*The U.S. Equal Employment Opportunity Commission*

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# U.S. Equal Employment Opportunity Commission Handbook for Administrative Judges  July 1, 2002

## CONTENTS

### PREFACE

**CHAPTERS:**

- Initial Processing
- Official Documents Issued by an Administrative Judge
- Settlement and Alternative Dispute Resolution
- Discovery
- Summary Judgment
- Sanctions
- Hearing Process
- Decisions
- Attorney's Fees and Compensatory Damages
- Class Complaints

**APPENDICES:**

- Order Directing Agency To Produce Complaint File
- Acknowledgment and Order
- Designation of Representative Form
- Consolidation Order
- Notice of Intent to Issue Decision Without A Hearing
- Order of Dismissal
- Order Entering Judgment
- Notice To The Parties
- Acknowledgment and Order for Class Certification
- Notice To The Agency

## PREFACE

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing statuteswhich prohibit discrimination in federal employment.  See Title VII of the Civil Rights Act of1964 (Title VII), as amended, 42 U.S.C. . 2000e et seq.; the Age Discrimination in EmploymentAct of 1967 (ADEA), as amended, 29 U.S.C. . 621 et seq.; Section 501 of the Rehabilitation Actof 1973 (Rehabilitation Act), as amended, 29 U.S.C. . 791 et seq.; the Equal Pay Act of 1963, 29U.S.C. . 206(d), which amended the Fair Labor Standards Act of 1938, 29 U.S.C. . 201 et seq. The Commission's regulations, set forth at 29 C.F.R. Part 1614, provide the basic framework forthe processing of federal sector complaints of discrimination.  Pursuant to these regulations,EEOC Administrative Judges are authorized to conduct hearings and issue decisions.  29 C.F.R. .1614.109.

The purpose of this handbook is to provide guidance to Administrative Judges concerning theprocessing of hearing requests and the conduct of hearings on individual and class complaints ofdiscrimination.  This handbook supplements the Commission's regulations and the EEOCManagement Directive 110, November 9, 1999 (EEO MD-110).

A major objective of the EEOC hearings process is to ensure that fair and impartial hearings areheld, and that well analyzed, legally and factually supported decisions are rendered on federalsector complaints of discrimination.  In support of this objective, this handbook is designed toperform two critical functions: to provide basic guidance in the preparation for and conduct offederal sector hearings; and to provide a framework for procedural uniformity in the hearing phaseof federal sector EEO complaint processing.  This handbook has neither the force nor the effect ofregulation, and adjudicatory error on appeal will not be established by failure to comply with aprovision of this handbook.

Questions and comments concerning this handbook should be submitted to:

Equal Employment Opportunity Commission                    Director, Office of Federal Operations                     1801 L Street, NW                    Washington, DC  20507

##  CHAPTER ONE

### Initial Processing

- Commencement of the Hearing Process    - Receipt and Docketing of the Hearing Request  Absent unusual circumstances, within fifteen days of receipt of complainant's hearingrequest, the EEOC district or field office will send a docketing order to the complainant and theagency, in which it will provide the parties with an EEOC Hearing case number and will order theagency to forward a copy of the complaint file within the earlier of fifteen days of its receipt of thecomplainant's request for a hearing or receipt of the docketing order.  EEO MD-110, 7-1.  SeeAppendix A.  If the district or field office receives a premature hearing request, it shall notify theparties that a hearing request can only be made after the completion of the agency's investigationor after at least 180 days following the filing of the complaint, whichever occurs first.  Where arequest for a hearing is untimely filed, the request may be dismissed, the parties notified, and thecomplaint returned to the agency for the issuance of a final agency decision.
  - Assignment of an Administrative Judge  Within fifteen days of receipt of complainant's hearing request, the case should beassigned to an Administrative Judge of record.  In the alternative, a supervisory AdministrativeJudge or a lead Administrative Judge may be assigned initially to faciliate case tracking and toensure that appropriate orders can be issued (such as a Show Cause Order).
  - Acknowledgment and Order  As soon as practicable after receipt of the complaint file from the agency, theAdministrative Judge should send an Acknowledgment and Order to: complainant; complainant'srepresentative, if known; and the agency's designated point of contact or the agency'srepresentative, if known.  The Acknowledgment and Order identifies the Administrative Judgepresiding over the complaint and outlines processing requirements.  The standardAcknowledgment and Order appears at Appendix B.  The standard Designation of RepresentativeForm appears at Appendix C and should be issued at the same time the Acknowledgment andOrder is issued.  Administrative Judges should not modify the standard Acknowledgment andOrder.  If the complaint file has not been received within the fifteen days set forth in the docketingorder, the Administrative Judge may issue an Order to Show Cause for the agency's non-compliance which includes notice of the type of sanction the Administrative Judge contemplatesimposing if the agency fails to proffer a sufficient explanation.  The Order to Show Cause shouldgrant the agency fifteen days from the date of receipt to respond, and the Administrative Judgeshould issue a ruling as promptly as possible upon the expiration of the response period.  In thealternative, for example, the Administrative Judge may convene a conference with the parties todetermine the status of the complaint file.
  - Case Assessment  The Administrative Judge should review the complaint file, including the investigativereport, for procedural defects, potential dismissal issues and appropriateness for alternativedispute resolution efforts.  See Chapter Three for further guidance regarding the referral of acomplaint for alternative dispute resolution.  An Administrative Judge may find it useful toschedule a conference to: (1) expedite disposition of the case; (2) establish early and continuingcontrol so that the case will not be protracted because of lack of management; (3) discouragewasteful pre-hearing activities; (4) improve the quality of the hearing through more thoroughpreparation; or (5) facilitate the settlement of the case.  An early conference that focuses on adiscovery plan jointly submitted by the parties may make it easier for the Administrative Judge toaddress motions that may be filed as discovery proceeds.  After such a conference, should theAdministrative Judge conclude that a different time frame for discovery is required to protect theinterests of a party, the Administrative Judge should issue a separate order clarifying that thediscovery period will be more or less than ninety days.  See Chapter Four for further guidanceregarding discovery.      - Transferring a Case  If an Administrative Judge identifies a case that is not properly before that particularEEOC district or field office, such as a case falling outside the geographic jurisdiction of theoffice, he/she shall promptly notify and transfer the case to the appropriate office and notify bothparties in writing of his/her action.
    - Incomplete Report of Investigation  If the Administrative Judge reviews the investigative report and finds that the agency didnot sufficiently comply with its obligation under 29 C.F.R. . 1614.108(b) to develop an impartialfactual record from which a reasonable fact finder could determine whether discriminationoccurred, or if no investigation has been conducted, the Administrative Judge retains jurisdictionover the complaint.  In order to develop the record, the Administrative Judge may order theagency to complete an investigation within a particular time period; allow the parties to developthe record themselves through discovery; issue orders for the production of documents andwitnesses; or consider appropriate sanctions.  The parties shall initially bear their own costs withregard to discovery, unless the Administrative Judge requires the agency to bear the costs for thecomplainant to obtain depositions or any other discovery because the agency has failed tocomplete its investigation as required by 29 C.F.R. 1614.108(e) or has failed to investigate theallegations adequately pursuant to EEO MD-110, Chapter Six.  **Ex Parte Communication**
EEOC Order Number 690.001 (January 30, 2002) sets forth the policy and proceduresregarding ex parte communication during rulemaking and decision-making on federal sectorcases. An ex parte communication is an oral or written communication between decision makingpersonnel of the Equal Employment Opportunity Commission and an interested party to theproceeding which does not provide for the participation of the other interested parties.

 Except when he/she is engaged in alternative dispute resolution, an Administrative Judgeis prohibited from engaging in ex parte communication concerning the merits of a case from thetime he/she learns that the complainant has requested a hearing until complainant has no furtherright of administrative appeal.  If, for example, one party telephones the Administrative Judge andattempts an ex parte communication, the Administrative Judge should terminate the conversation. If appropriate, the Administrative Judge may convene a conference with both parties to discussthe matter raised.  Another example of an ex parte communication might occur when theAdministrative Judge receives a document that has not been properly served upon the other party. In this circumstance, the Administrative Judge should return the correspondence or send a copy tothe other side.  The Administrative Judge may wish to memorialize the ex parte communication.

Administrative Judges are permitted to engage in communication that does not concernthe merits of the case but only references procedural or ministerial matters.  Permissiblecommunication includes, but is not limited to, inquiries regarding the status of the case, the dateof a hearing, or the method for transmitting evidence.  An Administrative Judge may also contacta party to request copies of documents that are illegible or miscopied.  **Rulings**
During ongoing case assessment, a number of matters may emerge that require theAdministrative Judge's intervention, including, inter alia, consolidation or amendment ofcomplaints, agency dismissed claims, spin-off allegations and disputes regarding official time.  Inall of these circumstances, the Administrative Judge's rulings must be clearly communicated to theparties in writing.  Discovery disputes, which often surface early in the adjudicative process, arethe subject of Chapter Four.
     - Consolidation of Complaints  Pursuant to 29 C.F.R. . 1614.606, Administrative Judges have the discretion toconsolidate complaints filed by the same individual or to consolidate related complaints filed bydifferent individuals.(1)      - Consolidation Order  The decision to consolidate complaints may be made at any time within a reasonableperiod prior to the hearing.  If the Administrative Judge decides to consolidate, he/she issues aConsolidation Order (see Appendix D), or otherwise places the consolidation ruling on therecord, notifying all parties and specifying the agency complaint numbers which have beenconsolidated.  Consolidated complaints are subsumed under one EEOC Hearing case numberregardless of how many agency complaint numbers the case includes.
    - Expedited Investigative Report  The Administrative Judge has the discretion to direct the agency to conduct an expeditedinvestigation of a complaint which the Administrative Judge has consolidated with the complaintat bar.  Expedited investigations may be ordered at the request of either party or sua sponte.  Inorder to determine the parameters of the expedited investigation and how long a period of timethe agency is granted to conduct it, an Administrative Judge may require a party requesting theexpedited investigation to clearly identify the matters proposed to be investigated; state why anexpedited investigation is the appropriate method of obtaining the information; identify andexplain the time required for the expedited investigation; and include an investigative plan, statingwith specificity the documents to be gathered and the witnesses to be interviewed.  Prior tosubmitting the request, the party proposing the expedited investigation should confer with theopposing party and indicate in the request whether it is opposed.  The non-moving party shouldrespond with specific reasons when it believes that the scope of the investigation should bewidened or narrowed. 
    - Complaints Pending Appeal  In the event the Administrative Judge becomes aware that a matter or matters are pendingon appeal which he/she believes should be consolidated with a complaint pending before theAdministrative Judge, then he/she should contact the Complaint Adjudication Division of theOffice of Federal Operations.  **Motions to Amend Complaints**
EEOC regulation 29 C.F.R. . 1614.106(d) authorizes Administrative Judges to rule onmotions to amend complaints.  In considering a motion to amend a complaint, the AdministrativeJudge should consider its impact on the existing claim, including when the amendment wasbrought to his/her attention and whether there will be any potential harm to the agency resultingfrom surprise.  An Administrative Judge should issue a written ruling on a motion to amend acomplaint within a reasonable period of time.  The ruling should also be referenced in theAdministrative Judge's decision on the merits of the complaint.
- Granting a Motion to Amend a Complaint  The Administrative Judge may grant a motion to amend a complaint if the amendmentconsists of a new claim that is like or related to the claim(s) raised in the pending complaint.  EEOMD-110, 5-9.  In deciding if a new claim is "like or related" to the original claim, a determinationmust be made as to whether the new claim adds to or clarifies the original claim, and/or couldhave reasonably been expected to grow out of the investigation of the original claim.  EEO MD-110, 5-10. 
- Denying a Motion to Amend a Complaint  If the Administrative Judge concludes that the new claim is not like or related to anyclaims pending in the complaint, he/she should deny the motion and order the agency tocommence processing the new claim as a separate EEO complaint.  The order should instruct theagency that the filing date of the motion to amend the complaint is the date to be used todetermine if initial EEO counselor contact was timely under 29 C.F.R. 1614.105(a). 
- Scope of the Hearing  When the Administrative Judge grants a motion to amend a complaint, the scope of theadjudication enlarges to encompass additional events or legal claims.  In these situations, theAdministrative Judge must decide the appropriate method for filling evidentiary voids.  TheAdministrative Judge may order the agency to expedite an investigation within a particular timeperiod, allow the parties to develop the record themselves through discovery, or issue orders forthe production of documents and witnesses.  In determining the appropriate method, theAdministrative Judge may consider the size and nature of the evidentiary gap and the parties'abilities to conduct discovery to develop the record. 
Dismissals
Administrative Judges may dismiss complaints pursuant to 29 C.F.R. . 1614.107 on theirown initiative, after notice to the parties, or upon an agency's motion to dismiss a complaint.(2)  29 C.F.R. . 1614.109(b).  A complaint may also be dismissed on the grounds that the matter hasbeen settled or withdrawn or because of the requirements for mixed case processing.  TheAdministrative Judge shall caption the order "Order of Dismissal."  See Appendix F.
Agency Partial Dismissals
The Administrative Judge shall review each complaint file to determine whether theagency has dismissed a portion of the complaint.  29 C.F.R. . 1614.107(b).  The AdministrativeJudge shall provide complainant with the opportunity to rebut, in writing, the agency's reason(s)for dismissing a portion of the complaint prior to the hearing.  If the complainant fails to opposein writing the dismissal of a claim, the opportunity to have the Administrative Judge determinewhether the dismissal was appropriate shall be deemed waived.  Unless it is necessary to have oralargument on the dismissal at the hearing, the Administrative Judge shall issue a ruling affirming orreversing the agency's decision dismissing a portion of the complaint as quickly as possible inorder to conserve administrative resources and the resources of the parties.  The AdministrativeJudge's determination as to whether a claim was properly dismissed by the agency shall bereduced to writing and incorporated into the decision on the merits of the complaint.
Upon issuing a ruling reversing an agency's dismissal of a portion of the complaint, theentire complaint or all of the portions not meeting the standards for dismissal will continue in thehearing process.  EEO MD-110, 5-24.  The Administrative Judge may order the agency toconduct an expedited investigation within a particular time period, allow the parties to develop therecord themselves through discovery, or issue orders for the production of documents andwitnesses. 
Dismissals by the Administrative Judge
The Administrative Judge shall review each complaint file to determine whether thecomplaint, or a portion of it, should be dismissed pursuant to 29 C.F.R. . 1614.107(a).  If theAdministrative Judge considers dismissal sua sponte, he/she must grant the parties an opportunityto respond to the proposed reason for dismissal.  While notice is generally written, there may becircumstances where oral notice is acceptable.  If the agency files a motion for dismissal, theAdministrative Judge must grant complainant an opportunity to respond.  If an AdministrativeJudge decides to dismiss a portion of a complaint, the Administrative Judge must issue a ruling inwriting and incorporate his/her determination into the decision on the merits of the complaint.

