granting of an Administrative Hearing by the EEOC-AJ? The agency issued a Motion to the AJ to move forward without a hearing and I have submitted the rebuttal(s) accordingly. This took place Jan 2009. What is the 180 day rule and when does it start? What course of action do I have?


Please email me at Underdosed@sbcglobal.net put FedSoup in the subject or I will delete your email
BIGPAPPA  
#3 Posted : Tuesday, August 25, 2009 6:43:26 AM(UTC)
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when you file a formal complaint with the eeo office at a federal agency they have 180 business days to have the case investigated. If the your case is not investigated in 180 business days you have the right to request a hearing with the EEOC in your district. What I did was that I filed on the 181 day to request my hearing and I did just fine. If you file for a hearing before 180 days you are not going to get the hearing. If you wait too long I.E two months after 180 day the agency can turn around and do a Final decision on their own. So it pays to pay detail attention time lines.

quote:
Originally posted by COinNC:
Regarding a Federal EEOC: Does anyone have information regarding the granting of an Administrative Hearing by the EEOC-AJ? The agency issued a Motion to the AJ to move forward without a hearing and I have submitted the rebuttal(s) accordingly. This took place Jan 2009. What is the 180 day rule and when does it start? What course of action do I have?
Wiznerd  
#4 Posted : Wednesday, August 26, 2009 6:12:18 AM(UTC)
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It's called a Summary Judgement. No hearing. The AJ reads the file (your case) and adjudicates it.
COinNC  
#5 Posted : Wednesday, August 26, 2009 9:35:03 PM(UTC)
COinNC

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Yes it is called a "summary judgment". The Question/Concern I have is - …Since, The Agency has issued a Motion (requesting a summary judgment) and I have issued my rebuttal to their motion (requesting a hearing). It is my understanding that the AJ will act first on The Agency's Motion (either move forward with Summary Judgment or allow the hearing) that I (the complainant) have requested. So that being said,... How long will it take the AJ to address "The Agency’s Jan 09 Motion for Summary Judgment and my rebuttal requesting a Hearing"? And how does the 180 Days apply here? Confused Confused Confused
Wiznerd  
#6 Posted : Wednesday, August 26, 2009 11:26:11 PM(UTC)
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I believe it is up to the AJ regardless of who asked for what at first, i.e, summary or hearing. All the AJ's are under pressure to ease the backlog of cases and will do anything to expedite it---hence the Summary Judgement. Having said that, the backlog of cases means more than likely, that you will not get a decision within 180 days. Once it is at EEOC or the district court level, the 180 day rule will fall by the wayside. However, I have seen some cases ruled within the timeframe. The EEO process is long and drawn out, and each case is different. Just gotta have patience and pay attention to any correspondence you get. Good Luck.

Since the agency and you asked for a decision in Jan 09, I would say that you should have something soon, if not by the end of the year.

Sorry, there is no way to determine what the AJ is going to do. You probably get a better answer from a crystal ball.
BIGPAPPA  
#7 Posted : Thursday, August 27, 2009 1:06:38 AM(UTC)
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The agency can not ask for a summery judgement when you do not have an AJ. At this point you have requested for a hearing "have you been given a acknowledgment statement from EEOC for your request of hearing yet? If you have not Pay no mind to your agency it sounds like they do not know what the devil they are doing.


quote:
Originally posted by COinNC:
Yes it is called a "summary judgment". The Question/Concern I have is - …Since, The Agency has issued a Motion (requesting a summary judgment) and I have issued my rebuttal to their motion (requesting a hearing). It is my understanding that the AJ will act first on The Agency's Motion (either move forward with Summary Judgment or allow the hearing) that I (the complainant) have requested. So that being said,... How long will it take the AJ to address "The Agency’s Jan 09 Motion for Summary Judgment and my rebuttal requesting a Hearing"? And how does the 180 Days apply here? Confused Confused Confused
BIGPAPPA  
#8 Posted : Thursday, August 27, 2009 6:01:27 AM(UTC)
BIGPAPPA

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Sanctions Upheld for Untimely Investigation. The Commission found that an AJ did not abuse her discretion when she issued a decision in favor of complainant as sanctions for the agency's failure to timely process and investigate the complaint in accordance with the Commission’s regulations. After expiration of the 180-day period from the date that he filed her formal complaint, complainant sought a hearing before an AJ, and the AJ ordered the agency to produce its records. The agency did not initiate an investigation until after complainant's hearing request and submitted the report of investigation a full month after the AJ Order. The AJ ordered complainant’s retroactive promotion and payment of $1,000.00 in nonpecuniary compensatory damages. On appeal, the agency argued that the sanctions were punitive, that the AJ abused her authority by imposing sanctions against the agency, and that the sanctions imposed were too severe a penalty for the agency’s mere failure to seek an extension of time from complainant. Citing the Commission's inherent power to protect its administrative processes from abuse and to ensure that agencies and complainants follow its regulations, the Commission affirmed the AJ's sanctions and her finding that the agency discriminated against complainant. Lawrence S. Lomax v. Department of Veterans Affairs, EEOC Appeal No. 0720070039 (October 2, 2007), request for reconsideration denied, EEOC Request No. 0520080115 (December 26, 2007).

quote:
Originally posted by COinNC:
Yes it is called a "summary judgment". The Question/Concern I have is - …Since, The Agency has issued a Motion (requesting a summary judgment) and I have issued my rebuttal to their motion (requesting a hearing). It is my understanding that the AJ will act first on The Agency's Motion (either move forward with Summary Judgment or allow the hearing) that I (the complainant) have requested. So that being said,... How long will it take the AJ to address "The Agency’s Jan 09 Motion for Summary Judgment and my rebuttal requesting a Hearing"? And how does the 180 Days apply here? Confused Confused Confused
cattig  
#9 Posted : Sunday, September 06, 2009 11:55:03 PM(UTC)
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To clear up some confusion, keep in mind two points:

1) The formal complaint and EEOC hearing process is an administrative remedy that Federal employees must pursue prior to seeking relief in Federal District Court; and,

2) The EEO Hearing process is an extension/continuation of the Investigative process, not an attack or evaluation of it; and,

3) Taking your complaint to Federal District Court is a very important decision not one to be taken lightly. The decision to do so could have significant ramifications if done incorrectly or at the wrong time or for the wrong reasons.

