*The U.S. Equal Employment Opportunity Commission*

----

# Frequently Asked Questions About The Federal Sector Hearing  Process

## Introduction

In response to feedback received from complainants and their  representatives, about not having ready access to easily  understandable and practical information about the federal sector  hearing process, we have compiled a list of questions which  complainants and their representatives frequently ask our  administrative judges, and have provided answers. We hope the  information contained in the enclosed Frequently Asked Questions  (FAQs) and the accompanying sample forms and  orders will help familiarize your representative and you with  the various practices and procedures that govern processing of  your case once we receive your request for a hearing. FAQs are  available in both printed and digital formats, and from  time-to-time, these FAQs will be updated. Being as knowledgeable  as possible about the hearing process will help your  representative and you prepare for hearings, thereby ensuring  your case is decided fairly, efficiently and expeditiously.

These frequently asked questions (FAQs) primarily are intended  for complainants and their representatives seeking information  about the EEOC federal sector hearing process, and are not (and  are not intended to be) legal advice or a substitute for legal  counsel. EEOC does not provide parties legal advice or  assistance. If you need legal assistance or advice, you should  consult an attorney or other knowledgeable individual.

These FAQs were prepared by Administrative Judge Robert Powell  in EEOC's San Antonio District Office.

**NOTE: If any FAQ conflicts with an EEOC regulation,  ruling or administrative judge's order, parties will comply with  the regulation, ruling or order.**

## General

- What is the EEOC? 
- What is an Administrative Judge ("AJ")? 
- What is a hearing? 
- Do I need an attorney or may I represent    myself in the hearing? 
- Can I resolve my complaint without a    hearing? 
- What if I need an interpreter? 

## Before The Hearing

- How will I know when EEOC has my case? 
- What are an Acknowledgment and Order and a    Supplemental Acknowledgment and Order? 
- What is summary judgment? 
- What is a pre-hearing conference? 
- What is an evidentiary hearing? 
- What can happen if I fail to comply with the    AJ's orders? 
- What should I do if the agency will not    approve official time for hearing preparations? 
- What should I do if I cannot attend the    hearing on the date it is scheduled? 
- If I send in a motion for a postponement and    have not heard anything, must I still attend? 
- Do I have the right to ask the agency for    information about my case? 
- How do I make sure that a witness I need for    my case appears at the hearing? 
- How should I prepare for the hearing? 
- May I contact an AJ to discuss my case? 
- Where will my hearing be held? 
- What is ADR? 
- Where can I locate sample forms to help me    prepare for the hearing? 

## The Hearing

- How is the hearing conducted? 
- What is "burden of proof"? 
- Who has the burden of proof - the    complainant or the agency? 
- What happens if I do not attend the hearing    or do not participate in the proceedings? 
- May I offer additional documents at the    hearing as evidence? 
- What should I wear to the hearing? 
- How should I address the AJ? 
- How will the witness testimony be    recorded? 
- How do I get a copy of the hearing    testimony? 
- Will the AJ give me a decision at the    hearing? 
- Do I have to pay for my hearing? 

## After The Hearing

- After the hearing, may I provide the AJ    additional information about my case? 
- Will I receive a copy of the AJ's    decision? 
- When will the AJ issue the decision? 
- What is the Final Agency Order or Final    Agency Decision? 
- Can I appeal the Agency's final order or    decision? 

What is the EEOC?

The U. S. Equal Employment Opportunity Commission (EEOC) is an  agency in the Executive Branch of the United States Government.  EEOC was established and became operational on July 2, 1965.  EEOC's primary missions in relation to federal employees are  promotion of equality of opportunity in the federal workplace and  enforcement of federal  laws prohibiting employment discrimination against federal  employees, including the following:

- Title VII of    the Civil Rights Act of 1964 , as amended (42 U.S.C. 2000e,    et. seq.) prohibiting discrimination on the basis of race,    color, religion, sex, national origin and retaliation for    protected EEO activity;
- Age    Discrimination in Employment Act (ADEA) , as amended (29    U.S.C. § 633a) protecting workers age 40 and older from    discrimination in hiring, discharge, pay, promotions, fringe    benefits and other aspects of employment;
- Equal Pay Act    (EPA) , 29 U.S.C. § 206(d), prohibiting gender-based    discrimination in the payment of wages to men and women    performing substantially equal work in the same    establishment;
- Americans    With Disabilities Act (ADA) , 42 U.S.C. § 12101 et seq.    and  Rehabilitation Act of    1973, as amended , 29 U.S.C. § 791 et seq., prohibiting    discrimination against individuals with disabilities.
- Civil    Rights Act of 1991 , Pub. L. 102-166, 105 Stat 1071, as    amended, creating certain remedies for prevailing parties and    prohibiting certain discriminatory practices.

The primary EEOC regulations governing federal sector  proceedings are 29 C.F.R. Part  1614 and EEO  MD-110.

What is an administrative  judge?

An administrative judge (AJ) is an EEOC employee who  independently decides discrimination complaints of federal  employees. All EEOC AJs are highly skilled and knowledgeable  attorneys, with respect to the federal sector hearing process and  the relevant law. When the EEOC office responsible for your  geographic area receives your request for a hearing, an AJ will  be assigned to oversee all aspects of your case. The AJ will  issue a variety of orders designed to  ensure fair and expeditious processing of your case, will analyze  the applicable law and the evidence and issue a decision.

What is a hearing?

An administrative hearing pursuant to   29 C.F.R. §1614.109 is similar to a trial before a judge  at the courthouse. As the presiding official, the AJ acts as both  the judge and jury. Proceedings, for the most part, are informal.  Parties generally are permitted to make opening and closing  statements, offer into evidence witness testimony and documents,  examine and cross-examine witnesses and raise objections and  obtain rulings on objections from the AJ.

Do I need an attorney or may I  represent myself?

You are not required to retain an attorney or have another  person represent you. You may represent yourself (pro se). If you  choose to represent yourself (proceed pro se,) you are expected  to be familiar with the EEOC's rules of practice and procedure  and be prepared at the hearing. At the hearing, you are required  to proceed first with presentation of evidence that supports your  allegations of discrimination. At all times you carry the  ultimate burden of proving your case with relevant and material  evidence. Given the importance of the hearing, it may be  advantageous for you to retain an attorney or designate a  knowledgeable co-worker, union official or other individual to  represent you in the case. If you designate someone to represent  you, you are expected to act through your representative. You are  ineligible to receive reasonable attorneys' fees as part of any  award in the case unless you are represented by an attorney.Can I resolve my complaint  without a hearing?

Yes. Settlement of your case without the necessity for a  hearing or issuance of a decision by the AJ is highly encouraged.  Settlement discussions are permissible at any stage of  proceedings. During settlement discussions, you and the agency  representative are expected to discuss and consider specific  ideas, methods and means of resolving the dispute. It is  important you understand that both parties may be required to  compromise for there to be any real prospect for a settlement.  Discussions that merely restate and reinforce each party's  position are unlikely to resolve the complaint and, therefore,  are discouraged. Alternative methods or means of dispute  resolution ("ADR") afford you and the agency opportunities to  craft creative settlement solutions. Ideally, you should  undertake ADR after discovery is completed and well in advance of  the scheduled hearing. In addition to contacting the agency  representative during the first 30-days after receipt of the  Acknowledgment and Order, if no settlement is reached, the AJ may  direct you and the agency representative to again contact each  other before the hearing to jointly assess prospects for  settlement. Neither party, however, is obligated to settle. If  the parties are unable to settle the dispute, the AJ will decide  the case.

