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Federal Employees: You be the Judge


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fatboy  
#1 Posted : Thursday, April 11, 2019 3:58:38 PM(UTC)
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Investigation done consulted attorney who said I had a good case but not a big one so I need to go it alone or with minimal help. I see most choose hearing instead of final decision, I assume this is because the final decision is made by an EEOC beaurocrat not a Judge? Any advise and save your breath I'm not dropping anything I am ready to get out anyway, and am numb to the retaliation. I can live with a negative decision by the judge. I don't believe the agency attorney will let it get that far.
TheRealOrange  
#2 Posted : Friday, April 12, 2019 2:31:12 AM(UTC)
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Originally Posted by: fatboy Go to Quoted Post
Investigation done consulted attorney who said I had a good case but not a big one so I need to go it alone or with minimal help. I see most choose hearing instead of final decision, I assume this is because the final decision is made by an EEOC beaurocrat not a Judge? Any advise and save your breath I'm not dropping anything I am ready to get out anyway, and am numb to the retaliation. I can live with a negative decision by the judge. I don't believe the agency attorney will let it get that far.

You should take a look at the general process at the EEOC website: https://www.eeoc.gov/fed...s/complaint_overview.cfm . The "final decision" is the Final Agency Decision (FAD). The FAD is a written decision on a complaint of discrimination that is made by the agency (usually the EEO office), without a hearing before an Administrative Judge. The agency will issue its findings based on the claims raised, and if discrimination is found, will issue a remedy. If you request a hearing, an EEOC Administrative Judge will conduct the hearing, make a decision, and order relief if discrimination is found.

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fatboy on 4/12/2019(UTC)
frankgonzalez  
#3 Posted : Friday, April 12, 2019 3:42:46 AM(UTC)
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TheRealOrange covered the basic differences.

Another thing to consider is that if you choose a hearing you have discovery. This allows you to gather more evidence (or probe deeper) based on what the investigation discovered. So if the investigation failed to gather key items (such as the documents involved in a selection action if the complaint is based on a non-selection), you can ask for them in discovery. You also get to request some interrogatories (written responses to your questions), and depositions (verbal responses to your questions..and unlike the interrogatories, you can expand on questions based on responses and drop questions you realize are not worth pursuing based on responses you have gotten). Note, both are going to be limited by the AJ, so make sure you can justify more if you need more (ie don't ask for 100 interrogatories and 35 depositions...especially on simple non-selection case for example). And even for the ones you do ask for, be able to articulate what you expect to get from them (ie. Mr. Manager was the selection official, and chair of the interview panel and therefore knows what occurred in their discussions. Ms. HR representative was the HR adviser to the selecting official, and can articulate how the process should have occurred and if there were any deviations from it. She also can provide the policy references for hiring actions by the agency. Ms. Panel Member was part of the interview panel and can speak to the discussions the panel had). You can also ask for missing items that should have been in the investigative file (and if they fail to provide without a legitimate reason, request the AJ for sanctions).

NOTE: for the depositions, you have to pay for the court reporter for the ones you conduct and pay for copies you want (and you want copies of each deposition you conduct, and will want a copy of your deposition conducted by the agency (so you have it for reference). Expect to pay few $100 of dollars for the court reporter (how much will depend on the length of time and how much needs to be typed up), and budget another few $100 for the copies. Also, there is a filing fee. If you are broke, you can request to file "in forma pauperis" (basically "as a pauper") and the AJ can waive the filing fee. If you are going it alone (pro se), the AJ will be lenient to an extent as you are not a lawyer...but only so far. So try to be as responsive as possible to their orders and schedule.

Of course, expect to have to complete an interrogatory and be deposed by the agency counsel yourself if you select a hearing.

Discovery is where you are looking for contradictions by witnesses vs their previous statements and with the evidence (don't be petty though...if one person said "we interviewed 10 people" but the list showed 11, and it has been the typical 2-3 years ago the event occurred by the time you get a Hearing AJ assigned, and discovery commences...then that lapse in recall is not significant. If they all said "we never interviewed the complainant" and yet the record shows otherwise, and you have evidence they did, then that may be useful to impeach their testimony or at least get them declared not credible by the AJ).

And, if you get a Final Agency Decision (AKA FAD), and appeal it to the EEOC/OFO and then to the Federal District Court...You do NOT get to have discovery. Any further decision is based solely on the record used to make the FAD and the FAD itself.

Just some things to consider when making your choice.

Edited by user Friday, April 12, 2019 3:51:41 AM(UTC)  | Reason: Not specified

You should have voted Cthulu...the greatest of all Evils
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fatboy on 4/12/2019(UTC)
fatboy  
#4 Posted : Friday, April 12, 2019 4:51:19 PM(UTC)
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thanks to all. I will view that web address this WE. I think based on what I've heard the hearing will be best because of the discovery aspect. So far I have 2 significant lies that I can prove easily these weren't little ones and it caused me documented permanent injury. The supervisor made flailing statements, in her affidavit and she listed names of people who witnessed something that never happened, but there were no statements from them or anyone to corroborate her allegations. I believe if I can get statements from them her whole argument will be shot down, and this should show several more lies she made in her sworn statement.

