Fees shall be paid for services performed by an attorney after the filing of a written complaint, provided that the attorney provides reasonable notice of representation to the agency, Administrative Judge, or Commission, except that fees are allowable for a reasonable period of time prior to the notification of representation for any services performed in reaching a …
When the Administrative Judge determines an entitlement to attorney's fees or costs, the complainant's attorney must submit a verified statement of attorney's fees (including expert witness fees) and other costs, as appropriate, to the Administrative Judge within thirty (30) days of receipt of the decision, unless otherwise directed, and must submit a copy of the statement …
Department of Justice, EEOC Appeal No. 07A00005 (March 8, 2001). $185,000 in non-pecuniary damages. Complainant was removed from employment one week after disclosing to his supervisor that he was HIV-positive. The agency accepted an AJ's finding of discrimination but reduced the award of non-pecuniary damages.
If the complainant fails to accept an offer of resolution and the relief awarded in the administrative judge's decision, the agency's final decision, or the Commission decision on appeal is not more favorable than the offer, then, except where the interest of justice would not be served, the complainant shall not receive payment from the agency of attorney's fees or costs …
All participants in the EEO hearing process have a duty to maintain the decorum required for a fair and orderly proceeding and to obey orders of the Administrative Judge. Any person who engages in improper behavior or contumacious conduct (as defined in Section V.A.3 of this Chapter) at any time subsequent to the docketing of a complaint for a hearing is subject to sanction. Section 1614.109 (e) of 29 C.F.R. provides that persons may be excluded from the hearing for contumacious conduct or misbehavior that obstructs the hearing. It further provides that if the complainant's or agency's representative engages in misconduct or refuses to obey an order of the Administrative Judge, the Commission may suspend or disqualify the representative from future hearings, refer the matter to an appropriate licensing authority, or both.
An Administrative Judge has the power to regulate the conduct of a hearing and to exclude any person from a hearing for contumacious conduct or misbehavior that obstructs the hearing . See 29 C.F.R. § 1614.109 (e). The Administrative Judge may exclude any disruptive person, including the complainant, an agency official, or a representative, including agency or complainant counsel. This sanction generally applies to conduct occurring in the Administrative Judge's presence at any point during the hearing process, including prehearing proceedings and teleconferences as well as the hearing itself. It also applies to a representative's refusal to obey orders of the Administrative Judge. The exclusion bars the individual, for the duration of the hearing process, from further participation in the case in which the misconduct occurs. (In contrast, a disqualification of a representative applies to future hearings. The procedure for disqualification is in Section V.B below.)
The hearing is an adjudicatory proceeding that completes the process of developing a full and appropriate record. A hearing provides the parties with a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses. Hearings are governed by 29 C.F.R. § 1614.109. [1] An Administrative Judge from the Commission adjudicates claims of discrimination and issues decisions. Unless the agency issues a final order within forty (40) days of receipt of the Administrative Judge's decision in a non-class action pursuant to 29 C.F.R. § 1614.110 (a), the Administrative Judge's decision becomes the final action of the agency. A complainant may appeal an agency's final action or dismissal of a complaint. An agency may appeal as provided in 29 C.F.R. § 1614.110 (a). 29 C.F.R. §§ 1614.401 (a) & (b).
An Administrative Judge shall review the record developed by the agency and determine whether additional documentation is necessary. If a determination is made that additional documentation is necessary, the Administrative Judge may order the appropriate party to produce the additional documentation.
The agency is responsible for ensuring the appearance and travel arrangements to the hearing site of approved witnesses who are federal employees. Note: the Administrative Judge may order the agency to provide any reasonable accommodations for parties, witnesses, or representatives appearing before the Commission as well as any required foreign language interpreters.
The Commission has the authority to issue sanctions in the administrative hearing process because it was granted, through statute, the power to issue such rules and regulations that it deems necessary to enforce the prohibition on employment discrimination. See Waller v.
Notice of Right to Seek Discovery#N#The Administrative Judge shall send the parties an acknowledgment order advising the parties that they may commence discovery. It is the Commission's policy that the parties are entitled, pursuant to 29 C.F.R. § 1614.109 (b), to the reasonable development of evidence on the issues raised in the complaint.
