(a) When a complainant requests a hearing, the Commission
shall appoint an administrative judge to conduct a hearing in accordance
with this section. Upon appointment, the administrative judge shall
assume full responsibility for the adjudication of the complaint,
including overseeing the development of the record. Any hearing will
be conducted by an administrative judge or hearing examiner with appropriate
security clearances.
(b) Dismissals. Administrative judges may dismiss complaints pursuant to section
268.106, on their own initiative, after notice to the parties, or
upon the Board’s motion to dismiss a complaint.
(c) Offer of resolution.
(1) Any time after the filing of the written
complaint but not later than the date an administrative judge is appointed
to conduct a hearing, the Board may make an offer of resolution to
a complainant who is represented by an attorney.
(2) Any time after the parties have received
notice that an administrative judge has been appointed to conduct
a hearing, but not later than 30 days prior to the hearing, the Board
may make an offer of resolution to the complainant, whether represented
by an attorney or not.
(3) The offer
of resolution shall be in writing and shall include a notice explaining
the possible consequences of failing to accept the offer. The Board’s
offer, to be effective, must include attorney’s fees and costs and
must specify any nonmonetary relief. With regard to monetary relief,
the Board may make a lump-sum offer covering all forms of monetary
liability, or it may itemize the amounts and types of monetary relief
being offered. The complainant shall have 30 days from receipt of
the offer of resolution to accept it. If the complainant fails to
accept an offer of resolution and the relief awarded in the administrative
judge’s decision, the Board’s final decision, or the Commission’s
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 Board of attorney’s fees or costs
incurred after the expiration of the 30-day acceptance period. An
acceptance of an offer must be in writing and will be timely if postmarked
or received within the 30-day period. Where a complainant fails to
accept an offer of resolution, the Board may make other offers of
resolution and either party may seek to negotiate a settlement of
the complaint at any time.
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(d) Discovery. The administrative judge shall notify the parties
of the right to seek discovery prior to the hearing and may issue
such discovery orders as are appropriate. Unless the parties agree
in writing concerning the methods and scope of discovery, the party
seeking discovery shall request authorization from the administrative
judge prior to commencing discovery. Both parties are entitled to
reasonable development of evidence on matters relevant to the issues
raised in the complaint, but the administrative judge may limit the quantity
and timing of discovery. Evidence may be developed through interrogatories,
depositions, and requests for admissions, stipulations, or production
of documents. It shall be grounds for objection to producing evidence
that the information sought by either party is irrelevant, overburdensome,
repetitious, or privileged.
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(e) Conduct of hearing. The Board shall provide for the attendance
at a hearing of all employees approved as witnesses by an administrative
judge. Attendance at hearings will be limited to persons determined
by the administrative judge to have direct knowledge relating to the
complaint. Hearings are part of the investigative process and are
thus closed to the public. The administrative judge shall have the
power to regulate the conduct of a hearing, limit the number of witnesses
where testimony would be repetitious, and exclude any person from
the hearing for contumacious conduct or misbehavior that obstructs
the hearing. The administrative judge shall receive into evidence
information or documents relevant to the complaint. Rules of evidence
shall not be applied strictly, but the administrative judge shall
exclude irrelevant or repetitious evidence. The administrative judge
or the Commission may refer to the disciplinary committee of the appropriate
bar association any attorney or, upon reasonable notice and an opportunity
to be heard, suspend or disqualify from representing complainants
or agencies in EEOC hearings any representative who refuses to follow
the orders of an administrative judge, or who otherwise engages in
improper conduct.
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(f) Procedures.
(1) The complainant, the
Board and any employee of the Board shall produce such documentary
and testimonial evidence as the administrative judge deems necessary.
The administrative judge shall serve all orders to produce evidence
on both parties.
(2) Administrative
judges are authorized to administer oaths. Statements of witnesses
shall be made under oath or affirmation or, alternatively, by written
statement under penalty of perjury.
(3) When the complainant, or the Board, or its employees fail without
good cause shown to respond fully and in timely fashion to an order
of an administrative judge, or requests for the investigative file,
for documents, records, comparative data, statistics, affidavits,
or the attendance of witness(es), the administrative judge shall,
in appropriate circumstances—
(i) draw an adverse inference that the
requested information, or the testimony of the requested witness,
would have reflected unfavorably on the party refusing to provide
the requested information;
(ii)
consider the matters to which the requested information or testimony
pertains to be established in favor of the opposing party;
(iii) exclude other evidence offered
by the party failing to produce the requested information or witness;
(iv) issue a decision fully or
partially in favor of the opposing party; or
(v) take such other actions as appropriate.
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(g) Summary judgment.
(1) If a party believes
that some or all material facts are not in genuine dispute and there
is no genuine issue as to credibility, the party may, at least 15
days prior to the date of the hearing or at such earlier time as required
by the administrative judge, file a statement with the administrative
judge prior to the hearing setting forth the fact or facts and referring
to the parts of the record relied on to support the statement. The
statement must demonstrate that there is no genuine issue as to any
such material fact. The party shall serve the statement on the opposing
party.
(2) The opposing party may
file an opposition within 15 days of receipt of the statement in paragraph
(g)(1) of this section. The opposition may refer to the record in
the case to rebut the statement that a fact is not in dispute or may
file an affidavit stating that the party cannot, for reasons stated,
present facts to oppose the request. After considering the submissions,
the administrative judge may order that discovery be permitted on
the fact or facts involved, limit the hearing to the issues remaining
in dispute, issue a decision without a hearing, or make such other
ruling as is appropriate.
(3) If
the administrative judge determines upon his or her own initiative
that some or all facts are not in genuine dispute, he or she may,
after giving notice to the parties and providing them an opportunity
to respond in writing within 15 calendar days, issue an order limiting
the scope of the hearing or issue a decision without holding a hearing.
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(h) Record of hearing. The hearing
shall be recorded and the Board shall arrange and pay for verbatim
transcripts. All documents submitted to, and accepted by, the administrative
judge at the hearing shall be made part of the record of the hearing.
If the Board submits a document that is accepted, it shall furnish
a copy of the document to the complainant. If the complainant submits
a document that is accepted, the administrative judge shall make the
document available to the Board’s representative for reproduction.
(i) Decisions by administrative
judges. Unless the administrative judge makes a written determination
that good cause exists for extending the time for issuing a decision,
an administrative judge shall issue a decision on the complaint, and
shall order appropriate remedies and relief where discrimination is
found, within 180 days of receipt by the administrative judge of the
complaint file from the Board. The administrative judge shall send
copies of the hearing record, including the transcript, and the decision
to the parties. If the Board does not issue a final order within 40
days of receipt of the administrative judge’s decision in accordance
with section 268.109(a), then the decision of the administrative judge
shall become the final action of the Board.