- Spin-Off Complaints  "Spin off" complaints are complaints that allege dissatisfaction with the processing of apreviously filed complaint and may be dismissed by the agency or the Administrative Judgepursuant to 29 C.F.R. . 1614.107(a)(8).  In contrast, if the Administrative Judge is presented withan allegation of improper processing involving the complaint currently before him/her, theAdministrative Judge should determine whether complainant proved that the allegation has merit,and if so, whether the defect had a material effect on the processing of the complaint.(3)  If so, theAdministrative Judge may impose sanctions on the agency.  29 C.F.R. . 1614.109(f)(3). Conversely, if the Administrative Judge finds that the agency's actions were inconsistent with itsobligations under the 29 C.F.R. Part 1614 regulations but had no material effect on the processingof the complaint, the Administrative Judge, in the exercise of his/her discretion, may refer thematter to the Complaint Adjudication Division of the Office of Federal Operations.  TheAdministrative Judge should document his/her determinations and actions in the hearing record. 
- Official Time  A complaint alleging the denial of official time is not a "spin off" complaint.  If anAdministrative Judge receives a complaint involving official time, he/she should require thecomplainant to identify with specificity the amount of time that was requested and how the timewas to be used.  The Administrative Judge should provide the agency an opportunity to respond. An initial oral ruling may be made, but that ruling must be memorialized in the record.  Theremedy for the improper denial of official time is to restore such personal leave as complainantmay have used.  EEO MD-110, 5-27.  For further guidance concerning official time, see EEOMD-110, 6-15. 
CHAPTER TWO
Official Documents Issued by an Administrative Judge
The titles of official documents issued by Administrative Judges need to be easilyrecognizable by parties who appear before the Commission.  A document issued by anAdministrative Judge must contain an appropriate caption of the case, should clearly identify thepurpose of the document in its title, and should be signed by the Administrative Judge.
As stated in the Acknowledgment and Order, parties and representatives should beadvised that motions must include a certification that he/she has made a good faith effort toresolve the matter with the non-moving party and, where appropriate, must indicate whether thenon-moving party opposes the motion.  In addition, the Administrative Judge may direct theparties to submit a draft order for the Administrative Judge if the motion is approved.
Because these are effective case management tools, parties and representatives should bereminded of these requirements if they are not heeded.  After appropriate warning, futuredefective motions by a party, whether in the same or in a subsequent case, may be denied.  Inappropriate circumstances, the party should be provided an opportunity to cure the defect if itwould not necessarily delay the proceeding.  The Administrative Judge has the discretion to tollthe deadlines for submission of motions in such circumstances.
Non-dispositive Rulings
The title of a non-dispositive ruling should appear in capital letters and identify the rulingbeing issued.  When issuing instructions that require a party to take an action to comply, the titleof the ruling should contain the word "Order."  When memorializing conversations or providinginformation that does not require a party to take action, the title of the ruling should containwords like "Memorandum" or "Notice."  Where the ruling both provides information andinstructs one or both parties to take an action to comply, the title should contain words such as"Notice And Order."
The title should concisely state the purpose of the ruling in a way that differentiates it fromother rulings and, when responding to a motion or request from a party, references the party'ssubmission.  Thus, the Administrative Judge should avoid the use of more generic titles such as"ORDER," "MEMORANDUM," or "MEMORANDUM AND ORDER" that may be usedrepeatedly within the same case.  Instead, a more descriptive title should be used.  For example,an order might be titled: "ORDER DENYING AGENCY REQUEST FOR AN EXTENSION OFTIME TO COMPLETE DISCOVERY"; "ORDER GRANTING COMPLAINANT'S MOTIONTO COMPEL"; "ORDER TO SHOW CAUSE"; or "PROTECTIVE ORDER."  A memorandummight be titled: "MEMORANDUM OF PRE-HEARING CONFERENCE"; "MEMORANDUMREGARDING DISCOVERY"; "SECOND PRE-HEARING MEMORANDUM AND ORDER";or "MEMORANDUM OF STATUS CONFERENCE AND ORDER TO SUBMIT PRE-HEARING COMMENTS."
All rulings must clearly state what actions are required by the parties and the date bywhich such actions must be completed.  In setting deadlines, the Administrative Judge shouldavoid ambiguous language such as "immediately" or "as soon as practical."  Rather, theAdministrative Judge should use specific dates or easily calculated deadlines such as "within tendays of receipt of the discovery request."  An Administrative Judge should use the followinglanguage in an Order setting a due date for a responsive filing:
For timeliness purposes, it shall be presumed that the parties received thisORDER within five (5) calendar days after the date it was sent via first-class mail.
Dispositive Rulings
A dispositive ruling on any matter that may be appealed to the Office of FederalOperations must be in one of the following forms: (1) a decision on the merits titled"DECISION"; or (2) an order dismissing the complaint in its entirety titled "ORDER OFDISMISSAL."  A dispositive ruling on summary judgment on motion of a party or sua sponteshould be titled "DECISION" and should indicate in the procedural history that the decision isbeing issued as a result of a summary judgment determination.  A grant of partial summaryjudgment should be in the form of an "ORDER GRANTING PARTIAL SUMMARYJUDGMENT" or "ORDER GRANTING IN PART AND DENYING IN PART THE[PARTY'S] MOTION FOR SUMMARY JUDGMENT."
Decision on the Merits
A decision on the merits may not necessarily close the proceeding before theAdministrative Judge or trigger a right to appeal to the Commission.  For example, a decisionfavorable to a complainant may be followed by a hearing on the issue of damages or may requiresubmissions regarding attorney's fees and costs.
So that the parties understand when a matter is subject to agency final action and appeal,the Administrative Judge shall issue an "ORDER ENTERING JUDGMENT FOR [PARTY]" atthe conclusion of the hearing process.  See Appendix G.  Thus, it may be issued contemporaneouswith a decision favorable to the agency or with a decision favorable to the complainant wherethere is no further need to address either the subject of damages or attorney's fees.  Otherwise, itwill be issued at the appropriate time when the Administrative Judge takes an action that removeshis/her jurisdiction over the case.  The Order Entering Judgment must be accompanied by aNotice To The Parties.  See Appendix H.
- Order of Dismissal  An Order of Dismissal must clearly identify the reasons the complaint is being dismissedand must be accompanied by a Notice To The Parties.  See Appendices F and H.  An Order of Dismissal is appropriate where the Administrative Judge dismisses acomplaint pursuant to: (1) 29 C.F.R. . 1614.109(b); (2) a sanction under 29 C.F.R. .1614.109(f)(3); (3) a voluntary withdrawal of the complaint; (4) a settlement of the complaint; (5)requirements for mixed case processing;(4) or (6) any other determination by the AdministrativeJudge that further consideration of the complaint is not appropriate.

- Commission Precedent  Administrative Judges must follow Commission policy and precedent in adjudicating theircases.  When there is a conflict between the Commission's position and that of the Circuit Courtin the jurisdiction where the Administrative Judge sits, an Administrative Judge must followCommission policy, but may acknowledge that the Circuit Court has reached a differentconclusion.
CHAPTER THREE
Settlement and Alternative Dispute Resolution
General
The Commission encourages  parties to seek informal resolution of their complaints. These informal methods may include:
settlement conferences or mediation conducted by an Administrative Judge or other    District Office staff;
voluntary alternative dispute resolution programs as agreed to by the parties; and
mediation programs conducted by volunteer mediators.

Recognizing the success of mandatory settlement processes, the Administrative Judge mayorder the parties to meet for the purpose of exploring settlement in good faith through mediationor other alternative dispute resolution methods.  Informal resolution methods involve time andresources, and the parties must attend such efforts in good faith with the requisite authorization toresolve complaints.  The Administrative Judge may not order the parties to settle.  TheAdministrative Judge has discretion to terminate informal resolution processes (e.g., upon noticefrom a party of a hardship, earlier unsuccessful attempts at resolution, or other reasons as deemedappropriate by the Administrative Judge).  When an Administrative Judge terminates the informalresolution process, the complaint(s) shall be returned to the formal hearing process, except undercircumstances where sanctions (e.g., due to contumacious conduct during a settlementconference) lead the Administrative Judge to consider other alternatives.  Cases that are referredfor informal resolution attempts may be held in abeyance in the case tracking system if it isanticipated that such attempts will take at least thirty days.  The Administrative Judge shouldnotify the Supervisory Administrative Judge or appropriate Commission staff if the case is to beheld in abeyance, for appropriate coding in the case tracking system.
Administrative Judges have authority to regulate the conduct of the parties at any stage ofthe hearings process, including settlement.  The Administrative Judge has discretion to orderappropriate sanctions consistent with the guidance at 29 C.F.R. . 1614.109(f)(3) and in EEOMD-110, Chapters 6 and 7.
Settlement Conferences
Settlement conferences may be conducted by an Administrative Judge who is not assignedas the Administrative Judge of record (the "Settlement Judge") or by the "Administrative Judge ofrecord" in the case.  The agency must designate an individual with settlement authority to attendsettlement conferences or be immediately accessible to the agency representative during suchconferences.  EEO MD-110, 1-2.
Settlement Conference Conducted by a "Settlement Judge"
The "Administrative Judge of record" may require the parties to participate in a settlementconference to be conducted by a different Administrative Judge (the "Settlement Judge").  TheSettlement Judge has discretion to determine the location of the settlement conference.  TheSettlement Judge may order the parties to appear at a specific location.  Alternatively, theSettlement Judge may permit participation by telephone (e.g., when the parties or the SettlementJudge reside in different geographic locations).
During a settlement conference, the Settlement Judge may provide the parties withsubstantive and legal information about what the disposition of the case might be if it were to goto an administrative hearing or to court.  He/she may provide the parties with possible settlementranges for their consideration.  EEO MD-110, 3-20.  The Settlement Judge may hold joint orindividual discussions with the parties in an effort to settle the case.  Generally, the SettlementJudge must not disclose anything said or done during settlement conferences to the AdministrativeJudge of record.  Exceptions include a recommendation for sanctions, a threat of imminentphysical harm, or incidents of actual physical violence that occur during the settlement conference.
Settlement Conference Conducted by Administrative Judge of Record
Since the Administrative Judge of record will adjudicate the complaint if the parties do notsettle it, unlike an appointed Settlement Judge, the Administrative Judge of record can onlyengage in ex parte communications regarding settlement with the express consent of the parties. Consent of a party to such communication may be withdrawn at any time.  An AdministrativeJudge of record must be careful to encourage settlement without suggesting that he/she has madedeterminations which should only be made after evaluating all of the evidence in the case.  It ispermissible for the Administrative Judge to explain to the parties their respective burdens, theevidence usually required to prevail on cases of the type brought by the complainant, and thedefenses established by law to avoid agency liability.  However, the Administrative Judge shouldavoid discussions about the specific facts of the instant case and should instead reference genericfact patterns.
Settlement Agreement
If the parties reach an agreement, the agreement must be reduced to writing.  In manycases, the Administrative Judge may offer to assist the parties to help them clearly define theterms of the agreement and legal requirements, such as the Older Workers' Benefits ProtectionAct (OWBPA).  The agreement should specifically identify the complaints which it purports toresolve.  In the event that an agreement is read into the record during a hearing, theAdministrative Judge shall ascertain on the record when the parties intend to be bound by theagreement (e.g., immediately or only after it is reduced to a writing executed by both parties). The Administrative Judge is not a party to the agreement and therefore must not sign theagreement.
Breach of Settlement Agreement
The Administrative Judge should advise the complainant of his/her rights under 29 C.F.R.1614.504 in the event the complainant later concludes that the agency has failed to comply withthe terms of the settlement agreement.

- Referral to Alternative Dispute Resolution Programs   Both agencies and complainants realize many advantages from participating in AlternativeDispute Resolution (ADR) procedures.  ADR provides an opportunity for informal resolution ofdisputes in a mutually satisfactory fashion and affords both parties options that are not available inan adversarial proceeding.  It also costs less than traditional adversarial proceedings.  The Administrative Judge may have an option to refer a complaint to one of many possibleADR programs.  These programs range from the use of shared neutrals, mediators, Postal ServiceREDRESS II mediators, other agency ADR programs, and other EEOC staff.  As noted above,these cases may be held in abeyance in the case tracking system when referred to one of theseprograms if it is anticipated that the ADR efforts will last at least thirty days.  The AdministrativeJudge should direct the parties to report the results of the ADR effort to him/her.  If ADR wassuccessful, a copy of the settlement agreement should be provided to the Administrative Judge. In the event that ADR is unsuccessful, no additional information should be provided, and theAdministrative Judge should continue processing the case from the point prior to referral to ADR.  The Administrative Judge may find that the core principle of confidentiality in ADR iscompromised by a party's attempt to use statements made in ADR during the evidentiaryproceedings.  In such a situation, the Administrative Judge should advise the parties thatstatements made during the ADR session are confidential and cannot be used as evidence or as abasis to obtain discovery in that area.  If a party raises systemic problems with an agency ADR program with the AdministrativeJudge, then the Administrative Judge may advise the parties to contact the Director, SpecialServices Staff, in the Office of Federal Operations.
CHAPTER FOUR
Discovery
Generally
The authority to conduct pre-hearing discovery is set forth in 29 C.F.R. . 1614.109(b). Chapter 7 of EEO MD-110 provides guidance on the procedures and methods regarding theconduct of discovery in the federal sector complaint process.  Neither the Commission'sregulations nor EEO MD-110 strictly follows the Federal Rules of Civil Procedure.(5)  However,when a discovery question is not answered by the Commission's regulations, guidance, or federalsector decisions, the Administrative Judge may use the Federal Rules as a guide in determiningthe proper course of action.  The Administrative Judge may decide, sua sponte or on motion of aparty, to bifurcate the discovery process, restricting initial discovery to liability and thenauthorizing additional discovery regarding remedies only upon a finding of discrimination.
Discovery permits the parties to obtain and develop evidence regarding any matterrelevant to the subject matter of the pending action, whether it relates to the claims or defenses ofthe party seeking discovery or the claims or defenses of any other party.  The Acknowledgmentand Order grants the parties the authority to commence discovery.  Discovery should proceedwith minimal intervention by the Administrative Judge.  EEO MD-110, 7-16.  While discovery isgenerally permitted, in appropriate circumstances, the Administrative Judge has the discretion tolimit or preclude the parties from engaging in discovery. 
Methods of Discovery
Written Interrogatories
Interrogatories are written questions directed to a party that require written answers byoath or affirmation.  They are generally used to obtain basic information in advance of, or insteadof, depositions.  A party, for example, may elect to propound interrogatories to the opposingparty, rather than depose a witness with confined knowledge of the relevant events.  Withoutprior authorization from the Administrative Judge, a party may propound no more than one set ofinterrogatories, and this set shall contain no more than thirty interrogatories, including sub-parts. EEO MD-110, 7-17. In considering a request for additional sets of interrogatories, theAdministrative Judge shall consider the number and complexity of the claims in dispute, especiallyin a case of amended or consolidated complaints.
Requests for Production of Documents
A party may request documents within the possession or control of the opposing party. Under the Federal Rules, the party to whom the document request is made is required to produceand permit the requesting party, or someone acting on their behalf, to inspect and copy anydesignated documents (e.g., writings, graphs, charts, photographs).  See Fed. R. Civ. P. 34.  As apractical matter, parties typically provide copies of the requested documents in lieu of inspection.
Absent permission from the Administrative Judge, parties are confined to one set of thirtydocument requests, including sub-parts.  EEO MD-110, 7-18.  Document requests must bespecific and discrete.  Combining several groups or classes of documents into a single request inan effort to exceed the maximum number of requests should not be permitted.  However, multipledocuments may need to be produced in response to a single request. 
Depositions
Oral depositions consist of questions under oath to a witness with knowledge of mattersrelevant to the dispute.  Parties are entitled to conduct a reasonable number of depositions.  Whatis reasonable will depend on the extent of the report of investigation and the scope and complexityof the complaint.  The Administrative Judge may issue orders as appropriate to control thenumber and length of depositions in response to a discovery dispute.
Attendance at Depositions
Unless otherwise ordered by the Administrative Judge, the party noticing the depositionpays for the deposition.  EEO MD-110, 7-17.  Deponents are required to appear for properlynoticed depositions.  Agencies are required to make current federal employees available fordepositions and to grant the deponent official time.  EEO MD-110, 7-18.  Failure to appear mayresult in the non-appearing party bearing the expense for the missed session, or more severesanctions.  EEO MD-110, 7-17.  However, the attendance of witnesses who are not currentfederal employees is voluntary and cannot be compelled.
A notice of deposition must specify the date, time, and place of the deposition. Depositions may be taken by any method upon which the parties agree, provided the deposition isrecorded by a court reporter.  The opportunity for cross examination must be provided.  In somecircumstances where the deponent is unavailable for the hearing, the deposition transcript may beadmitted in lieu of live testimony. 
Objections During Depositions
During the course of a deposition, the parties may note appropriate objections on therecord, but, notwithstanding the objection, the deponent is required to respond unless theobjection is based on a privilege.  In those situations where the parties cannot resolve the disputethemselves, they may request the Administrative Judge to rule on the objection.  The parties maytelephone the Administrative Judge during a deposition to request a ruling on an objection orregarding a dispute over a procedural concern such as the conduct of counsel or the length of adeposition.  If the Administrative Judge is not available, another Administrative Judge may bedesignated to handle the matter. 
The Administrative Judge should attempt to resolve the dispute during the deposition byruling on the objection or, if possible, by helping the parties reach a compromise on the scope ofthe questioning.  The Administrative Judge should make the ruling "on the record" of thedeposition to ensure that the court reporter transcribes it.  If the dispute involves too complex aquestion to permit an immediate ruling, the Administrative Judge may instruct the parties to briefthe issue.  The Administrative Judge should notify the parties that if he/she overrules theobjection, he/she will provide an opportunity to exchange the information at issue, either byallowing the deposition to continue at a later date, interrogatory, or other suitable means.