Is the Judge likely to take 3 significant lies with a grain of salt or could this be significant and considered perjury?

Final question will I be able to correct simple mistakes or misunderstandings in my own statement before discovery? I don't want the agency lawyers to twist things around and would like to correct them beforehand.

nightchop  
#5 Posted : Friday, April 12, 2019 4:56:42 PM(UTC)

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Originally Posted by: fatboy Go to Quoted Post
save your breath I'm not dropping anything I am ready to get out anyway, and am numb to the retaliation. I can live with a negative decision by the judge.



I'm so glad you said this. It's really unhelpful when people asking for advice get responses that are discouraging. If someone has come here seeking assistance on the best way to proceed, one should assume they're dedicated to seeing the process through. I am glad you are sticking up for yourself, regardless of the outcome. That is what builds character and maintains your self confidence and esteem. It is better to be respected than liked, especially in situations where you are seeking to remedy an injustice done to you. It's not a fair fight, so there's no dishonor in "losing". Best of luck to you!
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fatboy on 4/17/2019(UTC), emrlddragon on 5/24/2019(UTC), EFDICKY on 10/26/2019(UTC)
frankgonzalez  
#6 Posted : Monday, April 15, 2019 4:01:21 AM(UTC)
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Originally Posted by: fatboy Go to Quoted Post
thanks to all. I will view that web address this WE. I think based on what I've heard the hearing will be best because of the discovery aspect. So far I have 2 significant lies that I can prove easily these weren't little ones and it caused me documented permanent injury. The supervisor made flailing statements, in her affidavit and she listed names of people who witnessed something that never happened, but there were no statements from them or anyone to corroborate her allegations. I believe if I can get statements from them her whole argument will be shot down, and this should show several more lies she made in her sworn statement.

Is the Judge likely to take 3 significant lies with a grain of salt or could this be significant and considered perjury?

Final question will I be able to correct simple mistakes or misunderstandings in my own statement before discovery? I don't want the agency lawyers to twist things around and would like to correct them beforehand.

Final question first: If you just got the ROI, then you can send something for inclusion. However, if too much time has passed, then you may be too late. If the mistakes are simple as in "On Tuesday 18 April 2018, supv X said...." when you really meant Wednesday 18 April or Tuesday 17 April...then, no harm exists. If you said, I think JohnZ overheard Supv X yelling at me as JohnZ's cubical is outside Supv X's office, but it turned out JohnZ was on leave that day...no harm exists. However, beyond things like this, then the agency will use your words to attack your credibility, so you need to be able to explain any inconsistencies or errors you made.

That said, if the witnesses you want are still employees of the agency you can get their statements one of two ways. You can get affidavits from them to submit during the hearing (providing copies to the agency rep prior to submission OR you can get them via interrogatories or depositions. Pros and cons with both methods, so you need to decide what works best for you.

And remember, what you think may be significant lies may not be thought of the same by the AJ. And what you think of as simple mistakes or misunderstandings may be seem as major issues by the AJ.

So, the stronger your evidence the better. The burden of proof is on you not the agency.

You should have voted Cthulu...the greatest of all Evils
thanks 1 user thanked frankgonzalez for this useful post.
fatboy on 4/29/2019(UTC)
DroneBee  
#7 Posted : Saturday, May 4, 2019 2:49:38 AM(UTC)

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There is some good advice above. I would add that the entire process is not a process. Everyone works for the agency - the EEOC, the AJ, the EEOC/OFO, etc.

Originally Posted by: fatboy Go to Quoted Post
Investigation done consulted attorney who said I had a good case but not a big one so I need to go it alone or with minimal help.

This is strange to me. An attorney would take the case if s/he thought it was a winner, regardless if it was a "big one" or not. S/he would still be paid by you.

Originally Posted by: fatboy Go to Quoted Post
I see most choose hearing instead of final decision, I assume this is because the final decision is made by an EEOC beaurocrat not a Judge?

No, all decisions are made by the agency - Final Agency Decision (FAD).

Some choose to go up to the hearing stage, but not go through the hearing. This is a good decision if you plan to go to court. You would go through discovery (stated above), get all the documents for free (except depositions - see above), then DON'T let the AJ make a decision (which will be in the agency's favor - see https://www.eeoc.gov/federal/reports/fsp2014/ - table 15 - 99% in cases the AJ found no discrimination. See https://www.eeoc.gov/fed...rts/fsp2014/profiles.cfm and you may find your agency's EEOC results. Then, the complainant asks for a FAD. To go to court, you must show you've exhausted the EEOC system; the FAD is your proof. You then take all this information and go to real court. I don't think the stats are much better, but it has been shown that having an attorney and not having an attorney isn't statistically different - probably because most lose at court as well as in the EEOC system.