The Commission has issued a final rule rescinding parts of its Interpretive Guidance on Title I of the Americans With Disabilities Act (ADA) involving mitigating measures used by an individual to eliminate or reduce the effects of an impairment . The revised guidance clarifies the legal standard for determining when a person who uses mitigating measures meets the ADA's definition of "disability." The rule is in line with the Supreme Court decisions in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) holding that the determination of whether a person has a current disability under the ADA must be made by considering any mitigating measures that a person uses to eliminate or reduce the effects of an impairment. The text of the final rule is available on EEOC's website, www.eeoc.gov, under "EEOC Regulations."
Failure to state a claim. A non-dual status military technician failed to state a claim for which relief can be granted when he was forced to retire. The Commission found that Congress had recently enacted 10 U.S.C. § 10218, which mandates separation of non-dual status military technicians who are eligible for an unreduced annuity, and that the enactment created an exception to the Age Discrimination in Employment Act's prohibition of mandatory retirement. Brumbaugh v. Department of the Army, EEOC Appeal No. 01A05531 (March 29, 2001). See also Campbell v. Department of the Army, EEOC Request No. 05A10688 (August 16, 2001).
Burden of Proof. Agency's legitimate nondiscriminatory reason. The AJ found that the agency had not sufficiently articulated a legitimate nondiscriminatory reason for its action in rescinding a position announcement, in part because she found that the agency official was not credible.
Training ordered for purpose of educating employees. In this sexual harassment case, the Commission ordered Title VII training of all managers and supervisors at an agency facility. The agency argued that the training should be restricted to employees involved in the harassment.
Supervisor involved in gender and disability harassment. Demeaning and mean-spirited comments from a number of male coworkers which expressed resentment toward accommodations complainant was receiving or were negative towards women created an abusive working environment. The Commission found that the supervisor participated in and encouraged the harassment. The decision describes the agency's attempted corrective actions. The Commission found them ineffective, slow, and incomplete, and in addition found no evidence of a strong anti-harassment policy. Horkan v. United States Postal Service, EEOC Appeal No. 01976837 (April 6, 2000).
Reliance on poor attendance and safety records was pretext. Records forwarded with complainant's transfer request showed that any attendance problems were a direct result of the lung cancer treatment he received, and that complainant was considered punctual and reliable. The Commission found that complainant established that he was discrimina ted against on the basis of his record of disability when he was denied a transfer to another location. Chavis v. United States Postal Service, EEOC Appeal No. 01983332 (August 16, 2001).
EEO counselors provide information to the aggrieved individual concerning how the federal sector EEO process works, including time frames and appeal procedures, and attempt to informally resolve the matter. At the initial counseling session, counselors must advise individuals in writing of their rights and responsibilities in the EEO process, ...
The AJ must conduct the hearing and issue a decision on the complaint within 180 days of receipt by the AJ of the complaint file from the agency. The AJ will send copies of the hearing record, the transcript and the decision to the parties.
The agency's acknowledgment must also advise the complainant that when a complaint has been amended, the agency must complete the investigation within the earlier of: (1) 180 days after the last amendment to the complaint; or (2) 360 days after the filing of the original complaint.
Some employment actions which may be the subject of a discrimination complaint under Part 1614 may also be appealed to the Merit Systems Protection Board (MSPB). In such cases, the employee must elect to proceed with a complaint as a "mixed case complaint" under Part 1614, or a "mixed case appeal" before the MSPB.
Complainant Entitled to New Hearing Because Alleged Responsible Official Acted as Agency Representative. The Commission found that the AJ erred by allowing the alleged Responsible Management Official to serve as the Agency’s representative at the administrative hearing. The Commission has held that permitting a responding management official to attend a hearing and simultaneously act as a witness creates an inherent conflict of interest. Further, the Commission found that, in the interest of fairness and due to the possible chilling effect of the named Official’s presence during the hearing, Complainant was entitled to a new hearing in which the Official was not involved as an Agency representative. Katharine B. v. U.S. Postal Serv., EEOC Appeal No. 0120170444 (Dec. 7, 2018).
The Agency dismissed the formal complaint for untimely EEO Counselor contact on grounds that Complainant’s initial EEO Counselor contact on December 6, 2018 , was beyond the 45-day limitation. On appeal, Complainant stated that she had no actual or constructive knowledge of the limitation period for contacting an EEO Counselor until she spoke with a former federal employee in December 2018. The Agency provided no documentation reflecting Complainant’s actual or constructive knowledge of the 45-day limitation period. Therefore, the Commission found that the Agency improperly dismissed the formal complaint for untimely EEO Counselor contact. Pamula W. v. Dep’t of Justice, EEOC Appeal No. 2019004234 (Sept. 6, 2019).