- Requests for Admissions  A party may submit requests that the opposing party admit or deny, in writing, factualstatements.  A request for admission is a mechanism to narrow the controversy at the hearing byestablishing facts beforehand.  Any matter admitted is deemed conclusively established for thepurpose of the pending dispute.  Absent authorization by the Administrative Judge, requests foradmissions of fact shall be limited to thirty, including all discrete sub-parts.  EEO MD-110, 7-18.
- Stipulations  Stipulations may only address factual matters.  The parties may not stipulate toconclusions of law.  See McDonald v. Secretary of Health and Human Services, EEOC AppealNo. 01952343 (August 7, 1996), request for reconsideration denied, EEOC Request No.05960788 (February 5, 1998).  The Administrative Judge shall ensure that any stipulations aremade part of the hearing record.
- Medical Examinations  Although Administrative Judges have the authority to order medical examinations, theyshould only do so in very limited circumstances.  When a party, usually the agency, requests amedical examination (physical or psychological), the Administrative Judge should consider severalfactors: (1) whether the need for the evidence outweighs the invasive nature of the examination;(2) alternative methods of obtaining the information; (3) the independence of the medicalexamination; and (4) the availability of a medical professional skilled in the particular area.  Forexample, the Administrative Judge may require the requesting party to identify more than onephysician competent to conduct the exam and permit the responding party to select from the pool. Generally, the Administrative Judge should not permit counsel to be present during theexamination.  EEO MD-110, 7-11.
- Informal Discovery  The Administrative Judge should encourage the parties to cooperate and to participate ininformal methods of discovery because it provides the parties with an opportunity to narrow thescope of the hearing and reduce litigation costs.  EEO MD-110, 7-18.  When informationgathering and hearing preparation takes place outside the scope of formal discovery, agencies maynot restrict access to non-management employees who voluntarily cooperate with informaldiscovery.

- Time Frames for Discovery  The Acknowledgment and Order provides for discovery to be completed within ninetydays of receipt of the order.  The discovery period should remain ninety days except where, in aparticular case, the Administrative Judge determines that a different time frame for discovery isrequired to protect the interests of a party or when such a change would materially expedite thecompletion of the hearing process.  If a party requests an alternative schedule, the AdministrativeJudge should consider the complexity of the case, the relevant concerns of the parties, and the180- day time limit for issuing a decision.(6)  Unless otherwise ordered by the Administrative Judge, the exchange of requests forwritten discovery (e.g., interrogatories, requests for production of documents, and requests foradmissions) must be made within twenty days of the start of the authorized discovery period. EEO MD-110, 7-19.  Failure to initiate written discovery within the first twenty days may bedeemed a waiver of the right to pursue discovery.
- Ruling on Motions to Compel and Protective Orders    - Motions to Compel  Administrative Judges should rule on a motion to compel within twenty days of receipt ofthe other party's statement in opposition to the motion or the deadline for such opposition if noneis ultimately filed.  The Administrative Judge should deny the motion to compel when it does notinclude the following: (1) a copy of the request in dispute; (2) the response to the discoveryrequest, if any; and (3) the argument in support of the motion.  In addition, where the motion tocompel does not include certification that the moving party conferred with the opposing party ormade a good faith effort to do so to attempt to resolve the dispute, then the Administrative Judgehas the discretion to deny the motion without further consideration.  In denying a motion tocompel, the Administrative Judge should include a brief explanation for the basis of his/her ruling.  An Administrative Judge may deny a motion to compel if the discovery request isirrelevant, over-burdensome, repetitious, or if the information sought is privileged.  Thesedeterminations must be made on a case-by-case basis.  In making these determinations, theAdministrative Judge should consider Commission policy and precedent and established federalcase law. 
  - The Privacy Act  Most documents relevant to the adjudication of an EEO complaint are available duringdiscovery.  If an agency asserts an objection based upon the Privacy Act, the Administrative Judgemust determine whether the agency's reliance on the Privacy Act is appropriate.      - System of Records  As an initial matter, the agency is required to demonstrate that the requested documentsare in fact kept in a "system of records" subject to the Privacy Act.  5 U.S.C.. 552a(a)(5)(definition of "system of records").  Not all government records are maintained insystems of records subject to the Privacy Act.  Unless the agency can show that the requesteddocument is maintained in a Privacy Act system of records, the agency cannot invoke the PrivacyAct as a defense.  For example, a discovery request for relevant job applications cannot beresisted on Privacy Act grounds if job applications are filed by vacancy announcement number andthus not maintained by the agency in a Privacy Act system of records.  Many of the records sought in discovery during an EEOC administrative hearing are likelyto be contained in three government-wide systems of records which are subject to the PrivacyAct: (1) EEOC/GOVT-1, EEO in the Federal Government Complaint and Appeal Records, whichincludes EEO complaint files maintained by the agency where the complaint was filed; (2)OPM/GOVT-1, General Personnel Records, which includes general personnel records of federalemployees; and (3) OPM/GOVT-2, Employee Performance File System Records, which containsperformance review and rating records.
    - Routine Use Exceptions  If the agency establishes that the requested document is in fact maintained in a Privacy Actsystem of records, it must be determined whether it is nevertheless discoverable in the EEOcomplaint adjudication process under any of the "routine use exceptions" listed in the applicablesystem notice.  5 U.S.C. . 552a(b)(3).  Because of the routine use exceptions that apply to EEOcomplaint files and employee personnel records, information that is maintained by an agency inany of its EEO complaint files or in employees' official personnel folders cannot be withheld onthe basis of the Privacy Act.  Although routine use exceptions permit agencies to disclose records,they do not require such disclosure.  EEOC/GOVT-1, OPM/GOVT-1, and OPM/GOVT-2 Systems of Records each have tworoutine uses that permit disclosure of records during discovery in an EEO hearing.(7)  One of theseroutine uses permits disclosure of information during discovery that is relevant to the subjectmatter involved in a pending judicial or administrative proceeding.(8)  Another routine use in allthree systems of records permits disclosure of information to another federal agency, to a court,or a party in litigation before a court or in an administrative proceeding being conducted by afederal agency, when the government is a party to the judicial or administrative proceeding.(9)  As an example, during discovery on a complaint alleging sexual harassment by a co-worker, the agency cannot invoke the Privacy Act to resist discovery of the names, telephonenumbers, and places of employment of those who filed sexual harassment complaints involving thesame co-worker.  The routine use exceptions cited above permit such discovery, depending onwhether the requested information is retrievable by the agency from other EEO complaint files orfrom the co-worker's official personnel folder.  The agency may be able to successfully argue thatthe requested information is not retrievable because it is kept only in EEO complaint files whichare not maintained or catalogued by the names of the accused, but if the agency maintains a database for EEO investigative reports which can be searched by names, the Administrative Judgemust determine whether the information is non-repetitive, material evidence and not undulyburdensome to retrieve.  If the complainant seeks discovery regarding discipline issued to the co-worker, the agency cannot resist discovery under the Privacy Act if the disciplinary record ismaintained in the co-worker's official personnel folder.
    - 5 U.S.C. 552a(b)(1)  Finally, as a last resort, if a requested document is maintained in an agency's Privacy Actsystem of records but there is no routine use exception permitting its disclosure, theAdministrative Judge should determine whether the disclosure is nevertheless permitted under anyother statutory exception listed in 5 U.S.C. . 552a(b).  For example, 5 U.S.C. . 552a(b)(1)permits disclosure of records to persons within the same agency that maintains the record if theyhave a need for the record in the performance of their official duties.  The "need to know"exception thus allows EEO investigators to collect information from various records within anagency during an EEO investigation.  If an agency, in reliance on the Privacy Act, objects to thedisclosure of a record during discovery, the complainant cannot argue for the release of the recordbased on the "need to know" exception.  However, the Administrative Judge could order theagency to conduct a supplemental investigation.  The EEO investigator could then obtain a copyof the disputed record under the "need to know" exception and place it in the investigative file.  **Protective Orders**
During the course of discovery, one of the parties may move for a protective order.  Aprotective order may limit disclosure, dissemination, or reproduction of information obtainedthrough the discovery process.  The Administrative Judge may grant a protective order to shield aparty or person from annoyance, embarrassment, or undue burden or expense or provide analternative means for resolving a discovery dispute.  In addition, the Administrative Judge maygrant a protective order to protect proprietary, fiduciary, classified, or privileged information. The Administrative Judge may also sanction a party for violating a protective order.