If you and the agency are able to reach a settlement, you are  required to execute a written settlement agreement (or memorandum  of agreement) and promptly deliver a copy to the AJ. The AJ also  can allow the parties to go on the record and state the  settlement terms. Any previously scheduled pre-hearing conference  or hearing will not be cancelled until the settlement is  finalized. Additionally, if a hearing is scheduled, the parties  may not release witnesses or the court reporter unless the AJ  expressly authorizes you to do so.What if I need an  interpreter?

If you or any witness you wish to have testify at the hearing  require the services of a foreign language or sign language  interpreter, you should promptly notify the AJ. If appropriate,  the AJ will order the agency to provide one.

## Before The Hearing

How will I know when EEOC  has my case?

Generally, EEOC will assign an AJ to your case as soon as your  hearing request is received. To avoid  unnecessary delay, make sure you file your request with the EEOC  office responsible for your geographic area. Consult your EEO  manager or counselor. You will know EEOC has your case when you  receive the Acknowledgment and Order from  the clerk or AJ assigned to your case.

What are an Acknowledgment and  Order or Supplemental Acknowledgment and Order?

The Acknowledgment and Order is a  standardized form used by EEOC that, among other things,  acknowledges EEOC received your request for hearing, identifies  the AJ to whom your case has been assigned, establishes deadlines  by which you and the agency must complete certain tasks  (*e.g.*, initiate and complete discovery) and highlights  various practices and procedures that will govern processing of  your case.

The Supplemental Acknowledgement and  Order (and similarly named orders) is comparable to "local  rules" used by the courts. This order identifies the particular  practices and procedures which, in addition to those specified in  the Acknowledgment and Order, are used by the AJ assigned to your  case. Keep in mind practices and procedures differ somewhat among  EEOC offices and among AJ's within offices.

You and your representative should read these orders as soon  as you receive them and promptly comply with each and every  provision. Any non-compliance by you or your representative may  result in the AJ's imposition of sanctions or issuance of orders  or rulings detrimental to your case. These Acknowledgement and  Orders are subject to change. Consequently, you should read the  orders issued in your case. Do not rely on your or your  representative's knowledge of the contents of orders issued in  other cases.

What is summary  judgment?

Commission regulations allow an AJ to render a decision  without a hearing. This procedure is commonly referred to as  summary judgment. See   29 C.F.R. §1614.109(g). The regulations are patterned  after the summary judgment procedure set forth in Rule 56 of the  Federal Rules of Civil Procedure. Summary judgment is appropriate  where the AJ determines, given the legal and evidentiary  standards that apply to the case, no genuine issue of material  fact exists. Summary judgment is not a disfavored procedural  shortcut. Rather, it is an integral part of the EEO hearing  process and is designed to secure for the parties, a just, speedy  and inexpensive determination of the complaint. Summary judgment  proceedings may be initiated by the AJ or by one or both  parties.

Unlike a hearing, in summary judgment proceedings the AJ does  not decide who is telling the truth (make credibility  determinations) or weigh the evidence. Rather, the AJ's function  is to determine whether, given the facts which are presented and  the law that controls, the non-moving party (usually the  complainant) can prevail. In summary judgment proceedings, the  evidence of the non-moving party is believed and all justifiable  inferences are drawn in the non-moving party's favor.

An issue of fact is "genuine" if the evidence allows the AJ to  find in favor of the non-moving party. A fact is "material" if it  has potential to affect the outcome of the case. If a case can  only be resolved by weighing conflicting evidence, summary  judgment is not appropriate. Additionally, the AJ properly can  consider summary judgment only after the record has been  adequately developed.

To successfully defend against the agency's motion for a  decision without a hearing (summary judgment), you or your  representative must identify for the AJ each and every material  fact you dispute. You will need to point out to the AJ where  disputed facts exist in the documents in the agency's report of  investigation, additional documents obtained during discovery or  witness affidavits. Only witness affidavits that have been sworn  to before a notary public or non-sworn declarations are  acceptable summary judgment evidence. Remember, identifying  *disputed* facts is more important than citing or arguing  the law or facts that are not in dispute. Failure to respond to  the agency's summary judgment motion will not result in the  automatic grant of the agency's motion. But, if you do not  respond your chances of defeating the agency's motion are greatly  diminished.

What is a pre-hearing  conference?

A pre-hearing conference is a conference held before the  evidentiary hearing (usually telephonically), between the AJ and  the parties or their representatives. At the initial pre-hearing  conference, be prepared to discuss the following matters: (1)  identification and refinement of the issues to be decided, (2)  possibility of obtaining stipulations (agreements between the  parties regarding an aspect(s) of the claim), (3) disposition of  pending motions, (4) assessment of your case's settlement  potential, (5) approval/disapproval of prospective witnesses, (6)  scheduling the case for an evidentiary hearing and (7) any other  matter likely to facilitate final disposition of the case.

At any point in the pre-hearing phase, the AJ may conduct  pre-hearing conferences or either or both parties may request  pre-hearing conferences to discuss any matter concerning the  case.

Usually, the agency representative is responsible for placing  all pre-hearing conference calls. Your representative and you are  responsible for ensuring the agency representative is provided  your current telephone numbers. Unless the AJ directs otherwise,  if you have a representative, so long as your representative  attends, you do not have to be present for pre-hearing  conferences.

What is an evidentiary  hearing?

In a summary judgment proceeding, the AJ decides the case  solely on the basis of evidence contained in the written record  (including evidence developed during discovery) and based on the  applicable law. An evidentiary hearing, on the other hand, is a  trial-like proceeding where parties are permitted to offer into  evidence documents and live witness testimony. Generally, in an  evidentiary hearing parties are permitted to make opening and  closing statements, examine and cross-examine witnesses and raise  objections and obtain rulings on objections from the AJ. A  proceeding is an "evidentiary hearing" only if witnesses testify  under oath or affirmation and a verbatim record of the proceeding  is made.

What can happen if I fail to  comply with the AJ's orders?

Failure of either party to comply with the AJ's orders can  have serious consequences. If you or your representative violate  the AJ's orders, the AJ is likely to issue a Show Cause Order  directing you to explain yourself and state good reasons why you  or your representative should not be sanctioned. Possible  sanctions include dismissing your request for a hearing and  return of the complaint to the agency for issuance of a final  decision, excluding favorable documents or witness testimony or  drawing an adverse inference about certain evidence or witnesses.  In certain situations, the AJ may dismiss your complaint  outright. Remember, the AJ's orders are intended to facilitate  orderly and expeditious processing of your case. Your and your  representative's compliance with the AJ's orders will help ensure  that you receive a fair, well-ordered and timely hearing. The AJ  requests and expects your and your representative's full  cooperation in helping to achieve this objective.