Appellant retired from the Agency prior to the period agreed upon in the class settlement, and sought to become part of the class. The AJ properly approved the class settlement which excluded appellant’s time period. The AJ found the settlement to be fair, reasonable, and adequate to the class as a whole. Appellant and two others were untimely in their claims and they did not work for the Agency during the period of time identified in the class complaint, so they were not class members. The Commission agreed Appellant did not meet the definition of a class member and did not have standing to challenge the resolution. The Commission was not persuaded by Appellant’s arguments to redefine the class at this juncture, noting that, as a matter of policy, the Commission encourages settlement of EEO complaints at any stage of processing. Shawnta A. v. Dep’t of Justice, EEOC Appeal No. 0120181245 (June 26, 2019).
The Commission found that the Agency subjected Complainant to a hostile work environment based on reprisal and disability and denied Complainant a reasonable accommodation. Complainant alleged that beginning on December 31, 2012, she was denied a reasonable accommodation consisting of a flexible Alternate Work Schedule (AWS) and the ability to move her lunch break to minimize her leave usage. Complainant’s January 2012 medical documentation indicated Complainant’s medical conditions were ongoing and that the duration of the medical conditions was unknown. Complainant provided updated medical documentation in April 2013, but the Agency found that the updated documentation did not establish a nexus between her disability and the requested accommodation. The Commission disagreed. The Commission further found that the Agency’s proposal of leave under the Family Medical Leave Act (FMLA) as an alternative accommodation that would permit Complainant to attend her medical appointments did not fulfil its obligation under the Rehabilitation Act. Utilizing leave under the FMLA would have required Complainant to take unpaid leave or use sick or annual leave when she had medical appointments, whereas with a flexible AWS she could have minimized her leave usage by moving her off day within the pay period. The Commission noted that although an employer may choose among effective accommodations, forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation. Given that Complainant was permitted to utilize a flexible AWS and move her lunch break to minimize her leave usage in 2012, the Commission found the Agency had not established that maintaining Complainant’s accommodation constituted an undue hardship. The Commission therefore found that Complainant established she was denied a reasonable accommodation after she submitted updated medical documentation in April 2013. Moreover, the Commission found that the Agency failed to make good faith efforts to reasonably accommodate Complainant. The Agency instead subjected her to unlawful harassment based on disability and disciplined Complainant for requesting that the Agency reasonably accommodate her. These actions demonstrated a lack of good faith in the Agency’s accommodation efforts, and the Commission remanded the matter for a supplemental investigation into whether Complainant was entitled to compensatory damages. The Commission affirmed the Agency’s finding of no discrimination concerning Complainant’s many disparate treatment claims. Elise S. v. Dep’t of State, EEOC Appeal No. 0120170164 (Sept. 25, 2019).
Retaliatory Harassment Found. Complainant filed an EEO complaint alleging, among other things, that the Agency subjected her to retaliatory harassment when her supervisor verbally threatened her due to her EEO activity. On appeal, the Commission found that supervisor’s comments violated Title VII. Specifically, Complainant’s supervisor attested that he told Complainant that her complaining about EEO issues was causing him a lot of extra work and stress, and that he did not feel her complaints constituted real EEO complaints. The supervisor further said that management saw Complainant as someone who did not work well with others due to her verbal EEO complaints. The Commission found that the supervisor labeled Complainant as someone who does not work well with others due to her EEO activity. The Commission further observed that Complainant, a probationary employee, was threatened with termination due to her EEO activity. The Commission ultimately found that the supervisor’s comments to Complainant constituted reprisal, and ordered the Agency to conduct a supplemental investigation on Complainant’s entitlement to compensatory damages, among other things. Terisa B. v. Dep’t of Def., EEOC Appeal Nos. 0120180570, 0120181692, & 2019002121 (Sept. 4, 2019).
Obstruction of Justice is a criminal complaint pursuant to the omnibus clause, or "catch-all provision" of 18 U.S.C. § 1503, which provides: Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavours to influence, obstruct, or impede, ...
They refuse to disqualify themselves so they can inflict damage on parties who aren’t favoured. Introduction.