The issuance of a protective order does not cure a Privacy Act problem.  If there is noroutine use or other exception in the statute that permits disclosure of a record to thecomplainant, an agency may continue to resist disclosure because the protective order will notnecessarily excuse the agency from a Privacy Act violation.  In appropriate circumstances, theAdministrative Judge may require the complainant to set forth with specificity in his/her motion tocompel, why he/she believes that the disclosure of the information sought would not violate thePrivacy Act.   CHAPTER FIVE  Summary Judgment    - Generally  Either party may file a motion for summary judgment, referred to in the regulations as adecision without a hearing.  29 C.F.R. . 1614.109(g).  An Administrative Judge may considersummary disposition sua sponte.  The Administrative Judge may grant a motion for summaryjudgment in its entirety, or where appropriate, may grant partial summary judgment which limitsthe issues in dispute.  29 C.F.R. 1614.109(g); EEO MD-110, 7-9.  A statement of undisputed material facts must appear in: (1) a party's motion for adecision without a hearing; (2) an Administrative Judge's notice of intent to a decision without ahearing; and (3) an Administrative Judge's decision issued without a hearing.  This will provideboth parties a full and fair opportunity to respond and will permit the Commission to have thebenefit of a complete record if the final agency action is appealed.
  - Procedure       - On Motion of a Party  Although the regulations provide that a motion for summary judgment may be filed fifteendays prior to the date of the hearing, the regulations also grant the Administrative Judge thediscretion to require an earlier filing period.  29 C.F.R. . 1614.109(g).  In setting deadlines forsummary judgment submissions, an Administrative Judge should ensure that the deadlines allowhim/her to issue a ruling on the motion sufficiently prior to the hearing.  This will ensure that theparties do not engage in extensive preparation for a hearing that may not take place.  In mostinstances, an Administrative Judge should: (1) require a party who believes that some or allmaterial facts are not in genuine dispute to file a motion in support of this contention with theAdministrative Judge fifteen days after the close of discovery; (2) grant the non-moving partyfifteen days to file a response; and (3) grant the moving party five days to file a reply.  In the eventthat a motion is filed shortly before a scheduled hearing, the Administrative Judge should evaluatethe impact of the motion on the hearing process and the non-moving party.  As appropriate, theAdministrative Judge may entertain oral argument on a motion at the hearing prior to receivingtestimony.  In the event that a motion is filed prior to the completion of discovery, the AdministrativeJudge should consider a response by the non-moving party that evidence being sought throughdiscovery is necessary to adequately respond to the motion for summary judgment.  Such aresponse must identify with specificity the nature of the information sought.  Where the responsedoes not adequately explain what information is being sought, the Administrative Judge mayrequest further explanation before ruling on the motion for summary judgment.  In circumstances where a motion for summary judgment is filed before the parties haveengaged in any discovery, or after the close of discovery, the Administrative Judge may providethe parties an opportunity for limited discovery or some other appropriate means of informationgathering specifically designed to respond to the motion.
    - On Administrative Judge's Sua Sponte Determination        - Contents of Notice  The Administrative Judge's notice to the parties regarding his/her intent to issue a decisionwithout a hearing must: (1) indicate in whose favor summary judgment is being proposed; (2)identify the applicable legal standards and burdens of proof with respect to each claim; (3) setforth the legal standards for issuance of a decision without a hearing; (4) identify the undisputedmaterial facts which appear to be dispositive of the case; and (5) direct the parties to cite tospecific evidence contained in the report of investigation which creates a factual dispute regardinga material issue and to include any relevant documentary evidence or witness statements,interrogatory answers, admissions, or other supporting materials from outside the report ofinvestigation, with an explanation of the relevance of all materials submitted.  The AdministrativeJudge need only identify those undisputed material facts which would be dispositive of the case. For example, in a retaliation case, the record may show that numerous facts are in dispute,including why a letter of warning was issued or why other comparative employees were notdisciplined.  However, where the record does not contain evidence of any prior protected activity,the Administrative Judge may identify only that fact as being material to the disposition of thecase.  A model notice is attached as Appendix E.
      - Response  Both parties have fifteen days from receipt of the Administrative Judge's sua sponte noticeto submit a response.  In addition, both parties should be granted five days from receipt of eachother's responses to submit a reply.  The Administrative Judge should consider a response by aparty that evidence being sought through discovery is necessary to adequately respond to the suasponte notice and may provide the parties an opportunity for limited discovery or some otherappropriate means of information gathering specifically designed to respond to the sua spontenotice. 
      - Failure to Respond/Untimely Response to Notice   A party's failure to respond to the Administrative Judge's notice of intent to issue asummary disposition is not grounds for a sanction.  Where a response is not timely filed, theAdministrative Judge should exercise discretion as to whether to consider the response, takinginto account, among other things, whether good cause has been shown for the delay.  **Oral Argument or Testimony on Summary Judgment Motion**
At his/her discretion, the Administrative Judge may provide notice requiring the parties toappear and present oral argument or testimony on a motion for summary judgment.  This may beparticularly useful where a motion for summary judgment has been filed but it is unclear whethercertain facts are in dispute, or where a pro se complainant or other party has filed an ambiguousresponse.  The Administrative Judge may direct the agency to provide a court reporter.  The oralargument may be in person or via telephone.
  **Form of Decision**- Contents  While there is no required format for a decision without a hearing, the AdministrativeJudge's decision should include: (1) a statement of the claims raised; (2) identification of theparties' submissions; (3) a statement of the undisputed material facts; (4) a statement of applicablesubstantive law; and (5) the Administrative Judge's legal conclusions and supporting rationalewith respect to each claim. The Administrative Judge's decision should reference the witnessstatements or other documents submitted by the parties, if relied upon in the decision.  Mattersfully addressed in the record or pleadings may be incorporated by reference.
- Partial Summary Judgment  Where the Administrative Judge grants partial summary judgment, he/she may issue adecision explaining his/her rationale, or may notify the parties that partial summary judgment isgranted and memorialize the reasons for granting partial summary judgment at the time of thedecision on the remaining issues.  A Notice To The Parties should not be issued with a partialsummary judgment decision because appeal rights do not attach until the Administrative Judgeissues the decision that completes the hearing process.
CHAPTER SIXSanctions- Generally  The Administrative Judge's authority to issue sanctions is set forth at 29 C.F.R.1614.109(f)(3).  Additional guidance can be found in EEO MD-110, 7-9 and Rules 11 and 37 ofthe Federal Rules of Civil Procedure.  In appropriate circumstances, an Administrative Judgemay sanction a party for its conduct.  Sanctions should be tailored to deter the party from similarconduct in the future and, if warranted, to equitably remedy any harm incurred by the opposingparty.  Sanctions should not be so severe that they result in inequity, nor should they be so lenientthat they fail to serve as a deterrent.  If a lesser sanction would suffice to deter the conduct and toequitably remedy the opposing party, it may constitute an abuse of discretion to impose a harshersanction.  See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). Administrative Judges must distinguish between conduct that does not warrant the imposition of asanction and conduct which does.  For example, a complainant's failure to submit a Designationof Representative Form or failure to respond to a notice of the Administrative Judge's intent toissue a decision without a hearing is not the type of conduct which an Administrative Judgeshould sanction.  Id.  However, a party's failure to obey an Administrative Judge's order toproduce a document during discovery or to expedite an investigation may be cause for a sanction.  An Administrative Judge's discretion to issue sanctions is premised on a party's failure toshow good cause for the conduct at issue.  There is no requirement to show that the other partywas "substantially prejudiced" or that the non-complying party exhibited bad faith, although sucha showing may be a factor in an Administrative Judge's determination of the appropriate sanction. See Cornell v. Department of Veterans Affairs, EEOC Appeal No. 01974476 (November 24,1998).  Administrative Judges should consider whether the conduct at issue constitutes an attackon the integrity of the EEO process.  In such a situation, a sufficiently severe sanction isappropriate.  For example, where an agency repeatedly fails to comply with an AdministrativeJudge's order to complete an expedited investigation, the Administrative Judge could issue adecision in favor of the complainant as a sanction.  See DaCosta v. Department of Education,EEOC Appeal  No. 01995992 (February 25, 2000).
- Rulings on Sanctions    - Order to Show Cause  An Order to Show Cause directs a party to explain why a potential sanction should not beimposed.  In the event that a party did not receive sufficient notice that its conduct could besanctioned and what potential sanctions may be imposed, and did not have an opportunity toexplain its conduct, an Administrative Judge must issue an Order to Show Cause, addressingthese three factors.  In lieu of a formal Order to Show Cause, notice and opportunity to respondcould occur at the hearing or during a telephone conference.  An Order to Show Cause is notnecessary where a party has filed a motion for specific sanctions and the non-moving party hashad an opportunity to respond.
  - Imposing Sanctions - Sanction Order  If sanctions are issued against the offending party, the Sanction Order must contain thefollowing information: (1) a background statement of facts giving rise to the Sanction Order; (2) abrief narrative of the parties' responses to the motion for sanctions or to the Order to ShowCause; and (3) the reason for and type of sanction imposed by the Administrative Judge.(10)  Sincethere are no interlocutory appeals, the implementation of monetary sanctions imposed by theAdministrative Judge during the hearing process must be incorporated as part of theAdministrative Judge's final decision for compliance and appeal purposes.  Factors an Administrative Judge should consider in making a sanction determinationinclude: (1) the degree of culpability; (2) prejudice the non-compliance had on the opposing party;(3) the significance of delaying justice; (4) the number of times the party has engaged in suchconduct; and (5) the effect on the integrity of the process as a whole.  The Administrative Judgemust clearly indicate, in the record, the reasons in support of his/her decision to impose sanctions. See, e.g., Anderson v. Boston School Committee, 105 F.3d 762 (1st Cir. 1997).   CHAPTER SEVEN  Hearing Process    - Pre-Hearing Considerations  In determining how to proceed, the Administrative Judge should consider whether: ADRor another formal settlement procedure is possible; summary judgment is appropriate;consolidation or amendment of complaint(s) is appropriate; and any discovery matters areoutstanding.      - Pre-Hearing Conference  A pre-hearing conference is the opportunity for the Administrative Judge to discuss andrule upon any outstanding matters that must be resolved prior to hearing.  These matters mayinclude the following if they have not already been addressed: advising the parties of hearingprocedures; explaining applicable burdens of proof; refining issues on which the hearing will beheld; approving witnesses; determining whether complainant seeks compensatory damages;determining whether the hearing will be bifurcated between liability and relief; ruling onoutstanding motions; ruling on the admissibility of exhibits; obtaining stipulations of fact andstipulations as to the authenticity of documents; exploring settlement options, including ADR;arranging for a court reporter; arranging for telephone or video testimony; and arranging for anyspecial accommodations.  The Administrative Judge may consider having the parties, jointly orindividually, submit the order of witnesses, showing the expected length of direct and crossexamination for each witness.  A pre-hearing conference may be held in person or by telephone call with notice to theparties.  The Administrative Judge shall issue, sufficiently in advance of the hearing and in writing,all necessary rulings and explanations regarding hearing procedures. 
    - Pre-Hearing Conference Memorandum/Order  Following the pre-hearing conference, the Administrative Judge should either direct theparties to memorialize the discussion and any rulings made at the pre-hearing conference or issueto the parties his/her own written memorandum or order memorializing the discussion and anyrulings.  Where appropriate, the matters raised during the pre-hearing conference may be placedon the record at the hearing.  **Conduct of the Hearing**- Scheduling Order  At least thirty days prior to the hearing, the Administrative Judge shall issue a SchedulingOrder which advises the parties regarding: the date, time, and location of the hearing; and anynecessary instructions to the agency for securing the hearing facility, court reporter, and specialaccommodations.  In addition, the Scheduling Order may also include information regarding the requirementsfor a hearing room; the sequestering of witnesses; and the agency's responsibilities with respect toproducing approved witnesses who are current federal employees, even if employed by anotheragency.
- Hearing Location  The Administrative Judge shall determine the location where the hearing is to be held. The Administrative Judge should schedule the hearing to be held at a Commission office, anappropriate agency facility, or other appropriate location.  If the Administrative Judge determinesthat a hearing should be held at an agency facility, the Administrative Judge should direct theagency to identify and secure a suitable hearing room.  In determining the location for the hearing,the Administrative Judge should consider those factors identified in EEO MD-110, 7-4.
- Special Accommodations  A party, witness or representative appearing before the Commission may be entitled to areasonable accommodation for a disability.  The Administrative Judge may order the agency toprovide the accommodation.  Administrative Judges may also order agencies to provide foreignlanguage interpreters.
- Requests for Postponement of the Hearing  The Administrative Judge should apply strict criteria in considering whether to grantrequests for postponement of the hearing so as to avoid undue delay and interference with casemanagement.  The Administrative Judge may choose not to grant such requests absentextenuating circumstances (e.g., hospitalization of a representative or death in a party's family). In the event that a witness is unavailable, the Administrative Judge may wish to proceed with thehearing and arrange to take the testimony of the witness at a later date.
Other Matters
Recusal
Conflicts of Interest
The Administrative Judge should recuse himself/herself from both real and perceivedconflicts of interest.  The Administrative Judge generally should not participate in a hearing wherea party is a member of his/her household, a close relative, the employer of his/her spouse, parentor dependent child, someone with whom he/she has a business relationship, or a former employer(within the past year).  If, however, the Administrative Judge determines that no reasonableperson knowing all the facts would question his/her impartiality, the Administrative Judge mayproceed with the hearing after disclosing the relationship and explaining the reasons why he/shedoes not believe there is a conflict.
Bias
The Administrative Judge should not participate in any conduct during the hearing thatpresents the appearance of or demonstrates actual bias in favor of or against one of the parties. For example, it is improper for the Administrative Judge to eat lunch with a representative of oneparty during the course of the hearing.  If a party or a witness accuses the Administrative Judge ofbias during the course of the hearing, the Administrative Judge should document the allegationsand the response on the record. 

- Pro Se Complainants  The Administrative Judge may instruct pro se complainants regarding the correct methodof questioning witnesses.  The Administrative Judge may also facilitate the introduction ofexhibits by asking questions about the relevance of proposed exhibits.  The Administrative Judgemay explain the substantive legal standards and burdens of proof that apply to the case. Generally, the Administrative Judge should not reject, with prejudice, filings by a pro secomplainant for failing to comply with technical requirements of form, unless the violations arerepeated after a clear warning and instructions as to proper form.
- Persons Authorized to be Present  At the hearing, the Administrative Judge should be sure that all necessary parties arepresent and, because hearings are closed to the public, that unauthorized persons are excluded. Generally, the following persons are authorized to be present at hearings:       the Administrative Judge;     the official court reporter;     the complainant;     the complainant's representative;     the agency's representative;     approved assistants or technical advisers;     interpreters and translators; and     approved witness when testifying (accompanied by his/her attorney while testifying).  In addition, the Administrative Judge, with consent of the parties, may permit otherpersons to attend under appropriate circumstances (e.g., a relative of the complainant, oremployees or officials with the agency's EEO office where attendance is related to job training).  The agency representative and the complainant may have technical advisers at the hearingif approved by the Administrative Judge.  A technical adviser is not a representative and may notaddress or question witnesses or make statements for the record unless called upon by theAdministrative Judge to do so.  The Administrative Judge should determine whether the technicaladviser possesses factual knowledge relevant to the case and could be a witness for either party. The Administrative Judge may require that the technical adviser testify before any other witness toensure that the testimony is not unduly influenced by other witnesses and/or exhibits. Alternatively, the Administrative Judge may require that the party use a different technical adviser.
- Preliminary and Off-the-Record Inquiries    - Order of Testimony and Witnesses  Usually the complainant will present his/her case first.  The Administrative Judge may askthe representatives to estimate the length of testimony and may set time limits on testimony ifappropriate.  Witness order may also be affected by availability, the need to take testimony viatelephone or video conference, and differences in time zones between the hearing site and locationof witnesses.  The Administrative Judge should ensure that, other than the complainant, a witnessis present only when testifying and should be instructed not to discuss their testimony with otherwitnesses.  Where a party has more than one representative at the hearing, the AdministrativeJudge should also instruct the representatives that only one of them may examine and makeobjections during the testimony of each witness.  Where there is more than one complainantrepresented by different representatives, the Administrative Judge may require the parties todetermine the order and scope of examination of witnesses.  When a non-attorney representativeis also an approved witness, he/she should testify first.  Alternatively, the Administrative Judgemay require that the party use a different representative.
  - Off-the-Record Discussions  The Administrative Judge should inform the parties and the court reporter that only theAdministrative Judge may instruct the court reporter to go on and off the record.  TheAdministrative Judge should go off the record when necessary to prevent the record frombecoming cluttered with unnecessary dialogue.  The Administrative Judge may go off the recordto discuss scheduling, clarify issues, explain regulations or procedures or initially caution theparties or their representatives with regard to their conduct.  Such discussions should beimmediately summarized once back on the record.  **Opening the Hearing**
The presentation of evidence at the hearing generally follows the same sequence as a trialin a civil action.  The Administrative Judge convenes the hearing and makes an introductorystatement.
- Introductory Statements  The Administrative Judge's introductory statement should identify the following:                 the parties and complaint number(s) (EEOC and agency numbers);               who is present;               the issue(s) in the complaint(s);               any procedural or substantive discussions and rulings made prior to going                    on the record; and               any stipulations agreed to by the parties.  The Administrative Judge may permit the parties to make opening statements.  Openingstatements are not evidence.  Generally, the complainant will have the first opportunity to makean opening statement.  The agency representative's opening statement may immediately follow ormay be reserved until the complainant has presented his or her entire case.  The Administrative Judge must protect the record from irrelevant or unduly repetitiousevidence and ensure that the hearing record is clear.  This may mean excluding or haltingrepetitive or irrelevant testimony and clarifying questions or responses offered by the parties. 
- Examination of Witnesses  Prior to swearing in the witness, the Administrative Judge may instruct the witness as tothe process of testifying and answer any questions the witness may have.  The AdministrativeJudge should instruct the witness not to discuss his/her testimony (or any other matters discussedin the presence of the witness during the hearing) with anyone else.    All witness testimony is given under oath or affirmation and penalty of perjury.  Either theAdministrative Judge or the court reporter must administer the oath to each witness and identifythe witness before the witness begins testifying.  A commonly used oath is:  Do you swear or affirm under penalty of perjury that the testimony you are about to give     is the truth, the whole truth and nothing but the truth?  The party calling the witness examines the witness first.  When direct examination isconcluded, the opposing party may cross-examine.  Generally, cross-examination should notexceed the scope of the direct examination.  Where both parties requested the same witness, theAdministrative Judge shall determine whether the witness shall be called twice or whether thescope of cross-examination may exceed the scope of direct examination.  The AdministrativeJudge may independently examine the witness and permit follow-up questions by the parties.
- Testimony    - Generally  The testimony of witnesses should be relevant and material to the case.  The testimonyshould be specific and reflect personal knowledge or recollection.  Notes should be used only torefresh the memory of the witness.  Hearsay testimony may be allowed if it is relevant, material,and not unduly repetitious, but the Administrative Judge may accord it diminished evidentiaryweight since it is hearsay.  Leading questions should be disallowed on direct examination unlessthe witness is a hostile witness or adverse to the party conducting the direct examination (e.g., ifthe complainant has called the responsible management official, he/she can ask leading questions). The Administrative Judge should inform the parties what a leading question is and, if necessary,assist the parties to pose questions in the proper form.  There may be circumstances when witnesses are not available to appear at the hearing.  Inthose circumstances, the Administrative Judge may consider alternative methods of obtaining thetestimony.  These alternatives may include testimony by telephone or video conference or bywritten submissions.
  - Expert Testimony  If the parties seek to offer testimony or documents by experts, the experts must bequalified.  This requires the Administrative Judge to determine whether the expert possesses theknowledge, skill, experience, training or education that permits the expert to offer opiniontestimony.  In the alternative, the Administrative Judge may ask the parties whether they canstipulate that the experts are qualified.  This generally requires the party seeking to introduceexpert testimony to provide a resume or curriculum vitae of the expert that adequately describesthe expert's knowledge, skill, experience, training or education in the subject matter about whichhe/she is being called to testify.  The expert's opinion as to facts or law may not be substituted forthe Administrative Judge's ultimate conclusion of facts and law.  Documents prepared by expertsmust be authenticated and treated like other documentary evidence.    Expert witnesses who are not employed by the federal government cannot be compelled toappear.  If an expert does not testify in person at the hearing, the Administrative Judge shouldbalance the relevance and probative value of documentary evidence prepared by an expert againsta party's inability to cross examine the expert.  In most cases, this determination will ultimately goto the weight the Administrative Judge should give the expert's evidence, rather than to itsadmissibility.  **Objections**
Objections may be made based on relevance, prejudice, or other grounds.  TheAdministrative Judge may consult the Federal Rules of Evidence in ruling on objections. Generally, the Administrative Judge should sustain objections where the evidence is irrelevant,cumulative or unreliable.  Prior to ruling on an objection, the Administrative Judge should permitthe non-objecting party to respond to the objection.  The Administrative Judge may take a recessor take the arguments under advisement and continue with the hearing.  In ruling on objections,the Administrative Judge should remember that admission of evidence does not speak to theweight to be given the evidence once it is admitted.
  **Exhibits**
The parties are permitted to introduce documents as exhibits that are relevant and materialto their case.  The Administrative Judge must assure that the record accurately reflects when anexhibit is offered, the marking of the exhibit, any objections to its admission, and theAdministrative Judge's ruling on the objections.  The report of investigation is already part of therecord and need not be introduced as an exhibit.  The Administrative Judge should instruct theparties to make specific references to the report of investigation as necessary.

