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Federal Employees: You be the Judge


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FedFunEmp  
#1 Posted : Monday, April 17, 2017 6:32:14 PM(UTC)
FedFunEmp

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Additional EEOC ROI TIPS-Here is what I think you can use as a tip to make sure your ROI has been completed adequately. Go through the MD-110 and look for KEY WORDS like “MUST”, “REQUIRED”, “SHOULD NOT”, etc. and make sure that has happened in your investigation. For example


1. Agencies are REQUIRED to complete investigations within the earlier of 180 days after the filing of the last complaint or 360 days after the filing of the original complaint. Regardless of amendment of or consolidation of complaints, the investigation shall be complete in not more than 360 days, unless there is a written extension of not more than 90 days.


2. Comparative evidence MUST be sought in every case alleging disparity in treatment on a basis protected by a law enforced by the Commission. Comparative evidence is evidence regarding how similarly situated persons outside of the complainant's protected groups were treated.


3. The complainant MUST receive a copy of the complaint file and a transcript of the hearing, if a hearing is held.


4. Relevant information that SHOULD NOT be redacted includes management and/or comparative employees'/applicants' names. Once a document is included in the complaint file, the complainant has a RIGHT TO the entire file. All parties including the agency representative, the complainant and his/her counsel, and the Administrative Judge should all have the same complaint file, either without redactions or containing the same redactions.


5. Within the appropriate time frame for finishing an investigation under 29 C.F.R. § 1614.108(e), and prior to issuance of the notice required by 29 C.F.R. § 1614.108(f), agencies are encouraged to allow complainants and their designated representatives an opportunity to examine the investigative file and to notify the agency, in writing, of any perceived deficiencies in the investigation prior to transferring the case to the Commission for a hearing or prior to taking a final action without a hearing. A copy of the complainant's notification to the agency of perceived deficiencies MUST be included in the investigative file together with a written description by the agency of the corrective action taken.


6. If the agency agrees with alleged deficiencies in the investigation as identified by the complainant, the agency MUST immediately correct them. If the investigation period has ended or is about to end, the agency should request agreement from the complainant to extend the investigation period pursuant to 29 C.F.R. § 1614.108(e). If the agency does not agree with the complainant's claimed deficiencies in the investigative file, the agency will prepare a statement explaining the rationale for the disagreement and include it in the investigative file along with the complainant's notice of claimed deficiencies.

The Process of Developing the Evidence Commission may draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information.

An adverse inference may be appropriate where the information is solely in the control of that party. Similarly, if a party fails to provide an adequate explanation for the failure to respond fully and in a timely manner to a request, the Administrative Judge may impose sanctions. Adverse inferences are appropriate when the information is solely in the control of that party. These sanctions include, but are not limited to, the authority to:


1. draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information;
2. consider the issues to which the requested information pertains to be established in favor of the opposing party;
3. exclude other evidence offered by the party failing to produce the requested information; and/or
4. recommend that a decision be entered in favor of the opposing party.


COPIED AND PASTED FROM MD-110 PLEASE PLEASE READ the MD-110


Will the Agency actually be held ACCOUNTABLE for following these rules or ACCOUNTABLE if they do not follow these rules, who knows? The jury is still out on this…..TBD!

I originally posted these tips in topics EEOC: The real reason why you have a slim chance of winning in EEOC and in EEOC SUCCESS STORIES-Help Encourage Others-Post Here Also, but have included them here, so they are readily available to those reading. PLEASE PLEASE READ the MD-110!
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DroneBee on 4/29/2017(UTC)
DroneBee  
#2 Posted : Tuesday, April 18, 2017 3:32:52 AM(UTC)

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Thanks for this information. Because of your help, I realized that the MD-110 stated that I "must" receive the hearing transcripts, requested the transcripts based on MD-110, and received the transcripts for free. I'm still waiting for the AJ decision.
FedFunEmp  
#3 Posted : Tuesday, April 18, 2017 10:18:04 AM(UTC)
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Originally Posted by: DroneBee Go to Quoted Post
Thanks for this information. Because of your help, I realized that the MD-110 stated that I "must" receive the hearing transcripts, requested the transcripts based on MD-110, and received the transcripts for free. I'm still waiting for the AJ decision.