What should I do if the  agency will not approve official time for hearing  preparations?

If you and your representative are employees of the agency  where the complaint arose and was filed, and if you otherwise are  on duty, you both are entitled to a reasonable amount of official  time during both the informal counseling and later phases of the  complaint process to present your complaint and respond to the  agency's requests for information. What is "reasonable" depends  on the particular circumstances of your complaint. If the agency  denies your request for official time, the agency must document  the denial. You may request that the AJ review the agency's  action and issue whatever orders are appropriate. See Chapter 6,  Section VIII(C) of the Equal Employment Commission's Management  Directive 110 (EEO MD-110), as revised, Nov. 9, 1999.

What should I do if I cannot  attend the hearing on the date it is scheduled?

If you are unable to attend the scheduled hearing, then as  soon as practical, you should request the AJ to reschedule your  case. If the request for a delay is for medical reasons, you must  provide the AJ suitable medical documentation. Your hearing will  be rescheduled only if you can show sufficient good  reasons for the continuance. Keep in mind the AJ only has 180  days in which to decide your complaint and yours is not the only  case assigned to the AJ. The AJ, therefore, only has a limited  number of hearing dates. It may not be possible for the AJ to  re-schedule your hearing without incurring unacceptable  additional delay. Rescheduling your hearing is not  guaranteed.

If I send in a motion for a  continuance and have not heard anything, must I still attend the  hearing?

Yes. Do not assume because you requested a continuance your  request will be granted. Unless you receive a written order or  the AJ otherwise notifies you or your representative that the  hearing is rescheduled, assume your motion has been denied,  finalize your hearing preparations and appear at the hearing.

Do I have the right to ask  the agency for information about my case?

Yes. You may engage in what is referred to as "discovery"  (obtaining information about the case from the opposing party  prior to the hearing). Discovery may be "informal" or "formal."  Informal discovery usually involves parties voluntarily  exchanging documents and other information, interviewing (instead  of deposing) potential witnesses, and other voluntary measures.  Formal discovery is a highly structured process involving written  questions (interrogatories), written requests for production of  documents and oral depositions of parties or witnesses. Formal  discovery is a complicated, time-consuming and oftentimes costly  undertaking. For example, whichever party initiates action to  depose a witness is responsible for the court reporter's costs.  These costs oftentimes are hundreds of dollars. Not every case  requires discovery. Procedures and time frames for conducting  discovery are set out in the Acknowledgment and Order. In some  EEOC offices, you must notify the AJ of your intent to begin  discovery and of the substance of the discovery required. The AJ  may determine the appropriate scope of discovery. See Chapter 7,  Section IV of EEO MD-110.

How do I make sure that a  witness I need for my case appears at the hearing?

Before a witness is permitted to testify at the hearing you  must seek approval from the AJ. Your request must be in writing.  Always provide the agency a copy. Your request must include  names, positions or job titles, and locations of the witnesses,  and you should list your own name as a witness, showing that you  intend to testify. You also should number each witness on your  list. Include a brief description of what you expect the  witnesses to say. The AJ will only approve witnesses whose  testimonies are relevant and material to the issues being decided  and are not repetitive of other witness testimonies. Focus on  having witnesses testify who personally know important facts  about your case (as opposed to witnesses whose testimonies simply  repeat what they have been told about your case, or want to talk  about their own workplace grievances or discrimination  complaints). The AJ may disapprove some or all of your witnesses  if you submit your witness list after the established deadline  and are unable to satisfactorily explain your tardiness.

If witnesses approved by the AJ are current employees of the  United States Government, the agency arranges for the witnesses  to appear at the hearing and is responsible for any related  costs. The AJ cannot compel witnesses to attend the hearing who  are not currently employed by the Federal Government  (*e.g.*, former federal employees who have resigned or  retired). You are responsible for getting non-federal employee  witnesses to voluntarily appear and testify for you. Any costs  related to voluntary appearance of these witnesses are your  responsibility. The agency must notify you or your representative  as soon as practical if, for whatever reason, an approved witness  the agency was ordered to make available subsequently becomes  unavailable to testify at the scheduled hearing.

How should I prepare for the  hearing?

Be as prepared as possible. Make sure you know the facts  supporting your discrimination allegations. Remember, the AJ only  has authority to decide employment discrimination claims.  Complaints that are strictly workplace grievances,  union-management disputes, workers compensation appeals, etc.,  properly should be pursued in other forums. Also make sure you  are familiar with the "elements of proof" needed to establish a  prima facie case of discrimination. There are different elements  of proof for the various types of discrimination. Consult the  section of the EEOC web site (www.eeoc.gov) entitled, "Discrimination By Type: Facts and  Guidance".

Before the scheduled hearing you should mark for  identification with sequential numbering all documents you intend  to offer into evidence (*e.g.*, Complainant's Exhibit 1).  Provide the AJ, the agency representative and yourself copies of  your proposed exhibits. If you have more than 10 documents you  should prepare an index of your exhibits.

An evidentiary hearing consists of two parts - a liability or  "merits" component and a remedies or "damages" component. Unless  the AJ separates (bifurcates) the hearing into two distinct  parts, come to the hearing prepared to present evidence  supporting your claim for compensatory damages immediately  following your presentation of liability evidence. Bring with you  to the hearing all medical records, receipts, cancelled checks  and other documents you intend to use to prove your compensatory  damages claim. Remember, if the AJ does not bifurcate the  hearing, once you "rest" your case, the AJ may not permit you to  later present additional evidence.

May I contact the AJ to  discuss my case?

Generally, *ex parte* (one party) communication with  the AJ is prohibited. If you wish to discuss a matter with the AJ  concerning the merits of your case, first contact the agency  representative to determine whether the agency wants to  participate or respond. If you do not, the AJ will likely  instruct you to contact the agency representative and arrange a  telephone conference. You also must provide the agency  representative a copy of every document you  send the AJ. E-mail communication with the AJ may be restricted  or prohibited. Consult the AJ before e-mailing anything.

You may communicate with the AJ without first notifying the  agency that you wish to discuss purely "procedural" matters. For  example, you may contact the AJ to ask for clarification of an  order, rule or regulation, confirm a pending deadline or setting,  or discuss the logistics of the hearing. If you are uncertain  whether it is proper to contact the AJ *ex parte*, you  should first contact the agency representative or the AJ's  administrative assistant.

Where will my hearing be  held?

Generally, the AJ holds the evidentiary hearing at the  Agency's facility where the complaint arose. The AJ, however, may  conduct the hearing at other locations after considering factors  such as locations of the parties, numbers and locations of  witnesses, and the AJ's and other hearing participants' travel  requirements. Most hearings are conducted in a "conference room"  setting.

What is ADR?

Alternate  dispute resolution (ADR) is a non-adversarial process or  method for resolving disputes. The most popular and commonly used  ADR technique is mediation.  While ADR is generally voluntary, EEOC requires that agencies  offer ADR to complainants during the informal counseling and  formal investigation phases of the complaint process. As a  general rule, the AJ will not order the parties to participate in  ADR if either or both object. So as not to unreasonably delay the  hearing, if the parties agree to mediate the dispute, the AJ may  issue appropriate orders to ensure the mediation is performed  expeditiously.

