Notwithstanding the adverse publicity generated by an earlier “Federal Sector Reform Proposal” to reduce federal employee rights to hearings before EEOC administrative judges, the EEOC is planning to implement an Assessment Program for Hearings Units in its Washington, DC Field Office. See Federal Legal Corner, June 5, 2002 and July 31, 2002. The planned experimental program will establish three categories of cases after a review by an “Assessment Team” made up of two Washington Field Office managers. Furthermore, this experimental program will be implemented without a proposed change to the EEOC regulations as previously promised by Chair Cari M. Dominguez.
For “Red” cases, notices of proposed dismissal will be issued, and the cases will be assigned to an AJ for procedural dismissal without discovery under 29 CFR 1614.107 because they allegedly fail to satisfy threshold procedural requirements. For “Yellow” cases, these claims are supposed to be appropriate for resolution through a summary judgment procedure because there are allegedly no genuine issues of material fact. Notices of Proposed Summary Judgment will be issued that require consecutive responses from the parties beginning with an agency motion. No discovery will be granted, and the AJ may adopt the agency response if appropriate.
Cases that are not appropriately designated as Red or Yellow will be designated as “Green” cases. Only these cases will be entitled to the issuance of an acknowledgment order providing for discovery. The assessment team is required to fill out an assessment form as why such cases are not appropriate for summary judgment, e.g. credibility assessment is required to resolve disputes between the complainant and the selecting official as to whether the selecting official made discriminatory comments during the interview.
It appears that this is a test program which will then be used for all federal employee cases if satisfactory to the EEOC Chair. While there should be little doubt that the limitation of the right to a hearing and discovery will result in the more expeditious processing of federal employee cases, the experimental program seriously impacts on federal employees’ due process rights, especially pro se employees and those represented by non-attorneys. By placing undue emphasis on the agencies own EEO Reports of Investigation, the only documents which the assessment team will review, federal employees are at the mercy of their own agency’s investigations which may be biased or incomplete. Without the opportunity for discovery, there may be no practical way to withstand summary judgment in cases which should go to hearing.
There has been no rationale given why this experimental program was not issued as a proposed regulation for public comment prior to its implementation.
In the past, the EEOC has also provided for meetings with stakeholders before making substantive changes to its regulations or operating procedures. Besides the controversial nature of the radical changes in the EEOC’s operating procedures, there is a serious legal issue if the experimental program violates the Administrative Procedure Act which provides for the publishing of proposed regulations in the Federal Register followed by a period of public comment before they are issued in final form. The AFGE National Council of EEOC Locals has protested the initiative, arguing that it marks a substantial change in working conditions for the EEOC AJs and a reduction in their authority.
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