Anytime! I try my very best to provide useful information.

As for the transcripts. Please pay very close attention to them as they are supposed to be verbatim. Make sure you are prepared just in case they are not. Remember, they are paid for by the agency you are filing a claim against. They review these transcripts FIRST and have AUTHORITY over what is documented and subsequently released.

Two Key Areas most do not know about are:

1. Comparative Evidence
“Comparative evidence MUST be sought in every case alleging disparity in treatment on a basis protected by a law enforced by the Commission.” The onus is one agency to seek comparative evidence and specify when and why they unable to present any. Often the AJ will say the complainant did not identify any comparators. Well, it is the agency’s responsibility to try to do so even if the complainant cannot.

2. Errors and missing information identified in your ROI
Complainants are allowed to review their ROI and identify any missing and or incorrect information and send it to the agency. The agency is REQUIRED to address these errors and missing information by either agreeing or disagreeing with what the complainant has identified as missing and or incorrect; thus, providing an explanation. The agency is REQUIRED to include their response in your file.

Edited by user Tuesday, April 18, 2017 7:13:52 PM(UTC)  | Reason: Not specified

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DroneBee on 4/29/2017(UTC)
DroneBee  
#4 Posted : Saturday, April 29, 2017 4:06:06 AM(UTC)

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I'll add that an EEOC complainant should also know 29 CFR Chapter XIV, especially 29 CFR 1614.

I've been waiting for my AJ to make a decision for months and I found this:
29 CFR 1614.109(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. The administrative judge shall send copies of the hearing record, including the transcript, and the decision to the parties. If an agency does not issue a final order within 40 days of receipt of the administrative judge's decision in accordance with 1614.110, then the decision of the administrative judge shall become the final action of the agency.

We are well past the 180 day mark! I hope he doesn't retire (like my previous AJ), or recuse himself (like two other previous AJs) - yes, all on the same EEOC case (I'm on my 4th AJ) - before he issues a decision. If only the EEOC followed the regulations!
FedFunEmp  
#5 Posted : Saturday, April 29, 2017 9:54:57 AM(UTC)
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Well I had an AJ and s/he did make a decision. This is why I provided those tips! They are based on things the AJ (who was assigned to my case) mainly did not do according to MD-110 requirements. I am not sure what is worse, your situation of waiting, or going through the process with an AJ who had already determined they were going to rule in favor of the agency no matter what evidence was brought forth and no matter how many lies you proved were not true. I did not have discovery even though it was stated I could. The AJ ignored just about all of my motions. No response! The AJ did not follow MD-110 requirements, case law, AND I have documentation AND RECORDINGS of this!

This is why I am completely baffled! How can someone have a RECORDING that clearly proves what the AJ said has taken place, did not take place, but I have to wait? It also proves the AJ and agency were non-compliant with MD-110 requirements and proves the AJ had already decided how s/he was going to rule before hearing or seeing anything from the complainant. My case is in appeal and has been in appeal for almost 2 years; so in actuality, I am like you waiting.

When I tell you a blatant disregard for the MD-110 requirements and doctored transcripts, please believe this happened and I have provided proof of it ALL. Now I am just curious to see how this will be addressed!

I refuse to believe this process can be that corrupt! Trying my best to hold onto HOPE!
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DroneBee on 4/29/2017(UTC)
DroneBee  
#6 Posted : Saturday, April 29, 2017 10:04:29 AM(UTC)

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Originally Posted by: FedFunEmp Go to Quoted Post
My case is in appeal and has been in appeal for almost 2 years; so in actuality, I am like you waiting.