Where can I locate sample  forms to help me prepare for the hearing?

index

## The Hearing

How is the hearing  conducted?

Hearing participants generally consist of the AJ, the  complainant, the parties' hearing representatives, a management  official representing the agency, approved witnesses and the  court reporter. Hearings are not open to the public. Spectators,  therefore, are not allowed. Except for you, other witnesses are  allowed in the hearing room only when actually testifying.  Occasionally, other AJs, agency attorneys, EEO officials, union  officials, etc. are allowed to observe hearings for training  purposes. The length of hearings varies depending on the  complexity of the issues, numbers of witnesses, etc. Generally,  hearings are conducted during regular business hours.  Occasionally, however, especially if the hearing is scheduled for  a single day, the hearing may continue until it is completed.

The basic components of an evidentiary hearing are the  following:

- Pre-hearing Conference  The AJ may conduct a    pre-hearing conference (on or off the record) immediately    before the start of the evidentiary hearing to rule on any    outstanding motions or issues, discuss settlement    possibilities, obtain stipulations, clarify the issues to be    decided and discuss the logistics of the hearing.
- AJ's Introductory Statement  The AJ may give an    introductory statement on the record highlighting the hearing    procedures to be followed for the hearing.
- Parties' Opening Statements  The AJ most likely will    permit the agency and you to give opening statements explaining    what each intends to prove at the hearing. Keep in mind an    opening statement is not evidence. Generally, you or your    representative will make your statement first, followed by the    agency representative. Either or both parties may forego    opening statements. AJs generally welcome well-crafted opening    statements alerting them to witness testimony, documents or    other evidence that will be introduced during the hearing with    an explanation of their relevance to the issues being    decided.
- Presentation of Evidence  The burden of proof is on    you to show the agency is liable for discriminating against you    and that you are entitled to certain relief. You will proceed    first with presentation of evidence. Evidence may take the form    of documents, live witness testimony, photographs, objects,    etc.
- Witnesses  Only witnesses approved by the AJ are    permitted to testify. The AJ will administer oaths to the    witnesses directing them under penalty of perjury to testify    truthfully. Whoever calls a witness examines the witness first.    The opposing party may then cross-examine the witness. The AJ    also may question any witness. Parties usually are given at    least one opportunity to ask follow-up questions of each    witness before the witness is dismissed. You should question    each witness thoroughly. Do not count on the AJ to permit you    to recall a witness who has been dismissed for "rebuttal" or    "impeachment."
- Exhibits  Before the hearing you should mark for    identification with sequential numbering any additional    documents you intend to offer into evidence ( e.g. ,    Complainant's Exhibit No. 1). Provide the AJ and the agency    representative, and retain for yourself copies of your proposed    exhibits. If you intend to offer more than 10 exhibits, also    prepare an index briefly describing each document. Documents    that make up the agency investigative file are automatically    admitted into evidence. You do not need to offer them into    evidence again at the hearing.
- Objections  The agency or you may object to any    question asked a witness or any document offered into evidence.    Remember that strict rules of evidence do not apply. For    example, some hearsay evidence is permitted. If you or your    representative wishes to object, do not argue with the agency    representative. Clearly identify the basis for your objection    and await the AJ's ruling. An example of a trial objection is,    "I object to the agency's attempt to introduce into evidence a    witness affidavit that is not notarized or verified pursuant to    28 U.S.C. §1746." The AJ will either sustain your    objection (in which case the document will be excluded) or    overrule your objection (in which case the document will be    admitted).
- Closing Statements  Unless the AJ tells you    differently, parties may give closing statements summarizing    the evidence and points of law they want the AJ to consider in    deciding the case. Keep in mind that closing statements are not    evidence. The AJ will decide whether the statement will be    written or oral. If written, statements will include any    post-hearing briefing ordered by the AJ. If oral, statements    generally are made immediately after both parties rest their    cases, or at such later time and date as the AJ may order. If    given at the close of the hearing, the AJ will give you or your    representative a sufficient period of time to organize your    thoughts.

What is "burden of  proof"?

The burden is on you to prove through relevant and material  evidence that the agency discriminated against you and are  entitled to certain relief. In analyzing the evidence, the AJ  will apply a "preponderance of the evidence" standard, not the  "beyond a reasonable doubt" standard applicable in criminal  proceedings. The term "preponderance of the evidence" refers to  the deliberative process the AJ uses to determine which evidence  in the case produces the stronger impression, has the greater  weight and is the more convincing. This is also known as the  burden of persuasion.

Who has the burden of proof -  the complainant or the agency?

You carry the burden at all times of proving your allegations  of discrimination and entitlement to relief.

What happens if I do not  attend the hearing or do not participate in the proceedings?

You have the right to withdraw your request for a hearing at  any time. If you do, your hearing request will be dismissed and  the complaint retuned to the agency for issuance of a final  decision in the time and manner specified in   29 C.F.R. §1614.110. If you wish to withdraw, simply  provide the AJ a written statement to this effect and furnish the  agency representative a copy. The AJ will promptly issue a  dismissal order and cancel any scheduled pre-hearing conference,  evidentiary hearing or other proceeding.

If you fail to attend the scheduled hearing or participate  fully in proceedings after appearing, the AJ may direct you to  explain your actions and state the reasons you should not be  sanctioned for failure to prosecute your complaint. If warranted,  the AJ may dismiss your hearing request and return the complaint  to the agency for issuance of a final decision.

May I offer additional  documents at the hearing as evidence?

Yes. Keep in mind, however, that the documents making up the  agency report of investigation automatically are part of the  hearing record. You do not have to again offer these documents  into evidence at the hearing.

What should I wear to the  hearing?

There is no dress code for EEOC hearings. Most hearing  participants wear regular office dress.

How should I address the  AJ?

You should address the AJ deciding your case as "Judge".

How will the witness  testimony be recorded?

A qualified court reporter will prepare a verbatim transcript  of the hearing proceedings, including all witness testimony. The  agency is responsible for obtaining and paying for the court  reporter.

How do I get a copy of the  hearing testimony?

You will be provided one copy of the verbatim hearing  transcript free of charge.

Will the AJ give me a  decision at the hearing?

After closing the hearing record the AJ will render a decision  in your case. The AJ may choose to issue an oral decision or s/he  may issue a written decision at a later date. If the AJ chooses  an oral decision, the AJ may issue the decision immediately  following closing of the hearing, or the AJ may schedule a later  telephone conference with the parties and the court reporter.

Do I have to pay for my  hearing?

No. You do not have to pay a filing fee or other charges in  connection with the hearing. You and the agency, however, are  responsible for any costs you incur during the course of  discovery or in preparing for the hearing. If the AJ decides the  case in your favor (finding that you were discriminated against  by the agency and are entitled to relief), the AJ may order the  agency to reimburse some or all of your discovery and hearing  preparation costs and, if you are represented by an attorney,  reasonable attorney's fees.

## After The Hearing

After the hearing, may I  provide the AJ additional information about my case?

