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Last revision: April 10, 1992
§1614.109 Hearings.
(a) When a complainant requests a hearing, the agency shall
request that the Commission appoint an administrative judge to conduct
a hearing in accordance with this section. Any hearing will be
conducted by an administrative judge or hearing examiner with
appropriate security clearances. Where the administrative judge
determines that the complainant is raising or intends to pursue issues
like or related to those raised in the complaint, but which the agency
has not had an opportunity to address, the administrative judge shall
remand any such issue for counseling in accordance with 1614.105
for
such other processing as ordered by the administrative judge.
(b) 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.
(c) Conduct of hearing. Agencies 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.
(d) The procedures in paragraphs (d) (1) through (3) of this
section apply to hearings of complaints:
(1) The complainant, an agency, and any employee of a Federal
agency shall produce such documentary and testimonial evidence as the
administrative judge deems necessary.
(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 agency against which a complaint
is filed, or its employees fail without good cause shown to respond
fully and in timely fashion to requests for documents, records,
comparative data, statistics, affidavits, or the attendance of
witness(es), the administrative judge may, 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.
(e) Findings and conclusions without hearing. (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 (d)(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 findings
and conclusions 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 findings and
conclusions without holding a hearing.
(f) Record of hearing. The hearing shall be recorded and the
agency 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 agency
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 agency representative for reproduction.
(g) Findings and conclusions. Unless the administrative judge
makes a written determination that good cause exists for extending the
time for issuing findings of fact and conclusions of law, within 180
days of a request for a hearing being received by EEOC, an
administrative judge shall issue findings of fact and conclusions of
law on the merits of the complaint, and shall order appropriate relief
where discrimination is found with regard to the matter that gave rise
to the complaint. The administrative judge shall send copies of the
entire record, including the transcript, and the findings and
conclusions to the parties by certified mail, return receipt
requested. Within 60 days of receipt of the findings and conclusions,
the agency may reject or modify the findings and conclusions or the
relief ordered by the administrative judge and issue a final decision
in accordance with 1614.110. If an agency does not, within 60 days of
receipt, reject or modify the findings and conclusions of the
administrative judge, then the findings and conclusions of the
administrative judge and the relief ordered shall become the final
decision of the agency and the agency shall notify the complainant of
the final decision in accordance with 1614.110.