Exhibits should be marked with unique identifiers.  The Administrative Judge may requirethe parties to exchange exhibits and submit a list of exhibits to the Administrative Judge prior tothe hearing.  Each proposed exhibit should be identified by number.  Complainant's exhibitsshould be marked as hearing exhibit  C-1, C-2, etc.  The agency's exhibits should be marked ashearing exhibit A-1, A-2, etc.  The Administrative Judge may also order that certain documents beentered into the record as the Administrative Judge's exhibits.  Such exhibits should be marked asAJ-1, AJ-2, etc.

The Administrative Judge should instruct the parties as to the number of copies of exhibitsrequired for the hearing.  The Administrative Judge should instruct the court reporter to assembleand keep all hearings exhibits offered at the hearing and provide them with the bound transcript ofthe hearing.
- Offering and Admitting Exhibits  The party offering the exhibit must formally offer the exhibit into evidence.  If not alreadymarked, the Administrative Judge or court reporter will mark the exhibit, and the AdministrativeJudge will describe the exhibit for the record.  The exhibit should be shown to the opposing partywho must be given an opportunity to question whether the witness has some knowledge of theexhibit (voir dire) and to object to the exhibit.  The party offering the exhibit should have acompetent witness identify and authenticate the exhibit.  If the parties cannot stipulate as to theauthenticity of a document, and the complainant is not represented by counsel, the AdministrativeJudge may make a reasonable attempt to establish the authenticity by making the necessaryinquiries at the hearing or by providing specific instructions to the complainant.  Documents foundby the Administrative Judge not to be authentic should be excluded.  All exhibits should bereferred to by number during the course of the hearing to ensure that the hearing record andtranscript are clear.
- Non-admitted Exhibits  Any exhibits that are not admitted into the hearing record should be retained by theAdministrative Judge and clearly identified as not admitted.  These documents must betransmitted with the hearing record.  This is important to preserve the evidence if an appeal of thecase involves examination of whether the decision to exclude the evidence was correct.  If a partywithdraws an exhibit, the Administrative Judge should acknowledge the withdrawal on the recordand return the exhibit to the party withdrawing it. 
Maintaining Order
The Administrative Judge must maintain control of the hearing.  If the conduct of a partyor witness disrupts, detracts from or jeopardizes the integrity of the hearing, the AdministrativeJudge must take appropriate action to address the misconduct.  This action should includewarning the offending party to abstain from the conduct with notice of the sanction which willfollow if the conduct continues.  Where sanctions are appropriate, the Administrative Judgeshould consider the nature and severity of the misconduct.  If the Administrative Judge imposessanctions, the Administrative Judge must document the record by describing the misconduct indetail, the warnings given to the offending person, the sanction issued, and the AdministrativeJudge's reasons for issuing the sanction.
In the case of repeated or flagrant improper conduct by a representative, theAdministrative Judge may consider expulsion of the party or representative from the hearing,suspension or disqualification of the representative from future hearings, or referral of the matterto the Commission for consideration of suspension or disqualification.  EEO MD-110, 7-28.  Ifthe Administrative Judge expels or disqualifies a representative from the hearing, theAdministrative Judge should permit the representative's party to seek new representation.  EEOMD-110, 7-27.
Rebuttal Evidence
If necessary and appropriate, the Administrative Judge may permit the parties to presentrebuttal evidence.  The Administrative Judge should ensure that the parties understand that thepurpose of presenting rebuttal evidence is not to repeat evidence already presented or to presentevidence that the parties should have reasonably been expected to present in their case in chief. The Administrative Judge may limit the scope of rebuttal to evidence that refutes evidence whicha party may not have reasonably expected to be presented.
   **Closing the Hearing**
The Administrative Judge may permit the parties to make oral closing arguments.  TheAdministrative Judge should explain to a pro se complainant that closing arguments are notevidence but are a summary of the party's case.  The Administrative Judge may, in the alternative,permit the parties to submit closing briefs, within a specific time frame, after the hearing.  It iswithin the Administrative Judge's discretion to permit the briefs to be submitted after the partiesreceive copies of the transcript.  The Administrative Judge may choose not to permit closingbriefs or arguments.
- Copies of the Hearing Transcript  The Administrative Judge may find it useful to have copies of the transcript sent directly tothe parties by the court reporter and thus should instruct the court reporter as to whom to sendcopies.
- Outstanding Matters  The Administrative Judge must decide when any outstanding matters will be resolved, andif the record is to remain open, the reason for keeping the record open, and the date when therecord will be closed.  If appropriate, the Administrative Judge should state the anticipated date ofthe damages phase of the hearing; address the hearing's procedures; and advise the partieswhether any additional discovery will be permitted.
- Decision  The Administrative Judge must indicate if he/she intends to issue a bench decision andwhen he/she will deliver the decision if not immediately.  At this time, the Administrative Judgemay want to instruct the parties that the time frames concerning their appeal rights do not begin torun until the Administrative Judge issues the decision which concludes the hearing process.  SeeChapter Eight.
Remedies
The Administrative Judge has the discretion to decide whether evidence on relief ispresented within the hearing on liability or at a later time.  The Administrative Judge must instructthe parties to be prepared to present evidence on relief at the appropriate time and ensure that therecord is complete with regard to the compensatory damages and equitable relief at issue.  Theregulations set forth guidelines for the provision of equitable relief, including, but not limited to,back pay, reinstatement, expungement of negative personnel records and other appropriatecorrective action.  29 C.F.R. . 1614.501; EEO MD-110, 9-18.  An Administrative Judge mustensure that he/she has obtained any relevant information from both parties regarding changedcircumstances when ordering make-whole relief and that the relief should reflect the remedialgoals of the anti-discrimination statutes violated.
Taking Evidence on Relief at the Hearing on Liability
The Administrative Judge has the sole discretion to order the parties to present evidenceon relief as part of the hearing on liability but must advise the parties prior to the hearing as towhether they should be prepared to do so.  Factors the Administrative Judge may consider inexercising this discretion include: impact on the length of the hearing; number of witnesses totestify about relief; amount and kind of relief sought; and the effect on docket management.  Ifattorney's fees and costs are requested as part of the relief, the Administrative Judge should set aschedule for submission of the petition for attorney's fees and costs and the agency's opposition. The Administrative Judge should make clear to the parties that the agency cannot take final actionand appeal rights do not attach until the Administrative Judge has issued a decision thatencompasses liability, relief, attorney's fees, and costs, if appropriate.
Bifurcating the Hearing
An Administrative Judge may choose to bifurcate the hearing between the liability phaseand the relief phase.  If the Administrative Judge bifurcates the hearing, the Administrative Judgeshould inform the parties as early as possible and ensure that they understand the process.  Factorsto be considered when deciding whether to bifurcate the hearing include: expected length andcomplexity of a bifurcated hearing; the interests of the parties in minimizing expenses prior to adecision on liability; and docket management considerations of the Administrative Judge and theDistrict Office.  The same procedures described above should be followed for the hearing onrelief.
Determining Relief Based on a Written Record
If the circumstances warrant, the Administrative Judge may determine relief based onwritten submissions.  The Administrative Judge should not make this determination on a writtenrecord if the credibility of the complainant or key witnesses is material to the determination ofrelief. 