Generally, after the parties rest their cases (or after the  parties give closing statements) the AJ closes the hearing  record. Thereafter, neither party may provide the AJ additional  evidence or information concerning the case. Occasionally, after  the hearing, the AJ asks the parties to brief a particular issue  or the AJ may hold the hearing record open to permit either or  both parties to file additional evidence. This is purely  discretionary with the AJ. It is best to submit all of your  evidence to the AJ at the hearing, before you announce you have  "rested."

Will I receive a copy of the  AJ's decision?

Yes. You will be provided a copy of the AJ's decision. In  addition, you will be provided a copy of the hearing record, an  order entering judgment for the prevailing party and a notice to  the parties containing information about issuance of the agency's  final order, appeal rights and other matters.

When will the AJ issue the  decision?

EEOC's goal is for cases to be decided within 180 days. The AJ  will issue his or her final decision as soon as practical after  the hearing.

What is the Final Agency  Order or Final Agency Decision?

In addition to rendering a decision in the case, the AJ also  issues an order entering judgment for whichever party prevailed  in the case. The AJ's decision and order and a copy of the  hearing record will be sent to the designated agency  representative responsible for issuing a final order in the case.  The agency has 40 days from the time it receives these  instruments to notify you whether the agency will fully implement  the AJ's decision and notify you of your appeal rights. If the  agency's final order does not fully implement the AJ's decision  in the case, the agency must simultaneously file an appeal in  accordance with   29 C.F.R. §1614.110(a).

The agency is required to issue a final decision in the time  and manner specified in   29 C.F.R. §1614.110(b) if you elect not to request a  hearing by an AJ (and instead request the agency to immediately  issue a final decision in your case) or, if for any reason, the  AJ dismisses your hearing request and returns the complaint for a  final agency decision.

Can I appeal the agency's  final order or decision?

Yes. If you are dissatisfied with the Agency's final order  implementing the AJ's decision, you may appeal to EEOC's Office  of Federal Operations (OFO). The AJ and the agency will inform  you of your appeal rights.

Alternatively, you may file a civil action in an appropriate  United States District Court lieu of an administrative appeal to  OFO. In choosing this course of action, you should first review  the district court's regulations or rules.

## Index of Sample Forms and  Orders

| 1. Request for      a Hearing                 | The agency may provide you a special form. If not, you      may use this form to request a hearing by an AJ.                                                                                                                                                                                                                     |
|-----------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 2. Acknowledgment and      Order              | This is the first order you will receive from the EEOC.      This is a standardized order informing you that the EEOC has      received your request for a hearing, identifies the AJ      assigned to your case and provides information concerning the      practices and procedures governing adjudication of your      case. |
| 3. Supplemental      Acknowledgment and Order | You may receive this order at the same time you receive      the Acknowledgment and Order. The order provides additional      information about practices and procedures governing      adjudication of your case.                                                                                                               |
| 4. Designation of      Representative         | This form accompanies the Acknowledgment and Order and is      for you to use to designate the person representing you in      the case and provide current mailing addresses and other      contact information.                                                                                                                |
| 5. Certificate of      Service                | This form should be attached to every motion, pleading or      other document you provide the AJ. It shows you provided the      agency representative a copy.                                                                                                                                                                   |
| 6. Notice To      Parties                     | This document accompanies the Order Entering Judgment      issued at the conclusion of the case. It contains information      concerning issuance of the agency's final order, appeal      rights and other matters.                                                                                                             |
| 7. Pleadings      Verification                | All witness affidavits and certain other motions and      pleadings (*e.g.*, Request to Postpone Hearing) must      be sworn or verified. Attach or include this language at the      end of the document.                                                                                                                       |

----

### Sample Form 1

Date:

U. S. Equal Employment Opportunity Commission  San Antonio District Office  ATTN: Hearings Unit  5410 Fredericksburg Road, Suite 200  San Antonio, TX 78229

Re: Request for a hearing

Dear Sir/Madam:

I hereby request a hearing by an EEOC administrative  judge.

> 
Complainant's name:

Complainant's current mailing address:

Agency name:

Agency Complaint No(s):

I certify that I sent a copy of this request to the following  agency official:

> 
Name:

Title:

Mailing Address:

Sincerely,

(Your signature)  Complainant

----

### Sample Form 2

[Case Caption]

**Acknowledgment and Order**

This acknowledges receipt of Complainant's request for a  hearing. 29 C.F.R. §1614.109 and Chapter 7 of EEOC  Management Directive 110, November 9, 1999 (EEO MD-110) govern  the conduct of hearings. The regulations and MD-110 are available  on the Commission's website at www.eeoc.gov.

The Administrative Judge whose name appears below has been  assigned to preside over this complaint. Failure to follow the  orders of the Administrative Judge or to comply with the  Commission's regulations may result in sanctions. See 29 C.F.R.  §1614.109 (f) (3). When a conflict between the parties  arises, the parties should attempt to resolve the conflict  themselves before bringing it to the attention of the  Administrative Judge.

I. Correspondence and Motions

Each party must provide the opposing party with a copy of all  correspondence that he/she sends to the Administrative Judge. The  attachment of a certificate of service may demonstrate that the  opposing party was provided a copy. Failure to provide a copy of  submissions to the opposing party may result in return of such  submissions without consideration. The parties are reminded of  their ongoing obligation to keep this office informed of their  current mailing address. Other than to clarify a procedural issue  or during alternative dispute resolution, it is inappropriate for  the parties to engage in ex parte (one-sided) communication with  the Administrative Judge.

Extensions of filing dates and postponements will not be  granted absent a prompt request in writing and a showing of good  cause. Failure by Complainant to obtain representation, or  failure of the Agency to assign this matter to a representative,  will not be grounds for postponement.

On any request or motion, the requesting party shall state  that he/she has made a good faith effort to resolve the matter  with the non-moving party and, where appropriate, indicate  whether the opposing party has an objection to the request or  motion. All motions should be accompanied by a proposed order  granting the relief requested in the motion.

II. Designation of Representative

The parties are entitled to be represented. However, the  complainant is not required to be represented. The EEOC does not  provide representatives for either party. Even if Complainant has  previously designated a representative for EEO counseling and  agency investigation of the complainant, he/she must renew that  designation for the purpose of the EEOC processing of this  complaint. The parties must inform this office of the name,  address and telephone number of their respective representative.  If that representative changes, or if a currently unrepresented  complainant obtains representation in the future, the party shall  notify the Administrative Judge and the other party  immediately.

III. Partial Dismissals

The parties have thirty (30) calendar days from receipt of  this Order to identify any claims the Agency has dismissed from  the complaint during the Agency investigative process pursuant to  29 C.F.R. § 1614.107 (a) and to comment on the  appropriateness of each dismissal. Once the opportunity for  identification and comment has passed, the Administrative Judge  will determine pursuant to 29 C.F.R. § 1614.107 (b) the  appropriateness of the Agency's decision to dismiss each claim.  If the Complainant fails to oppose in writing the dismissal of a  claim within the 30-day comment period, the opportunity to have  the dismissal reviewed by the Administrative Judge shall be  deemed waived.

