Developing trends: With EEOC Administrative Judges denying discovery, Complainants and their counsel should ensure their Reports of Investigation include all relevant information.Posted by on

A trend appears to be developing in which EEOC Administrative Judges curtail or deny EEOC complainants the ability to conduct discovery before they issue a decision based on the facts and evidence contained in the Report of Investigation, or “ROI.” The result is to effectively deny a complainant the right to an administrative hearing on the merits of his or her complaint. This is a profound revision to the EEOC’s procedures, made without any notice or comment.
Since the EEOC assumed responsibility for processing discrimination complaints by federal employees, when a complainant requests a hearing, the Commission assigns an administrative judge to conduct that hearing in accordance with the Commission’s regulations at 29 CFR §1614 and its management directive governing Federal Sector Complaint Processing, otherwise known as MD 110. The administrative judge maintains responsibility for the adjudication of the complaint. Federal regulations actually require an administrative judge to notify the parties of the right to seek discovery before the hearing.1 And although the administrative judge maintains the authority to limit the quantity and timing of discovery, EEOC regulations contemplate that “[b]oth parties are entitled to reasonable development of evidence on matters relevant to the issues raised in the complaint….”
The right to discovery before a hearing is not an accident: the ROI for a claim of discrimination is prepared under the supervision of the same Agency that is accused of discrimination. Other than submitting his or her own affidavit and rebuttal affidavit, with attachments, the complainant is permitted no role in determining what goes into or is left out of the ROI. The Commission has long held that “a hearing before an EEOC AJ is ‘an adjudicatory proceeding which completes the investigation of a complaint by ensuring that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses.’”2
Nevertheless, some administrative judges have recently denied complainants the right to develop the evidence through the discovery process. One example of this development is evident from the EEOC’s San Antonio Field Office, which issued an Acknowledgment Order warning the parties that the Administrative Judge was prepared to deny discovery unless the judge found it justified at the Initial Scheduling Conference. The Order included the following statements:
The Parties are notified that not all cases require discovery and discovery will not be granted in all cases. Moreover, discovery may be further limited, and in some cases denied altogether.
….
[T]he parties should be prepared for the Administrative Judge to deny discovery. Under these circumstances, the AJ may, as an example, determine that the record is substantially complete, and that there is little remaining evidence necessary to complete the record for decision. In such cases, the resolution of the complaint may take the form of a Summary Judgment decision, or there may be a Targeted Hearing, which may focus on gathering a few additional facts to complete the record, or such a hearing may be convened to resolve a limited credibility issue. In these cases, the AJ may also limit the parties’ participation in these hearings. In fact, it is possible that the AJ may convene the hearing and preclude examination of any witness(es) by the parties and conduct the examination of any witnesses her/himself.
Nearly identical statements warning that “not all cases require discovery and discovery will not be granted in all cases,” also have been included in Acknowledgement Orders issued by administrative judges in the Washington Field Office. Though these orders similarly threaten to deny the parties any discovery at all, they offer no explanation of the factors the administrative judge will use to determine whether discovery will be granted, severely limited, or denied altogether. The result may leave complainants who expect to pursue their complaints to hearing without counsel scratching their heads about how best to justify the need and expense for discovery under the circumstances.
Another variation on this trend, recently exercised by the EEOC’s Washington Field Office, involved an Acknowledgment Order that calls for an in-person Initial Scheduling Conference. The Order provided that during the Conference, limited testimony would be taken exclusively from four witnesses before a decision on the complaint would be read from the bench. In this matter, buried within the particulars providing for discovery, the administrative judge stated:
I have determined that the record has been adequately developed, with the exception of  the required documents in Section III of this Order and additional testimony from the witnesses listed in Section IV of this Order. Therefore, discovery requests will be streamlined thoroughly.
In this matter, the administrative judge required the Complainant to produce both 1) affidavits from any witness that would assist the Complainant with establishing pretext or corroborate the Complainant’s testimony, and 2) all “documents/evidence not within the ROI within the Complainant’s possession” that would help Complainant prove his case. The administrative judge only required the Agency to produce “all documents/evidence not included in the ROI within the Agency’s possession that can help establish its defense.” Apparently, this administrative judge did not believe the agency should be required to produce evidence in its possession that would benefit the complainant, i.e., evidence that is normally sought in discovery.
Finally, in one of the most severe examples of this trend, an administrative judge in the Washington Field Office relied on the rarely-used authority under 29 CFR §1614.109(g)(3). Under §1614.109(g)(3), an administrative judge can determine, on his or her own initiative, that there are no material facts in dispute, and provide notice to the parties of his or her intent to issue a decision without holding a hearing. The notice allowed the parties an opportunity to respond to the order declaring the administrative judge’s intent to grant summary judgment without any discovery or a hearing and to explain why discovery was necessary. But the administrative judge remained free to issue a decision both denying the complainant’s request for discovery and deciding the case in favor of the Agency.
If this practice of limiting or precluding discovery is adopted by other administrative judges, the evidence available in the record is likely to be incomplete. It is difficult to see how the movement toward limiting complainants’ ability to obtain evidence not included in the ROI contributes towards the government’s goal of “conduct[ing] a continuing campaign to eradicate every form of prejudice or discrimination from the agency’s personnel policies, practices, and working conditions.”3
129 CFR §1614.109 (d) (“The administrative judge shall notified the parties of the right to seek discovery prior to the hearing and may issue such discovery orders as are appropriate.”).
2 Angelita G. Guerra, Appellant, EEOC Appeal No. 01940899 slip op. at *8 n.3 (Oct. 4, 1994); see also Complainant v. Archuleta, EEOC Appeal No. 0120120901, slip op. at *12 (Dec. 2, 2013) (“One function of the hearing process is to supplement the Record of Investigation (ROI).”).

 

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