- The Hearing Record  The Administrative Judge is responsible for returning the complete hearing record to theagency's designated point of contact at the conclusion of the hearing process.  This enables theEEO office to issue a final order based on a review of the complete record.  The complete hearingrecord consists of:       all submissions by the parties to the Administrative Judge, including motions, pre-hearing          statements, and briefs;     all decisions, orders and correspondence issued by the Administrative Judge;     the transcript of the hearing, if a hearing was conducted; and     all hearing exhibits, including those not admitted into the record.  The hearing record does not include the report of investigation and complaint file provided by theagency.  In situations where the Administrative Judge determines it appropriate, he/she may returnhis/her copy of the report of investigation to the agency.   The District or Field Office must retain a copy of all documents issued to the parties for aminimum of two years from the date the Office closes the case, but does not need to retain thehearing transcript or hearing exhibits.  The report of investigation and complaint file may bereturned to the agency if the agency provides postage or makes other arrangements to retrievethem.  If the agency does not retrieve the Administrative Judge's copy of the investigative reportand complaint file within sixty days, they may be destroyed.
CHAPTER EIGHTDecisions- Decisions that Trigger Appeal Rights  Decisions which trigger an agency's obligation to take final action and permit parties to filean appeal are decisions concluding all phases of the hearing process, issued pursuant to the followingregulations: 29 C.F.R. .. 1614.109(b); 109(g); 109(i) [for complaints from individual employees orapplicants for employment] and 29 C.F.R. .. 1614.204(d)(2); 204(d)(7) [for class complaints]. Except for three special situations in class complaint cases discussed below, it is only the decisionconcluding all phases of the hearing process that triggers the agency's obligation to take final actionand permits parties to file an appeal.  In order to ensure that the agency is aware that it is required to take final action as well as toadvise the parties of their appeal rights following an Administrative Judge decision in the abovesituations, it is imperative for the Administrative Judge to clearly state whether and when his/herdecision triggers appeal rights and to attach a Notice To The Parties to that decision.  See AppendixH.
- Decisions That Do Not Trigger Appeal Rights  Certain decisions do not trigger appeal rights; for example, a decision on liability where thecase has been bifurcated.  It is especially important for an Administrative Judge to make clear to theparties that their appeal rights are not triggered at this time.  Administrative Judges are encouraged to issue bench decisions where appropriate becausethey generally expedite the hearing process.  When rendering a bench decision, the AdministrativeJudge must inform the parties that the announcement of the decision from the bench does not triggerthe time limit within which an agency must take final action or a complainant may file an appeal. When the Administrative Judge issues a bench decision, the agency's obligation to take final actionwill not commence until the agency receives the transcribed decision, a copy of the hearing record,and the Order Entering Judgment.  When planning to issue a bench decision, Administrative Judges may find it helpful to preparein advance of the hearing an outline of known issues and uncontested material evidence, standardlanguage on legal principles involved, and other standard statements that would ordinarily be madewhen rendering a formal decision.   An Administrative Judge should consider the following when determining whether to issuea bench decision: the number of witnesses who testified; the number of material facts in dispute; thenumber of credibility determinations to be made; his/her familiarity with the record; and whether theoutcome is clear based upon applicable legal standards.  If an Administrative Judge determines thatthe case is appropriate for a bench decision, he/she should consider the possibility of announcing ashort recess at the conclusion of the hearing to prepare for the issuance of a bench decision.  In theevent the bench decision is not delivered at the conclusion of the hearing, the decision cansubsequently be announced to the parties and the court reporter in person or via telephone.
- Dismissed Claims    - Agency Dismissed Claims  Under 29 C.F.R. . 1614.107(b), an agency may notify a complainant that some of his/herclaims are subject to being dismissed under 29 C.F.R. . 1614.107(a).  If a complainant requests ahearing, the Administrative Judge will have the opportunity to review that agency determination. Where an Administrative Judge upholds the agency's determination under 29 C.F.R. . 1614.107(b)and dismisses a claim, the Administrative Judge must incorporate the dismissal into the decision whichaddresses the merits of the complaint to ensure that the complainant will have an opportunity toappeal the rulings on the dismissed claims.  See Chapter One.
  - Administrative Judge Dismissed Claims  Under 29 C.F.R. . 1614.109(b) an Administrative Judge may dismiss claims on the samegrounds that an agency may under 29 C.F.R. . 1614.107(a).  Where an Administrative Judge hasdismissed some claims under 29 C.F.R. . 1614.109(b) prior to the conclusion of the hearing processor where the Administrative Judge has denied a motion to amend, the decision must restate orincorporate by reference the Administrative Judge's ruling dismissing or denying those claims.  Thiswill preserve the complainant's opportunity to appeal the ruling on the dismissed claims.  See ChapterOne.
  - Transmission of the Hearing Record  The time for an agency to take final action does not begin to run until the agency receives acopy of the hearing record, including the Administrative Judge's decision.  29 C.F.R. . 1614.110(a).   The Administrative Judge's decision and the hearing record (see Chapter 7) should be mailedto the agency's designated point of contact.  The Administrative Judge, by regular mail, should sendthe parties a copy of the decision, a copy of the transcript if not already provided, the Order EnteringJudgment and a Notice To The Parties.(11) The Administrative Judge should include a certificate ofservice.   CHAPTER NINE  Attorney's Fees and Compensatory Damages    - Attorney's Fees  When the Administrative Judge makes a finding of discrimination under Title VII or theRehabilitation Act, he/she shall award attorney's fees and costs contingent on the complainant'seligibility.(12) See generally EEO MD-110, Chapter 11.  Where the Administrative Judge determinesthat an award of fees and costs may be appropriate, he/she shall order complainant's attorney tosubmit a statement of fees and costs with an accompanying affidavit to the Administrative Judgewithin thirty days.  If an Administrative Judge issues a preliminary decision addressing liability, theorder may be contained therein.  The agency may respond to the statement within thirty days of itsreceipt, and, to the extent it opposes the request, must provide detailed documentation in support ofits arguments.  After receipt of the statement, the affidavit, and the agency's response, if theAdministrative Judge deems it necessary, he/she can take oral argument or direct the parties to submitcomments on a specific issue.  The Administrative Judge should issue a decision determining theamount of fees and costs within sixty days of receipt of the statement and affidavit.   In reviewing a fee petition, an Administrative Judge should be aware that to be considered"reasonable," the number of hours must not be "excessive, redundant, or otherwise unnecessary." Hours falling within that category are not compensable.  Where a petition contains many suchcharges, the Commission may apply a percentage across-the-board reduction in the number of hoursclaimed.  Bernard v. Department of Veterans Affairs, EEOC Request No. 05910450 (August 5,1991).  However, an award may be adjusted in certain instances, including situations in which therepresentation and/or degree of success is exceptional.  See EEO MD-110, 11-7.  The Administrative Judge should be aware that a non-prevailing party may be entitled to anaward of attorney's fees as a sanction.  EEO MD-110, 11-11.  The Administrative Judge shouldrequire the party entitled to the fees and/or costs to submit a verified statement as soon as practical,and the Administrative Judge should promptly determine the amount of fees to be awarded.  **Compensatory Damages**
 Under the Civil Rights Act of 1991, individuals who establish claims of unlawful employmentdiscrimination may be entitled to recover compensatory damages.  42 U.S.C.A. . 1981a(a)(1). Compensatory damages are defined as monetary compensation for a loss or harm resulting fromintentional discrimination.  In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that theCommission possesses the legal authority to award compensatory damages in the federal sector EEOprocess.  See Enforcement Guidance: Compensatory and Punitive Damages Available Under . 102of the Civil Rights Acts of 1991, EEOC Notice No. N-915.002, (July 14, 1992)(setting standards fordetermining whether compensatory damages are proven and for calculating appropriate awards).
- Coverage  Compensatory damages are available in claims filed under Title VII and the RehabilitationAct.(13)  Compensatory damages are not available in claims brought under either the AgeDiscrimination in Employment Act or the Equal Pay Act, although liquidated damages arerecoverable under the Equal Pay Act.  Since an Equal Pay Act claim may also be brought as a claimof sex-based wage discrimination under Title VII, if both Title VII and the EPA are found to beviolated, both liquidated and compensatory damages may be awarded.  See Miller v. Department ofthe Navy, EEOC Appeal No. 01943457 (December 8, 1995).  Punitive damages are not available inclaims brought against the federal government.  42 U.S.C.A. . 1981a(b)(1).
- Procedures for Processing  The Administrative Judge should provide an explanation regarding the nature and availabilityof damages and ask the complainant whether he/she is seeking damages.  Prior to the hearing, theAdministrative Judge may also explain what evidence needs to be proffered in order to establishentitlement and may require a proffer of evidence pertaining to the entitlement.  The AdministrativeJudge should also give the agency the opportunity to proffer any evidence that it believes mitigatesthe complainant's entitlement to the requested damages.(14)  Failure to timely assert a claim fordamages after appropriate notice may be deemed a waiver of entitlement to damages.  EEO MD-110,7-10.  See also Chapter 7 on Bifurcating the Hearing.
CHAPTER TENClass Complaints- Generally  This chapter provides general guidance for the processing of class complaints.  AdministrativeJudges should also consult the regulations at 29 C.F.R. . 1614.204 and EEO MD-110, Chapter 8. Whenever possible, class complaints should be assigned on a priority basis and processed asexpeditiously as possible.  Unique to the federal sector EEO administrative process, an individualcannot opt out of a class complaint.  EEO MD-110, 8-7.  An individual complaint that is filed beforeor after the class complaint is filed and that comes within the definition of the class claim(s) will notbe dismissed but will be subsumed within the class complaint.  EEO MD-110, 8-4.
- Initial Processing    - Individual Complaint Becoming a Class Complaint   A complaint does not have to be filed as a class complaint at the beginning of theadministrative process.  If, at any reasonable point during the processing of an individual complaint,it becomes apparent that there are class implications to the claim raised in the individual complaint,a complainant may move for class certification.  Where the complainant had previously satisfied theEEO counseling requirement on the individual claim, the complainant is not required to undergoadditional EEO counseling before moving to seek class certification on that claim.  Rather, theAdministrative Judge should advise complainant of his/her rights and responsibilities as the classagent.  A motion to certify a class complaint shall be denied when the complainant has unduly delayedin moving for certification.  29 C.F.R. . 1614.204(b).  Such a ruling by the Administrative Judge shallinclude a determination of when complainant knew or suspected that the complaint had classimplications.  EEO MD-110, 8-2. 
  - Assignment of an Administrative Judge  Unlike the processing of an individual complaint, the agency forwards the class complaint,within thirty days of receipt, to the Commission for assignment to an Administrative Judge.  Theagency does not have the authority to accept or dismiss a class complaint at this stage, nor toinvestigate the claims in the class complaint.  Therefore, the complaint file usually only contains acopy of the EEO counselor's report and the complaint itself.  However, because the regulationspermit a complainant who initially files a non-class complaint to seek to convert it into a classcomplaint at any reasonable point in the process, the Administrative Judge may occasionally receivemore than just the complaint and EEO counselor's report from the agency.  The standardAcknowledgment and Order for Class Certification appears at Appendix I.  In addition, theAdministrative Judge should issue a Designation of Representative Form at the same time theAcknowledgment and Order is issued.  See Appendix C.  **Decision on Certification**- Dismissal  When an Administrative Judge issues a decision to dismiss a class complaint, he/she must alsodecide at the same time whether to dismiss the individual complaint or to order the agency to resumethe processing of the individual complaint.  The Administrative Judge's decision shall be sent to theagency with a copy to the complainant/class agent and his/her representative, if any.  29 C.F.R. .1614.204(d)(7); EEO MD-110, 8-6.  Because the filing of a timely class complaint suspends theapplicable time limits for initiating EEO counseling for all putative class members, the Commissionhas held that an agency must notify any putative members of the class that were identified by nameduring the pendency of the class complaint of the decision denying certification and of their right toinitiate EEO counseling for filing individual complaints.  See Crown, Cork & Seal Co., Inc. v. Parker,462 U.S. 345, 353-54 (1983); Jones v. United States Postal Service, EEOC Appeal No. 01965858(June 18, 1997); Mole v. Department of the Air Force, EEOC Request No. 05910578 (September25, 1991).     - 29 C.F.R. . 1614.107(a)  A class complaint shall be dismissed if it meets any of the criteria for the dismissal of anindividual complaint set forth in 29 C.F.R. . 1614.107(a).
  - 29 C.F.R. . 1614.204(a)(2)   A class complaint shall be dismissed if it does not meet all of the following four prerequisitesof a class complaint set forth in 29 C.F.R. . 1614.204(a)(2):  (a) Numerosity - The class is so numerous that a consolidated complaint of the     members of the class is impractical.  29 C.F.R. . 1614.204(a)(2)(i).  See Wood, Sr.,     et al. v. Department of Energy, EEOC Request No. 05950985 (October 5, 1998);  (b) Commonality - There are questions of fact common to the class.  29 C.F.R.     . 1614.204(a)(2)(ii).  Factors to determine commonality include: whether the practice     at issue affects the whole class or only a few individuals; the degree of local autonomy     or centralized administration involved; and the uniformity of the membership of the     class, in terms of the likelihood that the class members' treatment will involve     common questions of fact.  See Woods, et al. v. Department of Housing and Urban     Development, EEOC Appeal No. 01961033 (February 13, 1998).  (c) Typicality - The claims of the agent of the class are typical of the claims of the     class.  29 C.F.R. . 1614.204(a)(2)(iii).  The overriding principle with regard to     typicality is that class agents must possess the same interest and suffer the same injury     as the members of the proposed class.  General Telephone Co. v. Falcon, 457 U.S.     147, 156 (1982); Johnson-Feldman, et al. v. Department of Veterans Affairs, EEOC     Appeal No. 01953168 (August 7, 1997), request for reconsideration denied, EEOC     Request No. 05971098 (September 10, 1999).  (d) Adequacy of Representation - The agent of the class, or, if represented, the     representative, will fairly and adequately protect the interests of the class.  29 C.F.R.     . 1614.204(a)(2)(iv).  If the record on a class complaint satisfies the numerosity,     typicality, and commonality requirements for class certification, the Administrative     Judge may conditionally certify the class for a reasonable period of time so that the     class agent may secure adequate representation.    EEO MD-110,     8-5. 
  - Lacking Specificity and Detail  When a class complaint lacks specificity and detail, the Administrative Judge should issue anorder pursuant to 29 C.F.R. . 1614.204(d)(4) requesting the complainant to provide any additionalinformation that may be relevant to determine the scope of the class claims.  Such a request forinformation shall inform the class agent that the class complaint may be dismissed for failure toprovide the requested information within the specified time frame.
  - 29 C.F.R. . 1614.204(d)(3)  When a claim is not included in the EEO Counselor's report on the class complaint, the claimmay be dismissed after the Administrative Judge has afforded the class agent an opportunity to statewithin fifteen days whether the matter was discussed with the EEO Counselor or, if not discussed,to explain why it was not discussed.  29 C.F.R. . 1614.204(d)(3).  If there has been no EEOcounseling on a particular claim and if complainant's explanation is satisfactory, the AdministrativeJudge should hold the class complaint in abeyance until EEO counseling is completed, at which timethe claim should be consolidated with the class complaint.  See 29 C.F.R. . 1614.204(d)(3).  Ifcomplainant's explanation is unsatisfactory, the Administrative Judge should dismiss the claim.  **Certification**
If an Administrative Judge determines that a class complaint meets the criteria forcertification, the Administrative Judge should issue a decision certifying the class.  TheAdministrative Judge's decision certifying a class complaint shall be sent to the agency with a copyto the complainant/class agent and his/her representative, if any.  29 C.F.R. . 1614.204(d)(7); EEOMD-110, 8-6.  The Administrative Judge's decision should also order the agency to notify all classmembers of the acceptance of the class complaint within fifteen days of receiving the decision or areasonable time frame specified in the Administrative Judge's decision.  See 29 C.F.R.. 1614.204(e)(1), (2).  However, where it appears likely that either party may appeal the decision oncertification, the agency may petition the Administrative Judge to stay the order requiring the agencyto notify the class members pursuant to 29 C.F.R. . 1614.204(e) during the period that an appeal maybe filed by either party.  The Administrative Judge should promptly rule on any such request by theagency.  If neither party appeals the Administrative Judge's decision, the Administrative Judge willresume the processing of the class complaint on the merits and lift any previously granted stay for thedistribution of the notice to the class.
 
Obtaining Evidence
Pre-Certification
The Administrative Judge may allow pre-certification discovery to determine whether certification is appropriate.
Post-Certification
The parties are entitled to reasonable development of evidence on matters relevant to theissues raised in the complaint.  This is accomplished through discovery.  See Chapter 4.  Generally,the Administrative Judge may find it useful to hold an initial conference to discuss the parameters ofdiscovery.  At this conference, the Administrative Judge should establish an appropriate schedule fordiscovery of not less than sixty days. 

- Settlement Agreements  The Administrative Judge shall provide the parties the opportunity to resolve the complaint. 29 C.F.R. . 1614.204(g)(1).  The Administrative Judge should require that any settlement agreementbe reduced to writing by the parties and signed by the class agent and the agency.  29 C.F.R.. 1614.204(g)(3).  However, an agreement to settle a class complaint is not effective unless it isapproved by the Administrative Judge after a fairness determination pursuant to the provisions of 29C.F.R. . 1614.204(g)(4).  Before an Administrative Judge may make such a determination, he/sheshall require the agency to give a notice of the proposed resolution to all class members in the samemanner as notification of the acceptance of the class complaint and give the class members anopportunity to file their objections, if any, with the Administrative Judge within thirty days.  Id.  AnAdministrative Judge must evaluate the fairness of the proposed resolution to the class as a wholeregardless of whether any class members file objections.    - Accepting the Class Settlement Agreement  If the Administrative Judge determines that the proposed resolution is fair, adequate, andreasonable to the class as a whole, then the Administrative Judge shall issue an order approving thesettlement agreement which shall bind all members of the class.  29 C.F.R. . 1614.204(g)(4).  Whenan Administrative Judge issues an order approving a class settlement agreement pursuant to 29 C.F.R.. 1614.204(g)(4), an appeal may be filed directly with the Commission.  29 C.F.R. .. 1614.401(c),402(a).  In this case, the Administrative Judge must ensure that he/she not only clearly states that theorder directly triggers the parties' appeal rights but also that a notice of appeal rights is given to: (a)all class members who filed petitions objecting to the proposed class settlement; (b) any class agentthat might have been replaced by another class member as the class agent during the settlementapproval process; (c) the class agent that originally proposed the settlement; and (d) the agency.  TheAdministrative Judge must attach a copy of EEOC Form 573, Notice of Appeal/Petition, to suchorder.  EEO MD-110, 8-10.  The agency is not required to issue a final order following theAdministrative Judge's order to approve the settlement.  **Decision Vacating the Settlement Agreement**
If the proposed resolution is not fair, adequate and reasonable to the class a whole, theAdministrative Judge shall issue a decision vacating the proposed resolution.  29 C.F.R.. 1614.204(g)(4).

If an Administrative Judge vacates the settlement agreement, the agency is not required toissue a final order.  An interlocutory appeal may be filed directly from the Administrative Judge'sdecision by: (a) either party to the class settlement; (b) any petitioner who objected to the approvalof the proposed settlement; or (c) any class agent that might have been replaced by the AdministrativeJudge during the settlement process.  The Administrative Judge must send a copy of his/her decisionto each of these interested parties along with a copy of EEOC Form 573, Notice of Appeal/Petition,and inform them of their right to file an appeal with the Commission within thirty days.  TheAdministrative Judge's order vacating the class settlement should inform the parties that the hearingshall resume at the end of the filing period if an interlocutory appeal is not filed during that time.  **Hearing Procedures**
Hearing procedures in class complaints are the same as those applied to hearings in individualcomplaints of discrimination as set forth at 29 C.F.R. . 1614.109.
  **Administrative Judge's Recommended Decision on the Merits**
The Administrative Judge shall transmit to the agency a decision (entitled"RECOMMENDED DECISION") on the class complaint, including systemic relief for the class andany individual relief.  29 C.F.R. . 1614.204(i)(1).  The Administrative Judge must ensure that theparties are properly advised of their obligations and rights following the issuance of the recommendeddecision.  See Appendix J.  The recommended decision shall be sent to the agency together with theentire record, including the transcript.  The Administrative Judge shall also notify the class agent, ina separate communication, of the date on which the recommended decision was forwarded to theagency.  29 C.F.R. . 1614.204(i)(3); EEO MD-110, 8-11.  If the Administrative Judge finds no classrelief appropriate, he/she shall determine if a finding of individual discrimination is warranted and, ifso, shall recommend appropriate relief.  29 C.F.R. . 1614.204(i)(2).
  **Adjudication of Individual Claims for Relief**- Individual Claims  When discrimination is found, the Administrative Judge retains jurisdiction over the classcomplaint in order to resolve any disputed claims by class members and may hold hearings orotherwise supplement the record on a claim filed by a class member.  29 C.F.R. . 1614.204(l)(3);EEO MD-110, 8-14.  An Administrative Judge's order should advise the agency to inform him/herin writing of the agency's intent to dispute a class member's claim, and provide a copy of such noticeto the class member.
- Agency Disputing Individual Claims  Once the agency informs the Administrative Judge and the class member of its intent todispute the class member's claim, the Administrative Judge will issue an order tolling the ninety dayperiod within which the agency is required to issue a decision on the class member's claim. EEO MD-110, 8-14.  The Administrative Judge's order will advise the agency to provide a statement in supportof its decision to dispute the class member's claim and any supporting evidence within fifteen daysof the agency's receipt of the Administrative Judge's order, providing a copy of any such submissionto the class member.  The class member will have fifteen days from the date of service of the agency'ssubmission to respond to the agency's submission and may file a statement and documents in supportof his/her claim, providing a copy of any such submission to the agency.  The Administrative Judgehas the discretion to enlarge the fifteen day period at the written request of either party or on his/herown motion.  EEO MD-110, 8-14.
- Decision on Individual Claims  The Administrative Judge may determine whether he/she needs additional information orshould hold a hearing in order to further develop the record regarding the class member's claim.  Atthe conclusion of fact finding, the Administrative Judge will issue a decision concerning the classmember's claim and forward the decision to the class member and the agency. EEO MD-110, 8-14. The decision will advise the agency that the ninety day period for issuing a final decision on the claimwill resume upon its receipt of the Administrative Judge's decision. 
APPENDICESAppendix A		                                            EQUAL EMPLOYMENT OPPORTUNITY COMMISSION                    [District/Field Office]                           [Address]____________________________________                                    )    EEOC No.                            v.        )    Agency No.     ____________________________________)                                   
**ORDER DIRECTING AGENCY TO PRODUCE COMPLAINT FILE**

On [date], this office received a hearing request from complainant in the above-referencedcomplaint.  A copy of the hearing request is attached.