IV. Settlement

Within 30 calendar days of receipt of this Order, the parties  are directed to contact each other to define the issue(s)  presented, to develop stipulations (i.e., agreements between the  parties that certain facts are true for purposes of adjudicating  this complaint) and to discuss settlement. The parties must  discuss specific settlement proposals. The Agency must designate  an individual with settlement authority to attend settlement  discussions convened by an Administrative Judge.

V. Discovery

The parties are hereby notified of their right to seek  discovery prior to the hearing in accordance with 29 C.F.R.  Section 1614.109(d). The parties must cooperate with each other  in honoring discovery requests. The parties are expected to  initiate and complete needed discovery with a minimum of  intervention by the Administrative Judge. **Except as  indicated below, copies of interrogatories, requests for  production of documents, requests for admissions, deposition  notices and transcripts, and responses to such should not be sent  to the Administrative Judge**.

- Discovery shall be completed within ninety (90) calendar    days from the date of receipt of this Order unless otherwise    directed by the Administrative Judge. If the parties agree    between themselves to extend discovery deadlines that would, in    turn, extend the 90-day deadline, the parties must seek the    Administrative Judge's prior approval.
- The method and scope of discovery shall be subject to the    following:
-    - Interrogatories shall be limited to one set. The set of        interrogatories shall contain no more than thirty (30)        questions including subparts.
  - Requests for production of documents must be specific        and identify the documents or types of documents requested.        Requests for production of documents shall contain no more        than thirty (30) requests including sub-parts.
  - Requests for admissions shall not exceed thirty (30) in        number including sub-parts.
  - The Agency must make employees available for        deposition. In addition, the Agency must arrange for the        appearance at deposition of former employees currently        employed by [other agencies of] the federal        government. 

Absent prior approval from the Administrative Judge, a party  must initiate discovery within twenty (20) calendar days of  receipt of this Order. If a party does not submit a timely  discovery request, the Administrative Judge may determine that  the party has waived the right to pursue discovery.

A party must respond to a request for discovery within thirty  (30) calendar days from receipt of the request. Requests for  discovery and objections to such requests must be specific. A  notice of deposition does not require a written response;  however, any objection to a notice of deposition must be served  promptly on the moving party. A deposition may be noticed and  taken at any time during the discovery period.

Discovery motions, including motions to compel, must be filed  within ten (10) calendar days after receipt of a deficient  response or after the response to the discovery is due, whichever  occurs first. **Motions to compel and other discovery  motions must be accompanied by the discovery requests and  responses and a declaration stating that the moving party has  made a good faith effort to resolve the discovery  dispute.** The declaration shall indicate the efforts made  to resolve the dispute and identify which items remain in  dispute. Statements in opposition to discovery motions must be  filed within ten (10) calendar days of receipt of the motion.  Rulings will be made based upon the written submissions. The  failure to timely file objections to discovery may result in the  objections being deemed waived.

VI. Sanctions for Failure to Follow Orders

Failure to follow this Order or other orders of the  Administrative Judge may result in sanctions pursuant to 29  C.F.R. §1614.109(f) (3). The Administrative Judge may, where  appropriate:

- 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;
- Consider the matters to which the requested information or    testimony pertains to be established in favor of the opposing    party;
- Exclude other evidence offered by the party failing to    produce the requested information or witness;
- Issue a decision fully or partially in favor of the    opposing party; or
- Take such other actions as appropriate.

VII. Decision Without a Hearing

Pursuant to 29 C.F.R. §1614.109(g)(1), a party may file a  motion for summary judgment if that party believes that some or  all material facts are not in genuine dispute and there is no  genuine issue as to credibility. **A motion for summary  judgment must include a statement of the undisputed material  facts.** Unless otherwise ordered by the Administrative  Judge, a motion for summary judgment must be filed not later than  fifteen (15) days after the close of discovery. The opposing  party will then have fifteen (15) days from receipt of the motion  in which to file a response. The moving party will then have five  (5) days from receipt of the response to file a reply. Motions  for summary judgment and responses to such motions shall contain  specific citations to reference evidence (*e.g.*, cite the  specific pages of the report of investigation, or other submitted  evidence in support of an argument).

The Administrative Judge may also issue summary judgment on  his/her own initiative, pursuant to 29 C.F.R. §1614.109 (g)  (3).

An Administrative Judge may also dismiss a complaint pursuant  to 29 C.F.R. §1614.109 (b) for any of the reasons set forth  in 29 C.F.R. §1614.107 (a). The Administrative Judge may  dismiss complaints on his/her own initiative, or upon the  Agency's motion to dismiss a complaint.

VII. Amendment and Consolidation of  Complainants

Pursuant to 29 C.F.R. §1614.106(d), the Complainant may  move to amend his/her complaint to add claims that are like or  related to the original complaint. In order to amend the  complaint, the Complainant shall submit a motion as early as  possible to the Administrative Judge stating the new claim, the  date(s) when it occurred, and why it is like or related to the  original complaint. The Administrative Judge may amend the  original complaint to include the new claim(s) if he/she finds  the new claim is like or related to the original complaint.  Motions to amend filed late in the process may be denied.

The Administrative Judge also has discretion to consolidate  complaints pursuant to 29 C.F.R. §1614.606. The parties  shall advise the Administrative Judge in writing of any other  complaint(s) pending at any stage of processing and should  include all case number(s) or other information identifying such  complaint(s).

  ________________________  JOHN A. SMITH  Administrative Judge

  Enclosure

----

### Sample Form 3

[Case Caption]

**Supplemental Acknowledgment and  Order**(1)

This order supplements the Acknowledgment and Order (or  Consolidated Acknowledgment and Order) previously issued in this  case. This order has been adopted to further standardize practice  and procedure in cases before Administrative Judges of the San  Antonio District Office.

Service and Receipt of Orders

1. Service of any order issued by the Administrative Judge on  the parties is complete upon mailing. The order will be presumed  to have been received by the parties not later than 5 calendar  days after mailing.

Correspondence and Motions

2. Faxed submissions are authorized. **Do not submit the  original via U.S. Mail or other delivery means if the item has  been previously faxed.** Unless expressly authorized by  the Administrative Judge, any submission faxed to any fax number  other than (210) 281-2520, or any submission that exceeds 20  pages in length, will be automatically rejected. Parties may not  circumvent the restriction on number of pages faxed by "batching"  submissions.

3. Any request or motion of a party requiring action by the  Administrative Judge will prominently indicate whether the matter  is opposed by the other party. All correspondence, requests and  motions will be dated (mm/eddy). Communication with the  Administrative Judge via e-mail is not authorized.

4. Parties and their representatives may not assume that a  motion or request filed with the Administrative Judge, *even  if unopposed by the other party*, will be approved. The mere  act of filing a motion or request will not operate to extend a  deadline or setting.

Citations To Legal Authorities

5. When citing to legal authorities in briefs and other  pleadings, parties are advised to focus on applicable statutes  and U.S. Supreme Court case law and on Commission case law,  regulations, directives and instructions. The case law of federal  circuit courts of appeal and district courts, while perhaps  persuasive, is not necessarily the *dispositive* law of  the case.

