Appearing Before an Administrative Judge at the EEOC

Appearing before an AJ?

Be brief and focus on key issues
Like any court of law, the Equal Employment Opportunity Commission’s federal–sector process frustrates parties because it often lasts too long.

Administrative judges—who pore over large volumes of documents to weigh each side’s arguments and, ultimately, render a decision—feel the same way. However, there are some things attorneys can do to make it easier and quicker for everyone.

At a recent forum held by the D.C. Bar, AJ Kathryn Brown offered tips for lawyers who appear before her and the other AJs at the Washington field office. Whether legal counselors hail from an agency or represent a mistreated federal worker, they can benefit from her suggestions on reducing paperwork and making the most of their time in discrimination proceedings.

“It’s no secret that our office — like others across agencies— has minimal administrative staff,” Brown said. When AJs have a lighter load of clerical work, she said, it frees up more time for them to focus on the merits of the case.

Material evidence
Topping Brown’s list of hints is the importance of brevity.

Most people, including AJs, are usually pressed for time so lawyers should avoid redundancies in court-related documents and motions.

"Don’t devote excessive verbiage to describe fundamental legal standards,” she said. “[Attorneys should] include a concise recitation of the basic legal standards for establishing discrimination and for entry of summary judgment.”

Key evidence also needs to be the focus of any notices and filings. Briefs should specifically cite the corroborating evidence.

“Administrative judges are human beings, not bloodhounds,” Brown said. “We can miss a nugget of evidence in a 1,000-word record. Don’t rely on the AJ to root out all of the material evidence.”

If a judge rules against a motion after apparently disregarding an important piece of evidence or ambiguous testimony, attorneys should say something.

“Alert the AJ to the place in the record [or] point out the dispute of material facts,” she said.

In addition, she said, lawyers should discover and collect evidence that supports their client’s case, especially where the investigative report is weak. In these instances — and others when there is no direct evidence or no articulated rationale—it’s appropriate for attorneys on either side to move for a decision without a hearing. Counselors also need to remember, Brown said, that EEOC regulations allow AJs to exercise summary judgment at their discretion, without a legal motion.

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What works and what doesn’t

Some dos
Overall, EEOC AJ Kathryn Brown said, attorneys can cut down on paperwork and increase efficiency.

Among the dos are:

• Follow procedures set forth in orders and any hearings guidance from the EEOC.
• Fax submissions to the number the AJ identifies.
• Invest in fax equipment that automatically accepts faxes.
• Include the fax numbers and/or addresses for both parties on orders needing the AJ’s signature.
• Retain proof of EEOC correspondence, such as fax confirmation or mail receipts.
• Recognize how your motions impact the AJ and other litigants.
• State your motion, whether the other party opposes, and, if known, describe efforts taken to ascertain its opinion.
• Make meaningful efforts to resolve disputes, filing a motion as a last resort.
• Request an extension/postponement as soon as possible.

And don’ts
In addition, attorneys need to be careful of what not to do. Most of these actions add unnecessary time to the EEO proceedings.

Some don’ts, according to Brown, include:

• Don’t provide the AJ with the number of a fax machine that is not always ready to receive documents.
• Don’t request that the EEOC return datestamped copies of your filings.
• Don’t wait until the last minute for extensions, continuances or postponements and expect the AJ to issue an immediate ruling.
• Don’t lead the AJ to believe that you do not consider the case a scheduling priority.
• Don’t rely on other motions or settlement discussions to delay the process.
• Don’t expect the AJ to rule on your motion before having the opportunity to consider any opposition.
• Don’t forget that the impact of your motions extend beyond your adversary.
• Don’t assume that the case will receive a hearing merely because neither party filed a motion for summary judgment.
• Don’t hold back evidence to “surprise” the opposing counsel.
• Don’t submit too much paperwork and simultaneously ask to exceed page limits.

*Reprinted with permission from Federal EEO Advisor. Copyright 2006 by LRP Publications, 747 Dresher Rd, Horsham, PA 19044. All rights reserved. For more information on this or other products, please call (800) 341–7874 or visit www.lrp.com.