Our consultants noticed a developing and recurring trend in the manner in which some district offices of the Equal Employment Opportunity Commission (EEOC) process federal EEO complaints affecting federal employees in the pre-hearing phase. This new process provides administrative judge’s (AJ) greater control in what could be described as more direct and active case management. The new trend, which appears to have emerged from “pilot program” status, seeks to streamline case processing in connection with EEOC pre-hearing procedures. At first glance, it is a seemingly good change in that such procedures appear to be simplified when compared to traditional procedures viewed by complainants as a daunting civil litigation process. However, the truth is that this simplification could disadvantage complainants, especially in the area of discovery, and may, in some instances, conflict with not yet revised guidance contained in EEOC Management Directive 110 (2015) though not violative of 29 C.F.R. § 1614.109(b), which otherwise entitles a complainant to discovery but reserves authorization (when and if) to commence discovery to the AJ after an “Initial Conference” (IC) in which the parties discuss and argue discovery needs, among other items, with the AJ and agency counsel.
Traditional Pre-Hearing Discovery Procedures (for comparison)
Though traditional EEOC pre-hearing procedures may have varied slightly in the past between EEOC district offices, unless otherwise identified by the EEOC as a “pilot program” using new procedures, it was clearly stipulated in the Acknowledgement Order (AO) that, upon date of issuance, the AO authorized and directed the parties (agency and complainant) to initiate discovery within twenty-calendar days or risk waiving the right to discovery. This discovery phase did not involve intervention of the administrative judge (AJ) unless the parties were unable to resolve discovery disputes. Discovery served upon a federal agency by a complainant typically consisted of:
- Production of documents
Prior to reading on, it is important to understand discovery is a critical process of any EEO complaint. It is intended to supplement the official hearing record, which is the Report of Investigation (ROI). Most investigations are not as thorough as necessary and often fail to either obtain all evidence necessary and available or even at times, do not include the evidence actually referred to in the ROI. In other cases, additional evidence may have developed during or after the conclusion of the ROI and, like the missing evidence, will need to be obtained through service of discovery upon the agency.
Change in Pre-Hearing Procedures
Complainants will know the Acknowledgement Order (AO) is subject to the new pre-hearing process by (typically) the language inserted at the top of the AO, such as,
The EEOC has designated the Baltimore Hearings Unit as a pilot office for a revised case management system. The parties are advised to carefully read this Order as it is different from a standard Acknowledgment and Order which may have been received in the past.
If the AO issued was not under the pilot program, but rather a new permanent process, the language will read as (or similar),
This Order contains new or revised provisions. Parties, therefore you should read the Order carefully and not rely on their knowledge of the contents of earlier versions.
The new type of order could be (and has been) referred to as a Case Management Order (CMO) because the EEOC is seeking to more aggressively manage the case process compared to the past in an effort at streamlining and timeliness. The best example of this is how (and if) discovery is conducted. Previously, discovery was guaranteed with specific instructions. Now, discovery is largely at the discretion of the assigned administrative judge.
Perhaps the best way to demonstrate this change is by reading the actual instructions as provided below concerning the new Preliminary Case Information (PCI) order.
III. PRELIMINARY CASE INFORMATION (PCI) ORDER
The parties are ORDERED to provide a Preliminary Case Information (PCI) submission. The PCI is a tool used by the parties to notify the Administrative Judge what evidence they believe is needed to supplement the record, which already includes the Report of Investigation (ROI). The parties will review the ROI and briefly identify what additional evidence is needed in support of their case. The PCI will also request basic case information, such as: identifying agency dismissed claims. Submission of the PCI does not preclude the parties from requesting additional evidence at the time the Initial Conference is held.
The parties are ORDERED to submit the PCI no later than 15 days from the date of this Order. Submissions must be made using the attached PCI. The PCI may be uploaded by the Agency through FEDSEP and Complainant via the EEOC Public Portal. If Complainant does not have an open EEOC Portal Account, the PCI must be sent to the following EEOC email address: XXXX.XXXXXXX@eeoc.gov or by first-class mail. See Attachment B.
Failure to submit the PCI may result in sanctions, such as: waiver of discovery; denial of motions in the areas addressed in the PCI (dismissals or additional evidence); dismissal of the hearing request for final action by the Agency; or default judgment against the Agency.
In the context of EEO complainant discovery, the PCI reduces formal discovery to a single box on a single page of an attachment in an informal way compared to past methods. Further, the new type of Acknowledgment Order instructs the submitter to not upload additional documents. In other words, the complainant is limited to using the form and the box within the form to identify additional items he or she is seeking through discovery AND must justify the need for such discovery to the judge during the Initial Conference (IC). Therefore, discovery is likely very limited. But on the other hand, once the judge indicates the agency should provide the request discovery items, the agency cannot object or stall in its delivery.
Based on recent and developing changes affecting pre-hearing procedures, particularly that affecting the discovery process, complainants must take into consideration the distinct possibility of limited discovery. Previously, complainants did not need to clear discovery requests through the judge. Instead, upon agency challenge (after serving the agency with a discovery request), the complainant may have had to 1) respond to agency concerns, 2) first attempt to resolve those concerns without intervention of the judge, 3) file a motion to compel production of discovery if the agency failed to respond to the request. These factors all appear to be now relegated to discussion, argument, and resolution during the Initial Conference (IC) with the judge.
Finally, discovery to supplement the official hearing record (ROI) is still permitted. The process has changed however.
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