Designation of Representative

6. Within 10 days of receipt of this order, Complainant  (whether or not represented) and the Agency will complete and  file the "Designation of Representative" form attached to the  Acknowledgment and Order, or provide the specified information in  substantially similar written form. Additionally, within 5 days  of any withdrawal, change or substitution of a party's  representative, the party will give written notice. Once a  representative enters his or her appearance in the case, the  representative may not subsequently withdraw from representing a  party without requesting and obtaining the approval of the  Administrative Judge.

7. If represented, the parties will act through their  respective designated representatives in regard to all matters  involving the case. Pleadings filed in the case will be signed by  the representative, whose signature block will include the  representative's mailing address, telephone number and fax number  (if any) and indicate the party on whose behalf the  representative is acting (*e.g.*, Complainant's  Representative).

Settlement

8. **Settlement of cases without the necessity for a  hearing or issuance of a decision by the Administrative Judge is  highly encouraged.** During the course of settlement  discussions, the parties are expected to discuss and consider  *specific* ideas, methods and means of resolving all  matters in controversy, recognizing that compromises by both  parties may be required in order to reach a settlement.  Discussions that merely restate and reinforce the parties'  respective positions are unlikely to resolve the complaint and  are discouraged. Alternative methods or means of dispute  resolution ("ADR"), for example, mediation, affords parties the  opportunity to craft creative settlement solutions that  bi-lateral negotiations between the parties oftentimes do not.  Use of ADR, therefore, is encouraged. Ideally, ADR should be  undertaken after discovery is completed and well in advance of  the scheduled hearing. In addition to contacting each other  during the first 30-days after receipt of the Acknowledgment and  Order, if no settlement is reached, the parties are directed to  again contact each other during the week preceding the scheduled  pre-hearing conference and to jointly assess prospects for  settlement. During the pre-hearing conference the parties are  expected to brief the Administrative Judge concerning all prior  settlement efforts. Neither party, however, is obligated to  settle. If no settlement is forthcoming, a decision by the  Administrative Judge will be issued in due course, with or  without a hearing, as appropriate.

9. In the event a settlement is reached, the parties will  execute a written settlement agreement (or memorandum of  agreement) and promptly deliver a copy to the Administrative  Judge or, upon request, the hearing record may be opened and the  settlement terms read into the record. Any previously scheduled  pre-hearing conference or hearing will not be cancelled until the  foregoing is accomplished. If a hearing has been scheduled, the  parties may not release the witnesses or the court reporter  unless authorized by the Administrative Judge.

Discovery

10. Discovery that is timely and properly conducted  facilitates expeditious adjudication of complaints.  Non-compliance or untimely compliance with parties' legitimate  discovery requests, or hyper-technical responses or objections to  discovery requests, defeat this purpose and are discouraged, and  may subject the parties or the parties' representatives to  sanctions.

11. Parties are encouraged to enter into discovery agreements  tailored for the particular case, failing which, the provisions  and deadlines contained in the Acknowledgment and Order will be  strictly followed and enforced. Requests for extensions of  discovery deadlines delay orderly processing of the case and are  discouraged. Extensions will be granted only upon a showing of  good cause.

12. Parties will not send copies of discovery requests or  discovery responses to the Administrative Judge unless they are  exhibits to a pending discovery motion (*e.g.*, a motion  to compel).

13. Parties are requested to give the Administrative Judge  written notice of the date discovery is commenced or if discovery  is waived.

Witnesses

14. The parties may request approval of witnesses to testify  at the hearing. The request must be made to the Administrative  Judge in writing and a copy provided to the opposing party. The  request will include the name, position, and location of each  witness. The request also will number each witness and will  include a synopsis of the expected testimony of the witness in  relation to the issue(s) to be decided in the case. Only  witnesses whose testimonies are relevant and material to the  issue(s) to be decided, and which are not repetitive of other  witness testimony, will be approved. Absent a showing of good  cause, submission of a witness list after the specified deadline  may result in disapproval of some or all of the requested  witnesses.

15. If an approved witness is an employee of the United States  Government, the Agency will arrange for the witness to appear at  the hearing and will be responsible for any costs. The  Administrative Judge cannot compel the attendance of a witness at  the hearing who is not currently employed by the Federal  Government (*e.g.*, a former federal employee who has  resigned or retired). Attendance of any approved witness who is  not currently a federal employee is the responsibility of the  party requesting the witness. The Agency will notify Complainant  or his/her representative as soon as practicable if, for whatever  reason, any approved witness the Agency was ordered to make  available, will be unavailable to testify at the hearing.

16. It is assumed that the Complainant intends to testify at  the hearing and, therefore, is automatically approved as a  witness.

Hearing Exhibits

17. Documents comprising the Report of Investigation  constitute a portion of the record of this case, are deemed  admitted into evidence and need not be re-offered into evidence  by either party. Copies of documents not already part of the  Report of Investigation, which either party intends to offer into  evidence at the hearing, will be pre-marked for identification  and delivered to the Administrative Judge at the start of the  hearing, and to the opposing party (or his/her representative) at  least 3 work days prior to the start of the hearing. Complainant  will pre-mark exhibits, individually, using the designations,  "C-1, C-2, C-3", *et seq.* The Agency will use the  designations, "A-1, A-2, A-3", *et seq.* Unless authorized  by the Administrative Judge, exhibits comprising more than 20  pages may not be faxed to the Administrative Judge.

18. The Court Reporter is the official exhibit custodian.  Exhibits admitted into evidence at the hearing will be provided  to the Court Reporter and made part of the hearing record.  Parties should provide the Court Reporter a complete set of  exhibits at the start of the hearing and, if there are more than  5 exhibits, will also prepare a list or index of the proposed  exhibits.

Pre-hearing Conference

19. At the initial pre-hearing conference to be scheduled in  this case, the parties will be prepared to discuss the following  matters:

- Identification and simplification of all issues comprising    the complaint;
- Possibility of obtaining stipulations of fact;
- Status of discovery;
- Disposition of pending motions and resolution of    objections;
- Settlement of the case;
- Resolution of the complaint using mediation or another ADR    method or procedure.
- Scheduling the case for a hearing on the merits (have    calendars available); and
- Any other matter likely to facilitate orderly and timely    disposition of the case.

Duration of Hearings, Rest Breaks, Etc.

20. Hearing proceedings generally will be limited to 8 hours  per day. If the hearing is scheduled for a single-day hearing,  proceedings generally will continue until completed. The parties  should prepare and limit their hearing presentations to the  available time. Generally, parties will be afforded 10-minute  rest breaks mid-morning and mid-afternoon each hearing day. As  meal times approach, the Administrative Judge, after consulting  with the parties and their representatives, will decide whether  to break for a meal and, if so, for how long. Hearing  participants may ask the Administrative Judge for additional rest  breaks, as necessary.

Re-Scheduling

21. Excepting cases involving *bona fide* emergencies,  a party seeking to re-schedule a pre-hearing conference, hearing  or other proceeding set by the Administrative Judge, must file a  written request that has been sworn to before a notary public or  verified via an unsworn statement. If the requested delay is for  medical reasons, suitable medical documentation must be provided.  Continuances will be granted only upon a showing of good  cause.