The agency is ordered, within the earlier of fifteen (15) days from receipt of this Order orfrom receipt of complainant's request for a hearing, to provide this office a copy of the completecomplaint file, including the report of investigation, if any, for the above-referenced complaint.  Theagency also shall send a copy of the complaint file including the report of investigation to thecomplainant, if it has not previously done so.  29 C.F.R. . 1614.108(g); EEO MD-110, Chapter 7,Sections I-II.  The complaint file must be forwarded even where there has been no investigation orthere is an incomplete investigation.  If the agency cannot provide the complaint file within fifteen(15) days, it must show good cause in writing to the Administrative Judge.

If the agency fails to provide the requested materials within fifteen (15) days from the dateof receipt of this Order or to show good cause why it has not done so, the Administrative Judge mayrequire the agency to bear the costs of the complainant's discovery, including attorney's fees, orimpose other sanctions as appropriate.  29 C.F.R. . 1614.109(f)(3); EEO MD-110, Chapter 7,Section III.  Sanctions may also be imposed for failure to investigate the claims adequately pursuantto EEO MD-110, Chapter 6.
                                        _________________________________                                         [Name]                                        [Title]Enclosure: Copy of Hearing RequestDesignated Point of Contact:  ___________________________________________                               [District Director or Supervisory Administrative Judge]                              ___________________________________________                              [Telephone Number]
**CERTIFICATE OF SERVICE**

For timeliness purposes, it shall be presumed that the parties received the foregoing ORDERDIRECTING AGENCY TO PRODUCE COMPLAINT FILE within five (5) calendar days after thedate it was sent via first class mail.  I certify that on [date], the foregoing ORDER DIRECTINGAGENCY TO PRODUCE COMPLAINT FILE was sent via first class mail to the following:
[Complainant + Address][Complainant's Representative + Address][Agency EEO Representative + Address]                                   ______________________________                                   [Name]                                   [Title]Appendix B             EQUAL EMPLOYMENT OPPORTUNITY COMMISSION                    [District/Field Office]                           [Address]____________________________________                                    )    EEOC No.                            v.        )    Agency No.____________________________________)   
**ACKNOWLEDGMENT AND ORDER**

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

The Administrative Judge whose name appears below has been assigned to preside over thiscomplaint.  Failure to follow the orders of the Administrative Judge or to comply with theCommission's regulations may result in sanctions.  See 29 C.F.R. . 1614.109(f)(3).  When a conflictbetween the parties arises, the parties should attempt to resolve the conflict themselves beforebringing it to the attention of the Administrative Judge.
- CORRESPONDENCE AND MOTIONS   Each party must provide the opposing party with a copy of all correspondence that he/shesends to the Administrative Judge.  The attachment of a certificate of service may demonstrate thatthe opposing party was provided a copy.  Failure to provide a copy of submissions to the opposingparty may result in return of such submissions without consideration.  The parties are reminded oftheir ongoing obligation to keep this office informed of their current mailing address.  Other than toclarify a procedural issue or during alternative dispute resolution, it is inappropriate for the partiesto 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 inwriting and a showing of good cause.  Failure by complainant to obtain representation, or failure bythe 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 faitheffort to resolve the matter with the non-moving party and, where appropriate, indicate whether theopposing party has an objection to the request or motion.  All motions should be accompanied by aproposed order granting the relief requested in the motion.
- DESIGNATION OF REPRESENTATIVE  The parties are entitled to be represented.  However, the complainant is not required to berepresented.  The EEOC does not provide representatives for either party.  Even if the complainanthas previously designated a representative for EEO counseling and agency investigation of thecomplaint, he/she must renew that designation for the purpose of EEOC processing of this complaint. The parties must inform this office of the name, address and telephone number of his/her respectiverepresentative.  If that representative changes, or if a currently unrepresented complainant obtainsrepresentation in the future, the party shall notify the Administrative Judge and the other partyimmediately.
- PARTIAL DISMISSALS  The parties have thirty (30) calendar days from receipt of this Order to identify any claims theagency has dismissed from the complaint during the agency investigative process, pursuant to 29C.F.R. . 1614.107(a), and to comment on the appropriateness of each dismissal.  Once theopportunity 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 eachclaim.  If the complainant fails to oppose in writing the dismissal of a claim within the thirty (30) daycomment period, the opportunity to have the dismissal reviewed by the Administrative Judge shallbe deemed waived.
- SETTLEMENT  Within thirty (30) calendar days of receipt of this Order, the parties are directed to contacteach other to define the claim(s) presented, to develop stipulations (i.e., agreements between theparties that certain facts are true for purposes of adjudicating this complaint) and to discusssettlement.  The parties must discuss specific settlement proposals.  The agency must designate anindividual with settlement authority to attend settlement discussions convened by an AdministrativeJudge.
- DISCOVERY  The parties are hereby notified of their right to seek discovery prior to the hearing inaccordance with 29 C.F.R. . 1614.109(d).  The parties must cooperate with each other in honoringdiscovery requests.  The parties are expected to initiate and complete needed discovery with aminimum of intervention by the Administrative Judge.  Except as indicated below, copies ofinterrogatories, requests for production of documents, requests for admissions, depositionnotices 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 subparts.
    - Requests for admissions shall not exceed thirty (30) in number including               subparts.  This limit does not apply to admissions relating to the authenticity               of documents.
    - 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 the federal government.  Absent prior approval from the Administrative Judge, a party must initiate discovery withintwenty (20) calendar days of receipt of this Order.  If a party does not submit a timely discoveryrequest, the Administrative Judge may determine that the party has waived the right to pursuediscovery.  A party must respond to a request for discovery within thirty (30) calendar days from receiptof the request.  Requests for discovery and objections to such requests must be specific.  A notice ofdeposition does not require a written response; however, any objection to a notice of deposition mustbe served promptly on the moving party.  A deposition may be noticed and taken at any time duringthe discovery period.   Discovery motions, including motions to compel, must be filed within ten (10) calendar daysafter receipt of a deficient response or after the response to the discovery is due, whichever occursfirst.  Motions to compel and other discovery motions must be accompanied by the discovery requestsand responses and a declaration stating that the moving party has made a good faith effort to resolvethe discovery dispute.  The declaration shall indicate the efforts made to resolve the dispute andidentify which items remain in dispute.  Statements in opposition to discovery motions must be filedwithin ten (10) calendar days of receipt of the motion.  Rulings will be made based upon the writtensubmissions.  The failure to timely file objections to discovery may result in the objections beingdeemed waived.  **SANCTIONS FOR FAILURE TO FOLLOW ORDERS**
Failure to follow this Order or other orders of the Administrative Judge may result insanctions pursuant to 29 C.F.R. . 1614.109(f)(3).  The Administrative Judge may, where appropriate:

(A)    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;

(B)    Consider the matters to which the requested information or testimony pertains          to be established in favor of the opposing party;

(C)    Exclude other evidence offered by the party failing to produce the requested          information or witness;

 (D)    Issue a decision fully or partially in favor of the opposing party; or

(E)    Take such other actions as appropriate.
  **DECISION WITHOUT A HEARING**
Pursuant to 29 C.F.R. . 1614.109(g)(1), a party may file a motion for summary judgment ifthat party believes that some or all material facts are not in genuine dispute and there is no genuineissue as to credibility.  A motion for summary judgment must include a statement of theundisputed material facts.  Unless otherwise ordered by the Administrative Judge, a motion forsummary judgment must be filed not later than fifteen (15) days after the close of discovery; theopposing party will then have fifteen (15) days from receipt of the motion in which to file a response;and the moving party will then have five (5) days from receipt of the response to file a reply.  Motionsfor summary judgment, and responses to such motions, shall contain specific citations to referencedevidence (e.g., cite the specific pages of the report of investigation, or other submitted evidence, insupport 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 dismisscomplaints on his/her own initiative, or upon the Agency's motion to dismiss a complaint.
  **AMENDMENT AND CONSOLIDATION OF COMPLAINTS**
Pursuant to 29 C.F.R. . 1614.106(d), the complainant may move to amend his/her complaintto add claims that are like or related to the original complaint.  In order to amend the complaint, thecomplainant shall submit a motion as early as possible to the Administrative Judge stating the newclaim, the date(s) when it occurred, and why it is like or related to the original complaint.  TheAdministrative Judge may amend the original complaint to include the new claim(s) if he/she findsthe new claim is like or related to the original complaint.  Motions to amend filed late in the processmay 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 informationidentifying such complaint(s).
                                   It is so ORDERED.For the Commission:             _________________________________                                [Administrative Judge]                                [Title]                                [Telephone Number]  **CERTIFICATE OF SERVICE**  For timeliness purposes, it shall be presumed that the parties received the foregoingACKNOWLEDGMENT AND ORDER within five (5) calendar days after the date it was sent viafirst class mail.  I certify that on [date], the foregoing ACKNOWLEDGMENT AND ORDER wassent first via first class mail to the following:  [Complainant + Address][Complainant's Representative + Address][Agency EEO Representative + Address][Agency Representative + Address]                                ______________________________                                [Name]                                [Title]        Appendix C              EQUAL EMPLOYMENT OPPORTUNITY COMMISSION                    [District/Field Office]                           [Address]____________________________________                                    )    EEOC No.                            v.        )    Agency No.____________________________________)     
**DESIGNATION OF REPRESENTATIVE**
OPTION A:   ELECTION TO PROCEED WITH A REPRESENTATIVEI hereby designate the following individual as the representative for the __ COMPLAINANT or __ AGENCY in the above-referenced EEOC case:______________________________________________________________________Name of Representative               Telephone No.       Facsimile No.Address: _____________________________________________________________                                     _____________________________________________________________         _____________________________________________________________         E-mail Address: _____________________________________________OPTION B:   ELECTION TO PROCEED WITHOUT A REPRESENTATIVEI, ______________________, will proceed without a representative in the above-referenced EEOC case. I understand that I must notify the Administrative Judge and the agency immediately if I obtain representation at a later date._____________________________________               ____________________Signature of Party                                  DateComplainant, please also provide your current address, telephone number, fax number, and E-mail address:         _____________________________________________________________                                     _____________________________________________________________         _____________________________________________________________         E-mail Address: _____________________________________________        Appendix D               EQUAL EMPLOYMENT OPPORTUNITY COMMISSION                    [District/Field Office]                           [Address]____________________________________                                    )    EEOC No.                            v.        )    Agency No.____________________________________)       **CONSOLIDATION ORDER**  EEOC regulations at 29 C.F.R. Part 1614 provide Administrative Judges with the discretionto consolidate complaints after appropriate notification to the parties.  29 C.F.R. . 1614.606.  Theabove complaints are hereby consolidated under EEOC No. [ ].  The parties are directed to follow the procedures set forth in the original Acknowledgmentand Order issued previously.  [Discovery must be completed within (#) calendar days of the date ofthis Order.] [The agency is ordered to complete an expedited investigation of { } and forward thereport to this Office within (#) calendar days of the date of this Order.  A copy of the report shouldalso be forwarded to complainant.]  It is so ORDERED.  Date:                           ___________________________                                [Name]                                [Title]  **CERTIFICATE OF SERVICE**  For timeliness purposes, it shall be presumed that the parties received the foregoingCONSOLIDATION ORDER within five (5) calendar days after the date it was sent via first classmail.  I certify that on [date], the foregoing CONSOLIDATION ORDER was sent via first class mailto the following:  [Complainant + Address][Complainant's Representative + Address][Agency EEO Representative + Address][Agency Representative + Address]                                ______________________________                                [Name]                                [Title]        Appendix E              EQUAL EMPLOYMENT OPPORTUNITY COMMISSION                    [District/Field Office]                           [Address]____________________________________                                    )    EEOC No.                            v.        )    Agency No.____________________________________)       **NOTICE OF INTENT TO ISSUE DECISION WITHOUT A HEARING**  After a review of the record, the Administrative Judge has determined that there may be no materialfacts in dispute, and that it may therefore be appropriate to issue a decision without holding a hearing. See 29 C.F.R. . 1614.109(g)(3).  The claim(s) raised in the complaint(s) before the AdministrativeJudge are as follows: [identify claims].  Based on a preliminary review of the record, it appears thatthe following material facts are not in dispute: [identify the undisputed material facts which appearto be dispositive of the case].  Applicable Law    - Legal Standards for Granting A Decision Without A Hearing [**INSTRUCTION** to Administrative Judge: Insert legal standard for summary judgment.  Forexample:    A decision without a hearing, also known as summary judgment, is appropriate if the  record shows that there is no genuine issue as to any material fact and a party is  entitled to judgment as a matter of law.  There is no genuine issue of material fact if,  based on the relevant evidence in the record, taken as a whole, a reasonable fact finder  could not find in favor of the opposing party.  Matsushita Elec. Indus. Co. v. Zenith  Radio, 475 U.S. 574, 587 (1986).  Material factual disputes include credibility  disputes where two or more people have different versions of the relevant event, and  the determination of that credibility dispute will affect the outcome of the case.  In  determining whether there are no disputed material facts, the Administrative Judge  must draw all inferences from the record in the light most favorable to the party  opposing summary judgment.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248  (1986).  Only disputes over facts that might affect the outcome of the case under the  applicable substantive law, and not irrelevant and unnecessary factual disputes, will  preclude summary judgment.  Id.]   Applicable Substantive Law
[**INSTRUCTION** to Administrative Judge:  Insert statement of current legal standards applicableto complainant's claims.  The Administrative Judge should maintain current statements of applicableCommission precedent on various claims for use in this order.  See EEO MD-110, Appendix L,EEOC Compliance Manual and Enforcement Guidance, and recent Commission's federal sectordecisions on the "Personnet" computer research system, on Westlaw (database: FLB-EEOC), LEXIS(file:labor;library: eeopub) and on our website.  Administrative Judges must apply substantive legalstandards in accordance with Commission precedent and policy.]
  Content of the Parties' Responses
When opposing summary judgment, a party must respond with specific facts showing that there isa genuine dispute as to a material fact and that the other party is not entitled to judgment as a matterof law.  Anderson, 477 U.S. at 250. 

If a party opposes summary judgment, he/she may not rely on mere allegations, speculation,conclusory statements, or denials.  The party should cite to specific evidence contained in the reportof investigation which creates a factual dispute regarding a material issue in the case.  If not alreadycontained in the report of investigation, the party should also include any relevant documentaryevidence or witness statements, interrogatory answers, admissions, or other supporting materials andprovide a clear and specific statement of their relevance.  Where information is compiled from agencyrecords, provide a declaration from the person preparing the evidence as to the method used toprepare it.

