Panel Discussion on Hearings Case Management Projects Julie Bean, Supervisory Administrative Judge, Birmingham District Office Regina Stephens, Supervisory Administrative Judge, Charlotte District Office Frances del Toro, Supervisory Administrative Judge, Washington Field Office Steve Stromberg, Supervisory Attorney, Office of Federal Operations Joel Cavicchia, Supervisory Attorney, Office of Federal Operations

Case Management Projects The Acting Chair approved five (5) projects for implementation by the Federal Sector Hearings Program. The projects will be discussed in this presentation the way they are implemented by the AJs through their case management practices after case assignment.

Step 1 AJ conducts a basic assessment after reviewing the Report Of Investigation (ROI) The AJ makes sure the complaint is filed in the correct District or Field Office. If the case is in the incorrect office- the case will be transferred to the office with proper jurisdiction.

Step 2 Is the Case appropriate for dismissal under C.F.R. § 1614. 107 and 109? (Procedural Dismissal) -EEOC lacks jurisdiction; -complaint is untimely; -Complaint alleges dissatisfaction with the processing of a previously-filed complaint; -the case is a mixed case complaint; -the complaint is moot or deals with a proposed personnel action; -identical claims are pending or were resolved by the EEOC, the Agency, or in federal district court; -unable to locate Complainant; and -other (ex: failure to state a claim)   The AJ will Issue Notice of Intent to Dismiss and, if appropriate, a Short Order of Dismissal

Step 3 Is the case part of a USPS or Tennessee Valley Authority grievance procedure? If so, the AJ will issue an order of dismissal without prejudice. The Agency will hold the case in abeyance pending the resolution of the grievance. Once the grievance process ends Complainant can request the reinstatement of the hearing request.

Step 4 Is the Case appropriate for the issuance of 15-day Notice of Summary Judgment Before the Initial Conference? Factors to Consider: -Is the record fully developed? -Are there issues of material fact and credibility present? -AJ’s Regulatory authority: Pursuant to 29 C.F.R. § 1614.109(g)(3), AJ can sua sponte issue a decision without a hearing if there are no issues of credibility or material fact present.   - If the case is proper for a 15-day Notice, the AJ issues a Notice of Intent To Issue Summary Judgment. We note that this Notice will be short and will only address the main reasons for the AJ’s determination without reiterating the undisputed facts. - The parties are provided an opportunity to address whether there is additional evidence outside of the ROI in support of their case. The AJ will determine if such information is relevant and material. -If from the parties’ responses it is evident that further development of the record is necessary, the AJ will schedule an Initial Conference (IC) and authorize any necessary discovery. Benefits: In appropriate cases, a 15-day Notice can be issued without holding an Initial Conference and a decision is issued early in the process.

Step 5 Initial Conference and Development of the Record Options: Regular Initial Conference Tailored Initial Conference Tailored IC: the AJ will take a more controlled approach to discovery and exercise more control over the discovery process Option 1: Request for specific documents or information before or during the Initial Conference. Option 2: If limited testimony is necessary the AJ can schedule an Initial Conference with a Court Reporter present. used very sparingly no more than 1-2 witnesses the Initial Conference needs to be held in person or via VTC

Step 6 After the Initial Conference- The AJ can: 1- Issue a 15-day Notice of Summary Judgment 2- Establish regular case processing deadlines 3- AJ Issues a Decision Based on the Evidence Presented at the Tailored Initial Conference Language of the Decision: “After reviewing the entire hearings record in the instant complaint, as well as conducting an Initial Conference with the parties to afford them the opportunity to supplement the record, I find that: (1) further development of the record is unlikely to lead to a finding of discrimination; and (2) preponderant evidence fails to show that Complainant was subjected to discrimination.” -This language was approved by the Chair’s Office as part of Pilot 1. See Dec. 17, 2017 Memo, sec. A(1); 29 CFR § 109 (i) 2017.  

Step 7 Does the case need a hearing? Can the AJ conduct a targeted hearing? Targeted Hearing: -Similar to the management of the IC, the AJ will take a more planned approach. -AJ Decides whose testimony and/or what evidence will be presented at the hearing. The AJ may also limit the scope of the testimony presented. -AJ may issue proposed findings of fact to the parties and allow the parties to oppose before the hearing. -Limited direct and cross examination are allowed.  

Summary Judgment Pilot Project -The project allows AJs to issue summary judgment decisions in appropriate cases by adopting all or in part the arguments set forth in a party’s summary judgment motion. -Presently there are 6 offices participating in the pilot: Charlotte, Washington, D.C., Los Angeles, San Francisco, Miami and Philadelphia. -OFO and OFP worked together on the design and implementation of the pilot project. -There are mechanisms in place so that the cases can be identified by OFO if an appeal is filed.

Summary Judgment Pilot Project Continued -As of August 14, 2018, 385 cases were adjudicated under the project -Of those 385 cases, 72 were appealed (18.7%) -34 cases have been closed. -One (1) case was closed as an administrative closure; one (1) case was closed as deemed improperly included in the pilot (CIA case); and only one (1) case was reversed.

Appeals from AJ Projects   - So far, OFO has only received appeals from AJ Summary Judgment Project cases - Will give expedited consideration, at least initially, to other project cases - OFO will work with and communicate with AJs to make sure these projects are successful  

- Identify a project case Step 1 in OFO Process - Identify a project case - Currently, AJ Summary Project Cases are identified on 1st page of IMS by AJs  

Step 2 in OFO Process - Grievance/TVA cases will initially be held in abeyance by AJ   - OFO will communicate with AJs to determine status of cases at the request of the parties

Step 3 in OFO Process     If Summary Judgment issued based on evidence at tailored initial conference then: - OFO will conduct appropriate review

Step 4 in OFO Process Tailored Hearing - AJs have historically had ability to limit witnesses or testimony - OFO has always allowed AJs discretion to limit hearings to relevant testimony

Summary Judgment Project - OFO has been expediting appeals from these decisions by the AJs - When the facts are adopted by the AJ, these decisions are similar to regular summary judgment decisions

Success of AJ Projects Continuing communication between AJs and OFO to find solutions and increase efficiencies