ORAL HEARING OR FINAL AGENCY DECISION?
By J.R. Pritchett, POSTAL EMPLOYEE ADVOCATE
September, 2007 |
Whenever a federal employee finds that they may have been the victim of
unlawful discrimination, they find themselves having to navigate through
a complex and technical EEO administrative process in order to prove that
they were discriminated against.
So here's my view on how the system currently works.
You have to make sure that you contact a Postal Service EEO Counselor
within 45-days of the date of the act, policy or practice that you allege
is discriminatory. If you are even one (1) day late your complaint will
be dismissed as untimely. [At the time of this article employees can
contact the Postal Service's National Equal Employment Investigative
Services Office (NEEOISO) in Tampa, Florida at 888-336-8777.]
You have to make certain that you properly identify the type or basis of
your complaint of discrimination (race, color, national origin, age, sex,
religion, disability, or reprisal for prior protected EEO activity). The
Postal Service prefers to use their own forms (though it is not mandatory
that you use them) which leave you little space to fully describe
everything that is requested. This is either intentional, or was created
by someone with an inability to anticipate that some people don't write
in eight-point font.
If you don't agree to REDRESS mediation, or otherwise agree to extend the
informal complaint period, within 30-days of when you filed the informal
complaint, you should receive a Notice of Right to File a Formal
Complaint. There doesn't seem to be any consequences to the Postal
Service if they miss their time limits.
Once you file your formal complaint (don't forget about those pesky time
limits) you then wait to find out how NEEOISO will frame or describe your
complaint. They will also advise you what issues they agree to accept for
investigation and what issues will be dismissed. Yes, you can write back
within ten (10) days and disagree, but other than that, you have no
recourse except to place your objection on the record.
The accepted issues are assigned to a contract investigator (many who are
retired Postal Service managers), who will send you copious questions
that you must answer in affidavit form. Though s/he likely won't ask, you
should take advantage of this opportunity by entering additional
testimony related to the issues that were dismissed.
After struggling to get sufficient time on-the-clock from your supervisor
to properly respond to the affidavit questions, you again wait for a copy
of the Report of Investigation (ROI). The file (usually a proper
government pale-green) is supposed to reflect an unbiased compilation of
evidence related to your complaint, without drawing any conclusions or
opinions. The ROI not only contains your affidavit, but should also
contain the affidavit(s) of the individual(s) who were named as being
responsible for the discriminatory act; exhibits of relevant documents;
and a summary of the evidence contained therein.
A cover letter should accompany the ROI advising you of several options
regarding how to proceed. A.) Take no action at all and within
forty (40) days the Postal Service must provide you with a copy
of its Final Agency Decision (FAD). B.) You can specifically
request an FAD. (Don't get your hopes up that the Postal Service
will find that they discriminated against you). C.) You can also
submit a Request to Withdraw your Complaint (something that you've just waited all this time to do
- insert
thick sarcasm here). Your final option is, D.) you can ask for an Oral
Hearing before an EEO Commission Administrative Judge (finally, you think
to yourself - someone who doesn't work for the Postal Service).
Generally, a form is enclosed to use to request a hearing, which
instructs the complainant to send their request directly to NEEOISO
(which is a Postal Service office). There is no prohibition (in fact a
preference) to send requests for a hearing directly to the EEO Commission
District or Field Office indicated in the cover letter, via Certified
Mail. Send a courtesy copy of your request to NEEOISO.
Once an AJ has been assigned and you receive an Acknowledgement Order you
have new procedural requirements, along with varying imposed time limits.
When engaging in discovery, you must do so within twenty (20) days of the
date of the Order. Discovery is very important because it's FINALLY your
(only) opportunity to request information, documents, and other responses
from the Postal Service in order to supplement the ROI. When it's clear
that the investigator compiled information or evidence that favors
management, or was weak in supporting your case, then you have to gather
sufficient information that favors your claim of discrimination. This can
include obtaining depositions and/or affidavits from responding
management officials (RMO's) and other witnesses. (Make sure that you're
doing all this stuff on-the-clock, folks.)
Within thirty (30) days of the Acknowledgement Order you must submit any
Motion to Amend your complaint. This is your opportunity to submit your
arguments to the AJ why issues that had been dismissed, should be
reinstated as an issue before the Commission. The most persuasive
argument occurs when you can show that the reason(s) given for the
dismissals were improper or not in accordance with law.
At the conclusion of discovery, which is usually only a sixty (60) day
window, your next major hurdle occurs when the Postal Service files a
Motion for a Decision without a Hearing - also know as Summary Judgment.
If the Postal Service doesn't file the motion fast enough for the AJ, you
can expect a notice from him/her called a Notice of Intent to Issue a
Decision without a Hearing. Of course judge's love this little legal
maneuver because it gets the complaint off of their desk without them
having to actually fully investigate your allegations of discrimination.
So you find yourself arguing again that there is significant dispute of
the material facts that should entitle you to a hearing. After all, what
other reason would motivate you to submit yourself to this tedious,
stressful, time-consuming, demanding, costly, and overly complicated and
technical process?