That being said, 29 CFR 1614 lays out the rules for the administrative complaint and hearing process for Federal Employees. Ernest Hadley's book on litigating Federal Sector EEO cases provides very thorough examination of these rules, with citation to supporting case law.

Generally speaking, and for non-mixed complaints/appeals, the Agency has 180 days from the date of the formal complaint to complete an investigation (assuming the Agency accepts the complaint for investigation).

If the Agency does not complete the investigation within 180 days (assuming they accepted the formal complaint for investigation), then the Complainant has the right to request a Final Agency Decision (FAD) or a hearing with an EEOC Administrative Judge. Which the Complainant requests depends largely on where he/she wants to go with his/her claim and many other considerations too numerous to discuss here.

The failure to investigate can be sanctionable, but it is my experience that useful sanctions for failure to investigate are neither common nor likely.

After the EEOC hearing request is made, and after the Acknowledgment Order is issued, the Agency can file a Motion for a Decision Without a Hearing. This motion is commonly referred to - incorrectly - as a Motion for Summary Judgment.

It has been my experience that Agency counsel will invariably file a "Motion for Decision Without a Hearing" in nearly every case, although the reasons are different in every case.

One reason could be to argue that there is no dispute of material fact which would require the Complainant to supplement the investigative record through testimony at an EEOC hearing. Another reason might be to eliminate some of the issues from the hearing process. A third reason could be to force the Complainant to lay out their case so that the Agency can assess possible liability. There are many more reasons these motions are filed.

The EEOC AJ can also issue a Decision without a Hearing if he/she (sua sponte - on his/her own or without motion by a party) believes that there is no material fact in dispute which would require a hearing to supplement the administrative record.

If the AJ grants the Motion for Decision without a hearing, or if he/she sua sponte dismisses the complaint without a hearing pursuant to 29 CFR 1614, et seq., the Complainant has certain appeal and/or judicial review rights which are far too complicated to discuss here.

There is no timeline for EEOC AJs to rule on Motions for Decisions without a Hearing. Some EEOC AJs take the motion under advisement pending the hearing on the merits. Some EEOC AJs rule on them quickly. Some AJs take a long time. Some use them as an opportunity to open up more substantive settlement negotiations. Keep in mind that the EEOC is very under-staffed, and the volume of complaints has spiked in recent years. It is more likely to expect a long wait before getting a response, particularly if no hearing has been set in your case when the Motion was filed.

There is another timeline that some posters in this thread are hinting at - the timeline to initiate a civil action in Federal District Court. This timeline varies GREATLY depending on what stage of the administrative remedy process a complaint is at, and what has happened (or not happened) in the formal complaint process.

I strongly encourage that Complainants read 29 CFR 1614.408, and seek competent legal counsel before filing in Federal District Court.

If a Complainant did not exhaust his/her administrative remedy, the case could well be dismissed from Fed. Dist. Court, without any way to go back and cure the failure.

This post is NOT legal advice. It is general information only. If you need legal advice, it is best to consult with an attorney.
luvdata  
#10 Posted : Monday, September 07, 2009 2:19:26 AM(UTC)
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To pick up on Chris' comment, if you file at District Court incorrectly, you lose your right to have your case heard.

Further, even if you have the opportunity to file in District Court, if you have not demonstrated your perseverance in administrative court, Article III judges will not look favorably upon you because you're taking their time and increasing their workload.

I extoll the benefits of District Court, but District Court is tough -- big fish, fast swimmers, and a couple of carnivores thrown in the tank too. On the other hand, from my own experience, administrative court (EEOC, MSPB) is tame, but generally useless other than for discovery.

(But take advantage of that discovery. Government agents know that administrative court is useless, so they'll say the most amazing things knowing that within the confines of that court, it doesn't matter what they say, they'll still win. I got some of the best material out of MSPB -- precious!)
freeageless  
#11 Posted : Monday, September 07, 2009 3:51:23 AM(UTC)
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I agree with Cattig on his point that Earnest Hadley's book on Litigating Federal Sector Employment cases is very good tool to have. I note that it is published by Dewey Publications, and is in my judgment one of the most comprehensive books on the subject. I do note that it is quite expensive. I believe that it is around $495.00. However, that is still a lot cheaper than paying legal fees. I do not agree with him that you need seek an attorney or hire an attorney before navigating the federal court process. Make sure that you read the local rules of the federal court that you are in, read the Federal Rules of Civil Procedure, the Federal Rules of Evidence, look up the cases the agency cites, file your rebuttals, don't miss the deadlines that you and the agency equally have to meet, and you are on your way. If you don't do that or are unwilling or unable to do that, then you probably do need to pay an attorney. Just make sure that you hire one who is an expert in federal employment discrimination law and federal employment litigation.
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