Professional Responsibility

22. A representative who enters an appearance in a Commission  EEO proceeding becomes subject to disciplinary action by the  Administrative Judge or the Commission for any improper conduct  engaged in by the representative at any stage of the proceeding.  See EEO MD-110, p. 7-28. A representative cannot avoid the  Commission's jurisdiction in disciplinary matters by withdrawing  from representation, withdrawing the complaint or request for  hearing, or by removing the complaint to federal court. Any  attorney representative who engages in flagrant improper conduct  may be referred to the disciplinary committee of the appropriate  bar association. See 29 C.F.R. §1614.109 (e); EEO MD-110, p.  7-29.

Sanctions For Failure To Follow Orders

23. Failure of a party or a party's representative to comply  with this or any other order issued by the Administrative Judge,  following notice to show cause, is subject to appropriate  sanctions, including the drawing of adverse inferences, exclusion  of witnesses or evidence, issuance of decisions or rulings  adverse to the non-complying party, or dismissal of all or a  portion of the complaint.

  ________________________  JOHN A. SMITH  Administrative Judge

----

1. This order is periodically  revised. Parties and their representatives, therefore, should  thoroughly read this order and not rely on their knowledge of the  contents of earlier versions of the order.

----

### Sample Form 4

[Case Caption]

**DESIGNATION OF REPRESENTATIVE**

OPTION A: ELECTION TO PROCEED WITH A  REPRESENTATIVE

```

The following individual is designated as the representative for the ____COMPLAINANT 
or ___ AGENCY in the above-captioned case.

____________________________________________________________________________
                 Name of Representative/Telephone No. /Facsimile No.
                                 
Representative's Mailing Address: __________________________________________
                 __________________________________________
                 __________________________________________
                 __________________________________________
                 __________________________________________
                 E-mail Address: __________________________
```

OPTION B: ELECTION TO PROCEED WITHOUT A  REPRESENTATIVE

```

Check this block [ ] if the Complainant elects to proceed without a representative 
in the above-captioned case. Complainant must immediately notify the Administrative 
Judge and the Agency Representative, in writing, if he/she obtains representation 
at a later date. 

                                    _____________________________
                                     (Party's signature and date)

Complainant's current contact information:

Mailing address:           __________________________________________
                           __________________________________________
                           __________________________________________
                           __________________________________________
Telephone Number:          __________________________________________
Fax Number:                __________________________________________
E-mail Address:            __________________________________________
```

----

### Sample Form 5

### Certificate of Service

On this date, a true copy of the attached instrument was  mailed to the below-named individuals. **NOTE: For  timeliness purposes it will be presumed that this instrument was  received within five (5) calendar days of the mailing date  specified below.**

[Name and mailing address]  Administrative Judge

[Name and mailing address]  Agency Representative

DATED ___________________

                                                                   ________________________                                                                   [Printed Name]                                                                   Complainant [Complainant's Representative]

----

### Sample Form 6

NOTICE TO PARTIES

**To The Agency**

Within forty (40) days of receiving this decision and the  hearing record, you are required to issue a final order notifying  the Complainant whether you will fully implement this decision.  You should also send a copy of your final order to the  Administrative Judge.

Your final order must contain a notice of the Complainant's  right to appeal to the Office of Federal Operations, the right to  file a civil action in a federal district court, the name of the  proper defendant in any such lawsuit, the right to request the  appointment of counsel and waiver of court costs or fees, and the  applicable time limits for such appeal or lawsuit. A copy of EEOC  Form 573 (Notice of Appeal/Petition) must be attached to your  final order.

If your final order does not fully implement this decision,  you must simultaneously file an appeal with the Office of Federal  Operations in accordance with 29 C.F.R. 1614.403 and append a  copy of your appeal to your final order. See Appendix O, EEO  MD-110. You also must comply with the Interim Relief regulation  set forth at 29 C.F.R. 1614.505.

**To The Complainant**

You may file an appeal with the Commission's Office Federal  Operations when you receive a final order from the Agency  informing you whether the Agency will or will not fully implement  this decision. 29 C.F.R. 1614.110 (a). From the time you receive  the Agency's final order, you will have thirty (30) days to file  an appeal. If the Agency fails to issue a final order, you have  the right to file your own appeal any time after the conclusion  of the Agency's 40-day period for issuing a final order.  *See* EEO MD-110, p. 9-3. In either case, please attach a  copy of the AJ's decision with your appeal.

Do not send your appeal to the Administrative Judge. Your  appeal must be filed with the Office of Federal Operations at the  address set forth below and you must send a copy of your appeal  to the Agency at the same time you file it with the Office of  Federal Operations. You must certify, in or attached to your  appeal to the Office of Federal Operations, the date and method  by which you send a copy of your appeal to the Agency.

**Where To File An Appeal**

All appeals to the Commission must be file by mail, hand  delivery or facsimile.

**BY MAIL:**

Director, Office of Federal Operations  Equal Employment Opportunity Commission  P.O. Box 77960Washington, DC 20013

**BY PERSONAL DELIVERY:**

Director, Office of Federal Operations  Equal Employment Opportunity Commission  131 M Street, NE Suite 5SW12G Washington, DC 2050

**BY FACSIMILE:**

Telephone No. (202) 663-7022.

NOTE: Faxes over 10 pages will not be accepted.

**Compliance With Agency Final  Action**

Pursuant to 29 C.F.R. 1614.504, the Agency's final action that  has *not* been the subject of an appeal to the Commission  or a civil action is binding on the Agency. If the Complainant  believes that the Agency has failed to comply with the terms of  the decision, Complainant shall notify the Agency's EEO Director,  in writing, of the alleged noncompliance within 30 days of when  the Complainant knew or should have known of the alleged  noncompliance. The Agency shall resolve the matter and respond to  the Complainant in writing. If the Agency has not responded to  the Complainant, in writing, or if the Complainant is not  satisfied with the Agency's attempt to resolve the matter, the  Complainant may appeal to the Commission for a determination of  whether the Agency has complied with the terms of its final  action. The Complainant may file such an appeal 35 days after  serving the Agency with allegations of non-compliance, but must  file an appeal within 30 days of receiving the Agency's  determination. A copy off the appeal must be served on the Agency  and the Agency may submit a response to the Commission within 30  days of receiving the notice of appeal.

----

### Sample Form 7

SWORN DECLARATION

```

STATE OF __________________     )
                                )
                                )
COUNTY OF _________________     )

This instrument was subscribed to and sworn (or affirmed) before me this ________
day of ___________________, 200 ____, by ________________________________________.
                                                                  (Affiant's name) 

                                                ________________________________
                                                NOTARY PUBLIC IN AND FOR 
                                                THE STATE OF _____________
                                                Printed Name:
                                                My Commission Expires:
```

**[or]**

UNSWORN DECLARATION

```

I declare (or certify, verify or state) under penalty of perjury that the 
foregoing is true and correct to the best of my knowledge and belief.

EXECUTED _________________, 200____

                                                __________________________
                                                          (Signature)
```

----

*This page was last modified on December 12, 2008.*

Return to Home Page