**UNLESS A PARTY DEMONSTRATES THAT THERE IS A GENUINE ISSUE OFMATERIAL FACT IN DISPUTE, NO HEARING WILL BE HELD IN THIS MATTER. THEREFORE, IF THE PARTY PLANS TO CALL WITNESSES TO TESTIFY IN SUPPORTOF CLAIMS OR DEFENSES, THE PARTY SHOULD OBTAIN WRITTEN STATEMENTSFROM THEM, AND SUBMIT THESE STATEMENTS IN SUPPORT OF THE ARGUMENTAGAINST SUMMARY JUDGMENT.**
  Time for Responses
Both parties have fifteen days from receipt of this notice to submit a response.  In addition, bothparties have five days from receipt of each other's responses to submit a reply.  Each party must senda copy of his/her response and reply to the other party.
                                   It is so ORDERED.                                ___________________________________                                [Administrative Judge]  **CERTIFICATE OF SERVICE**  For timeliness purposes, it shall be presumed that the parties received the foregoing NOTICE OFINTENT TO ISSUE DECISION WITHOUT A HEARING within five (5) calendar days after thedate it was sent via first class mail.  I certify that on [date], the foregoing NOTICE OF INTENT TOISSUE DECISION WITHOUT A HEARING was sent via first class mail to the following:  [Complainant + Address][Complainant's Representative + Address][Agency EEO Representative + Address][Agency Representative + Address]                                ______________________________                                [Name]                                [Title]        Appendix F              EQUAL EMPLOYMENT OPPORTUNITY COMMISSION                    [District/Field Office]                           [Address]____________________________________                                    )    EEOC No.                            v.        )    Agency No.____________________________________)                                         **ORDER OF DISMISSAL**  Notice is hereby given that the above captioned case is DISMISSED pursuant to...  For the followingreasons...  This office will hold the report of investigation and the complaint file for sixty days, during whichtime the agency may arrange for their retrieval.  If we do not hear from the agency within sixty days,we will destroy our copy of these materials.                                  It is so ORDERED.For the Commission:             ___________________________                                [Name]                                [Title]  **CERTIFICATE OF SERVICE**  For timeliness purposes, it shall be presumed that the parties received the foregoing ORDER OFDISMISSAL within five (5) calendar days after the date it was sent via first class mail.  I certify thaton [date], the foregoing ORDER OF DISMISSAL was sent via first class mail to the following:  [Complainant + Address][Complainant's Representative + Address][Agency EEO Representative + Address][Agency Representative + Address]                                ______________________________                                [Name]                                [Title]        Appendix G              EQUAL EMPLOYMENT OPPORTUNITY COMMISSION                    [District/Field Office]                           [Address]____________________________________                                    )    EEOC No.                            v.        )    Agency No.____________________________________)       **ORDER ENTERING JUDGMENT**  For the reasons set forth in the enclosed Decision dated [date], judgment in the above-captionedmatter is hereby entered.  A Notice To The Parties explaining their appeal rights is attached.  This office is also enclosing a copy of the hearing record for the agency and a copy of the transcriptfor complainant and/or his/her representative.  This office will hold the report of investigation and the complaint file for sixty days, during whichtime the agency may arrange for their retrieval.  If we do not hear from the agency within sixty days,we will destroy our copy of these materials.                                  It is so ORDERED.For the Commission:             ___________________________                                [Name]                                [Title]  Enclosures  **CERTIFICATE OF SERVICE**  For timeliness purposes, it shall be presumed that the parties received the foregoing [documents] within five (5) calendar days after the date they were sent via first class mail.  I certify that on [date],the foregoing [documents] were sent via first class mail to the following:  [Complainant + Address][Complainant's Representative + Address][Agency EEO Representative + Address][Agency Representative + Address]                                ______________________________                                [Name]                                [Title]        Appendix H  **NOTICE TO THE PARTIES**  ***TO THE AGENCY:***  Within forty (40) days of receiving this decision and the hearing record, you are required to issue afinal order notifying the complainant whether or not you will fully implement this decision.  Youshould 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 FederalOperations, the right to file a civil action in a federal district court, the name of the proper defendantin 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 ofAppeal/Petition) must be attached to your final order.  If your final order does not fully implement this decision, you must simultaneously file an appeal withthe Office of Federal Operations in accordance with 29 C.F.R. 1614.403, and append a copy of yourappeal to your final order.  See EEOC Management Directive 110, November 9, 1999, Appendix O. You must also 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 of Federal Operations when you receive a finalorder 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 yourown appeal any time after the conclusion of the agency's (40) day period for issuing a final order. See EEO MD-110, 9-3.  In either case, please attach a copy of this decision with your appeal.  Do not send your appeal to the Administrative Judge.  Your appeal must be filed with the Office ofFederal Operations at the address set forth below, and you must send a copy of your appeal to theagency at the same time that you file it with the Office of Federal Operations.  In or attached to yourappeal to the Office of Federal Operations, you must certify the date and method by which you senta copy of your appeal to the agency.  ***WHERE TO FILE AN APPEAL:***  All appeals to the Commission must be filed 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:  Number: (202) 663-7022  *Facsimile transmissions of more than ten (10) pages will not be accepted.*  **COMPLIANCE WITH AN AGENCY FINAL ACTION**  Pursuant to 29 C.F.R. . 1614.504, an agency's final action that has not been the subject of an appealto the Commission or a civil action is binding on the agency.  If the complainant believes that theagency has failed to comply with the terms of this decision, the complainant shall notify the agency'sEEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knewor should have known of the alleged noncompliance.  The agency shall resolve the matter and respondto the complainant in writing.  If the agency has not responded to the complainant, in writing, or ifthe complainant is not satisfied with the agency's attempt to resolve the matter, the complainant mayappeal to the Commission for a determination of whether the agency has complied with the terms ofits final action.  The complainant may file such an appeal 35 days after serving the agency with theallegations of non-compliance, but must file an appeal within 30 days of receiving the agency'sdetermination.  A copy of the appeal must be served on the agency, and the agency may submit aresponse to the Commission within 30 days of receiving the notice of appeal.        Appendix I                          EQUAL EMPLOYMENT OPPORTUNITY COMMISSION                    [District/Field Office]                           [Address]_____________________________________In the Certification of:             )                                     )    EEOC No.                 , et al.            )    Agency No.       Class Agent,                  )                               v.        )    _____________________________________)       **ACKNOWLEDGMENT AND ORDER FOR CLASS CERTIFICATION**  This is to acknowledge receipt of the above class complaint.  EEOC Regulation 29 C.F.R.. 1614.204 and Chapter 8 of EEOC Management Directive 110, November 9,1999 (EEO MD-110) govern the conduct of class complaints.  The regulationsand EEO MD-110 are available on the Commission's website at www.eeoc.gov.  Pursuant to 29 C.F.R. . 1614.204(c), the subject class complaint was filed against the [agency]. Thecomplaint was forwarded to this office for a decision regarding certification of the complaint as aclass action.  The Administrative Judge whose name appears below has been assigned to preside overthis complaint.  Failure to follow the orders of the Administrative Judge or to comply with theCommission's regulations may result in sanctions.  See 29 C.F.R. . 1614.109(f)(3).  When aconflict between the parties arises, the parties should attempt to resolve theconflict themselves before bringing it to the attention of the AdministrativeJudge.      - DESIGNATION OF REPRESENTATIVE  The parties are entitled to be represented.  However, a class agent is not requiredto be represented.  The EEOC does not provide representatives for either party. Even if the class agent has previously designated a representative for EEOcounseling and agency investigation of the complaint, he/she must renew thatdesignation for the purpose of EEOC processing of this complaint.  The parties mustinform this office of the name, address and telephone number of his/her respective representative. If that representative changes, or if a currently unrepresented class agent obtains representation in thefuture, the party shall notify the Administrative Judge and the other party immediately.
    - CORRESPONDENCE AND MOTIONS  The parties are hereby notified and authorized to submit specific information as to whether or not thiscomplaint meets the certification requirements under 29 C.F.R. . 1614.204(a) for a class complaint. Such submissions shall be received in this office no later than fifteen (15) days from receipt of thisOrder.  Each party must provide the opposing party with a copy of all correspondencethat he/she sends to the Administrative Judge.  The attachment of a certificateof service may demonstrate that the opposing party was provided a copy.  Failureto provide a copy of submissions to the opposing party may result in return ofsuch submissions without consideration.  The parties are reminded of theirongoing 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) communicationwith the Administrative Judge.  Extensions of filing dates and postponements will not be granted, absent aprompt request in writing and a showing of good cause.  Failure by the classagent to obtain representation, or failure by the agency to assign this matter toa representative, will not be grounds for postponement.  On any request or motion, the requesting party shall certify that he/she has madea good faith effort to resolve the matter with the non-moving party and, whereappropriate, indicate whether the opposing party has an objection to the requestor motion.  All motions should be accompanied by a proposed order granting therelief requested in the motion.  At his/her discretion, the Administrative Judge may permit the parties to engage in limited discoveryto develop evidence as to whether the class should be certified.
    - STANDARDS FOR CERTIFICATION  The Commission must determine whether this complaint meets the four procedural prerequisites fora class complaint under 29 C.F.R. . 1614.204.  Those prerequisites are numerosity, commonality,typicality, and adequacy of representation.  The Commission must also determine whether it shouldbe dismissed for any other procedural reason listed at 29 C.F.R. . 1614.107.  Specifically:  (1)  whether the complaint is within the purview of subpart B - class complaints       of discrimination, 29 C.F.R. . 1614.204;  (2)  whether the complaint was timely filed;  (3)  whether the complaint consists of an allegation identical to an allegation       contained in a previous complaint filed on behalf of the same class which is       pending in the agency or which has been resolved or decided by the agency;  (4)  whether the agent consulted an EEO counselor in a timely manner;   (5)  whether the complaint lacks specificity and detail; and   (6)  whether the complaint meets the following prerequisites:  (a) the class is so numerous that a consolidated complaint of the members of                 the class is impractical;  (b) there are questions of fact common to the class;  (c) the claims of the agent of the class are typical of the claims of the class;                 and  (d) the agent of the class or his/her representative will fairly and adequately                 protect the interests of the class.  Class action certification decisions made under Rule 23 of the Federal Rules of Civil Procedure arealso used as guidance for determining whether the above cited regulations are fulfilled in making adecision in this matter.  The class agent's failure to adequately address any of these factors will resultin a determination that the class should not be certified.
    - SANCTIONS FOR FAILURE TO FOLLOW ORDERS  Failure to follow this Order or other orders of the Administrative Judge mayresult in sanctions pursuant to 29 C.F.R. . 1614.109(f)(3).  The AdministrativeJudge may, where appropriate:  (A)    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;  (B)    Consider the matters to which the requested information or          testimony pertains to be established in favor of the opposing          party;  (C)    Exclude other evidence offered by the party failing to produce          the requested information or witness;  (D)    Issue a decision fully or partially in favor of the opposing          party; or  (E)  Take such other actions as appropriate.                                  It is so ORDERED.For the Commission:             _________________________________                                [Administrative Judge]                                [Title]                                [Telephone Number]  **CERTIFICATE OF SERVICE**  For timeliness purposes, it shall be presumed that the parties received the foregoingACKNOWLEDGMENT AND ORDER FOR CLASS CERTIFICATION within five (5) calendardays after the date it was sent via first class mail.  I certify that on [date], the foregoingACKNOWLEDGMENT AND ORDER FOR CLASS CERTIFICATION was sent via first class mailto the following:  [Class Agent + Address][Class Agent's Representative + Address][Agency EEO Representative + Address][Agency Representative + Address]                                ______________________________                                [Name]                                [Title]        Appendix J  **NOTICE TO THE AGENCY**  Attached is a report of findings and recommendations issued pursuant to 29 C.F.R.. 1614.204(i).  Within sixty (60) days of receiving this report of findings and recommendations, theagency shall issue a final decision, in writing, notifying the class agent, via certified mail, whether ornot the agency will accept, reject, or modify the findings and recommendations of the AdministrativeJudge.  If the agency has not issued a final decision within sixty (60) days of its receipt of theAdministrative Judge's report of findings and recommendations, those findings and recommendationsshall become the final decision, and the agency shall transmit the final decision  to the class agentwithin five (5) days of the expiration of the sixty (60) day period.  The final decision shall inform theclass agent of the right to appeal or to file a civil action in accordance with 29 C.F.R. Section 1614Subpart D and of the applicable time limits.  29 C.F.R. . 1614.204(j).    Footnotes  1.  An Administrative Judge should not consolidate a complaint pending at the agency level with a complaint pending hearing if the complainant does not want the complaints to be consolidated.  2.  When dismissing a complaint, the Administrative Judge should be alert to possible fragmentation of the complaint.  When timely raised, a series of subsequent events involving the same claim should not be treated as separate complaints but should be added to and treated as part of the first claim.  EEO MD-110, 7-8.  3.  In determining whether complainant proved that the allegation of improper processing has merit, the Administrative Judge may consider whether complainant has already raised the concerns with the agency official responsible for complaint processing; whether the concerns remain unresolved; and whether the complainant raises the concerns before the Administrative Judge issues a decision on the underlying complaint.  EEO MD-110, 5-26.  The Administrative Judge should know whether the first criterion is satisfied because the agency official presented with the concerns is required to ensure that the allegation, and any steps taken to address it, are documented in the record for the underlying EEO complaint.   4.  When dismissing for this reason, the Order of Dismissal should contain instruction to the agency to provide appeal rights to the Merits Systems Protection Board if it has not already done so.  5.  The written standards for the scope of discovery differ slightly in EEO MD-110 and the Federal Rules.  According to EEO MD-110, discovery requests should: (1) be as specific as possible; (2) be reasonably calculated to discover non-repetitive, material evidence; and (3) indicate (if not self-evident) the materiality of the documentary or testimonial evidence sought and the manner in which the information sought will elucidate the accepted claims.  EEO MD-110, 7-20.  The Federal Rules provide that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved and that the information sought need not be admissible at trial if it is reasonably calculated to lead to the discovery of admissible evidence.  Fed. R. Civ. P. 26(b)(1).  6.  The Administrative Judge has discretion to stay discovery while the parties are engaged in ADR.   7.  For the definition of "routine use," see 5 U.S.C. � 552a(a)(7).  8.  EEOC/GOVT-1, routine use e; OPM/GOVT-1, routine use w; OPM/GOVT-2, routine use g.  9.   EEOC/GOVT-1, routine use b; OPM/GOVT-1, routine use p; OPM/GOVT-2, routine use i.  10.   The Order may properly be captioned as an "ORDER OF DISMISSAL" where the sanction imposed is dismissal of the complaint.  See Appendix F.  11.  The Order Entering Judgment should be issued in lieu of a transmittal letter.  12.  Attorney's fees and costs are not available under either the Age Discrimination in Employment Act or the Equal Pay Act for services performed at the administrative level.  13.  In Rehabilitation Act cases where the claim involves the failure to provide a reasonable accommodation, compensatory damages are not available when the agency demonstrates that it made a good faith effort to accommodate the complainant.  42 U.S.C.A. � 1981a(a)(3).  14.  In limited circumstances, the Administrative Judge may order the complainant to undergo a medical examination.  See EEO MD-110, 7-11.    *This page was last modified on December 12, 2008.*  Return to Home Page