If you choose to go through the AJ hearing, then the AJ will issue a decision, which can take years. Even after the AJ issues a decision, it still goes to the agency. The agency issues a FAD. If the AJ decides for you (0.x% of the time), the agency can not follow the AJ decision and state this in the FAD - then you could bring this to the EEOC/OFO. If the AJ decides against you, then the agency will agree with the AJ and stat this in the FAD - you could then go to the EEOC/OFO. (Or go to court instead of the EEOC/OFO.) In all cases, all roads point to the FAD - the agency makes the final decision.


Originally Posted by: fatboy Go to Quoted Post
Any advise and save your breath I'm not dropping anything I am ready to get out anyway, and am numb to the retaliation.

Then great! Because the agency is doing everything it can right now to get you out. Get ready for the onslaught!

Originally Posted by: fatboy Go to Quoted Post
I can live with a negative decision by the judge.

Good, because that's what you will get (99.x% chance of losing).

Originally Posted by: fatboy Go to Quoted Post
I don't believe the agency attorney will let it get that far.

Think again. The agency attorney works for the agency and gets the same pay whether there is a case or not. Plus the agency attorney has lackies who make copies, etc., and gets face-time with higher officials because of you. You are painted as a complete lunatic - regardless if everyone in the room knows that you were horrendously wronged - they will circle the wagons around the oppressor and drag you through the mud. The agency attorney's goal is to harm you as much as possible - mentally, financially, physically, spiritually. They are pure evil who could never work for a legitimate firm - they work for your agency against minorities, females, handicapped people, veterans, etc. The few who can no longer pursue evil end up...working for firms fighting EEOC cases.

I do wish you the best - I've been through it all. God Bless.

frankgonzalez  
#8 Posted : Monday, May 6, 2019 5:15:55 AM(UTC)
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Please take DroneBee's words with a fair bit of salt. The Bee has flown past cynical and is in a place where there is little good to be found.

Yes, most cases in court are found for the agency. This does not mean an issue does/did not exist, only that it does not meet the definition of discrimination under the law. Add in most cases where it looks like the agency has a slim chance of success in court, they will try and settle first, you can see why the results are poor for complainants.

The EEO offices, the EEOC and the courts are not out to harm complainants. There are plenty who waste the time of the process and people by bringing cases that are frivolous, or are in the wrong venue or are untimely (because now they are being held accountable, they bring up something from 2 supervisors and 5 years ago) and so on. The cases with some meat tend to be successful (especially if you include those that settle). The agency's attorneys are there to defend the agency...and sometimes they are the very ones the Bee says end up working for firms fighting EEOC cases as those same firms will also work for an agency if hired. Attorneys prosecute cases on behalf of their clients to the best of their ability. If they aren't aggressive on your behalf, then find a new one.

I've seen the EEO process from every side...Counselor, Mediator, Complainant, FAD writer. The only time I was biased was as the complainant...and even then, I used my lawyer to ensure I was being logical about my claims. My hearing was scheduled (we had completed discovery, to include depositions) and the agency decided then to see if we could settle. We negotiated what was acceptable to me, and settled the complaint. I am in a better place (agency and position) than if I had gone back to the agency I filed against. I believe I would have won if we had gone to hearing, but settling allowed me to move on sooner, and while getting a favorable decision would have fed my ego, it could have resulted in me working for the agency (and with people I believe discriminated against me)...settling for some money (and legal fees!!) was best in my opinion.

Just my nickels worth.

You should have voted Cthulu...the greatest of all Evils
thanks 2 users thanked frankgonzalez for this useful post.
GWPDA on 5/6/2019(UTC), falaxy1 on 8/23/2019(UTC)
emrlddragon  
#9 Posted : Friday, May 24, 2019 1:22:30 PM(UTC)
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Originally Posted by: nightchop Go to Quoted Post
Originally Posted by: fatboy Go to Quoted Post
save your breath I'm not dropping anything I am ready to get out anyway, and am numb to the retaliation. I can live with a negative decision by the judge.



I'm so glad you said this. It's really unhelpful when people asking for advice get responses that are discouraging. If someone has come here seeking assistance on the best way to proceed, one should assume they're dedicated to seeing the process through. I am glad you are sticking up for yourself, regardless of the outcome. That is what builds character and maintains your self confidence and esteem. It is better to be respected than liked, especially in situations where you are seeking to remedy an injustice done to you. It's not a fair fight, so there's no dishonor in "losing". Best of luck to you!



I am also seeing this process through- as terrible as it is. The retaliation in my agency is real and unrelenting, but equally matched by my willingness to stand up for myself. Our toxic leadership has succeeded in creating an environment of distrust and discrimination, which has to change or there will be no staff left as everyone is leaving.
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