Did you have an EEOC hearing or did the AJ decide on the record or through summary judgment? So, are you now at the Office of Federal Operations (OFO)?

FedFunEmp  
#7 Posted : Saturday, April 29, 2017 1:30:37 PM(UTC)
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Yes, for about 2 years and counting!

My EEOC process was bogus! I did everything I have provided in my TIPS, but the AJ and agency did not comply with MD-110 requirements. Now I am waiting on OFO appeal to respond. Like I said, I did not have discovery. If I did not do all that I have suggested (you all do) in my tips relating to the ROI, they would have said….”you could have done x,y,z, but you chose not to.” I know this because I have read a variety of EEOC appeals on ROI’s and other issues.

There was just a complete disregard for MD-110 “REQUIREMENTS” because I was pro-se. I am thinking this AJ thought I was not too smart based on a few lies said by the agency about me. Well, I was smart enough to record certain things to CYA b/c I knew I was not getting a fair shake at this EEOC process.

Anyway, based on how I handled my case and subsequent appeal, that should be enough evidence to at least warrant a thorough, factual, and impartial investigation b/c I did not have one. Actually, the way I handled my case should also be included as proof of pretext based on how my agency described me.

I believe even with all their lies, conflicting stories (that should have led to credibility concerns), and no discovery, I provided enough for a truly impartial person to rule in my favor. This is why I am HOLDING ONTO FAITH and HOPE! The bias was very obvious based on how my case was handled and a few other things. This was too egregious to just be overlooked. I should be a part of the 2% because I earned it throughout this entire process. Especially, had this process been a truly impartial one. Now let’s see if impartiality will come into effect in the OFO phase. Sorry if I sound arrogant and or crazy, but please believe me, I was up against a lot, presented the best case/rebuttal given ALL my constraints, and handled it extremely well with minimal help.

Again, I am praying on it, because it was so egregious!

Edited by user Saturday, April 29, 2017 1:55:29 PM(UTC)  | Reason: Not specified

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DroneBee on 5/1/2017(UTC)
FedFunEmp  
#8 Posted : Thursday, May 04, 2017 2:05:36 PM(UTC)
FedFunEmp

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Originally Posted by: DroneBee Go to Quoted Post
Originally Posted by: FedFunEmp Go to Quoted Post
My case is in appeal and has been in appeal for almost 2 years; so in actuality, I am like you waiting.


Did you have an EEOC hearing or did the AJ decide on the record or through summary judgment? So, are you now at the Office of Federal Operations (OFO)?



Happy to let you know that on 5/3/17, the EEOC OFO finally released their (Fiscal Year 2017, Volume 2) EEOC digest. These digests are scheduled to be released at the end of the quarter, but I am thinking the delay of this one (that was due March 31, 2017) may have something to do with staff changes due to the new administration.

Anyway, please read through these cases. They can help you during your EEOC process.
CLICK HERE: https://www.eeoc.gov/fed...gest/vol_2_fy17.cfm#hear

I am also happy to see there were some positive outcomes for complainants based on race as I have been told on numerous occasions, the EEOC views race complainants/cases as frivolous ones. There was also enforcements against agencies for breach of settlements.

My agenda is only to share valuable information to those of you who were discriminated against and did not receive the help you were supposed to receive from your agency EEO reps; to help those who cannot afford to pay for quality representation; and so you all know if your representation and AJ are doing the right thing as it relates to your case. My EEOC ROI tips are a way to keep your representation honest and a way to gauge their knowledge of the EEOC process.

Good Luck to you all and I pray to hear some good news for those of you who were discriminated against in some way, shape, or form! Keep pushing and continue to have HOPE!

NOTE: I quickly scanned a few appealed cases included in this volume 2 and some of the cases appear to be based on older cases than the appealed cases in volume 1. I have not gone through volume 2 in great detail yet. Just something I noticed as I recall the volume 1 cases seemed to be more recent.
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DroneBee on 5/7/2017(UTC)
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