If you find yourself to be one of the few "lucky ones" (and I don't mean
it in a cavalier way) and the AJ finds that Summary Judgment would not be
appropriate, you may finally get "your day in court". You might feel like
this is the pinnacle of your achievement - the opportunity for someone to
finally hear your side of the story. Not to burst your bubble, but
overwhelmingly AJ's rule in favor of the employing agency.
If your complaint has not been bifurcated (separates the evidence on
liability from the evidence on damages), then during the hearing you will
also be expected to produce evidence and testimony regarding your claim
for damages. This process especially can be extremely stressful and
personally intrusive. And more often than not, damage awards rarely fully
compensate what the complainant experienced. There are no punitive
damages available in the federal sector - which would be the only
sensible method to deter the Postal Service from its institutional
behavior. Also, you cannot be compensated for the stress experienced or
caused by the litigation process itself - you can only be compensated for
the consequences of the discriminatory act, policy or practice.
Even if the AJ rules in your favor, it's likely that the FAD (which must
be generated after the AJ's decision) will conclude that the Postal
Service did not discriminate. After all, what motivation would the Postal
Service have to find against itself? Nevertheless, you need this absurd
piece of paper (the FAD) to either appeal to the EEO Commission in
Washington, D.C., or to take the matter to Federal District Court. The
FAD becomes your evidence that, as a federal employee you have exhausted
your administrative remedies (which surely have exhausted you).
If you appeal to the EEO Commission, and your complaint has been
adjudicated by an EEOC AJ, the Commission is not going to feel
particularly motivated or compelled to look very closely at the issues
raised in your complaint. After all, the EEOC defers to AJ's who have
heard the testimony, reviewed the evidence, and ostensibly applied all of
the relevant and applicable standards of law. Certainly you make your
argument that the AJ erred in his/her decision, with regard to evidence
in the record, credibility determinations, and application of law, but
unless those errors essentially leap off the page and get the
Commission's attention, deference is usually conferred on the AJ. Assuming the
Commission rules against you; it's at least more than a year
since the discriminatory act occurred; you've spent money, time,
and (likely emotional) effort trying to persuade anyone that
will listen that you've been unfairly treated and the victim of unlawful discrimination.
And now your remaining choice is to go to Federal District Court. Is the
adverse action that you filed your complaint about still relevant? Are
witnesses still available? For that matter, can any of the witnesses
remember what happened so long ago?
The obvious cynicism and sarcasm about this process is directly related
to the failure of this process to effectively recognize and/or deter
discriminatory conduct. It's a system that inherently favors the
employing agency and is insufficient to impose any meaningful
consequences to the Postal Service.
However, because it's the only process available to federal employees,
there are some tactical considerations that employees should consider.
Specifically, after you have engaged in discovery and had the opportunity
to fully develop the record, you may want to consider withdrawing your
request for a hearing, and instead ask for a Final Agency Decision.
Why? For several reasons. First, and probably most importantly, in your
appeal of the FAD you don't have to make any arguments to counter an AJ's
findings. The EEOC is more likely to look more closely at a complaint
where the Postal Service has declared that it did not discriminate
against you (which they almost always say). There's no judge to have to
give deference to - someone who is assumed to be non-biased. The Postal
Service however, is not endowed with that expectation. When the AJ notes
for the record that you have withdrawn your request for a hearing and
have asked for an FAD, there's not usually much delay in returning the
complaint file to NEEOISO. At that point, even the Postal Service Law
Office doesn't usually pursue the complaint. So instead of the Postal
Service attorney's arguments being considered and/or incorporated into
the opinion of the FAD, it's all done by postal managers at NEEOISO. Your
arguments presented on appeal, can now include detailed evidence obtained
during discovery, including official Postal Service documents (policy
letters, emails, etc.) written affidavits and/or transcripts of
depositions. NEEOISO may not even be aware of this evidence when they
write the FAD. Such an advantage just might provide the edge needed to
convincingly persuade OFO that the articulated reasons provided by the
Postal Service are pretextual and intended to masque, hide, or otherwise
conceal discriminatory conduct or animus.
Now you are left with a tactical decision to make. Should you take the
chance that an AJ will issue a Summary Judgment decision; which would
either prevent, or extensively delay your opportunity for a hearing, just
so you can have your "day in court"? You might still get that day in
court if OFO remands your appeal back to the original EEO Office for a
hearing. If it's reassigned to the same AJ, do you think s/he would be
inclined to embrace evidence that would show that their prior conclusions
were erroneous?
It may be that you have more than sufficient evidence where an AJ might
have no other alternative but to find that discrimination occurred. Cases
like that do still exist. But where the overwhelming majority of EEO
complaints fall prey to Summary Judgment, a tactical method of avoiding
it should be given serious consideration.
Mr. J.R. Pritchett is an Administrative Law Representative with POSTAL
EMPLOYEE ADVOCATES, who are not attorneys. The above article has been
prepared for educational and informational purposes only. It does not
constitute legal advice or legal opinions and should not be construed as
such. Readers should not act upon this information without first seeking
professional legal counsel. The opinions expressed in this article are
those of the author, and not those of the Internet host or its sponsors.
You may contact at postalemployeeadvocate@juno.com.
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