[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1614.109]

[Page 264-266]
 
                             TITLE 29--LABOR
 
                               COMMISSION
 
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY--Table of Contents
 
    Subpart A--Agency Program To Promote Equal Employment Opportunity
 
Sec. 1614.109  Hearings.

    (a) When a complainant requests a hearing, the Commission shall 
appoint an administrative judge to conduct a hearing in accordance with 
this section. Upon appointment, the administrative judge shall assume 
full responsibility for the adjudication of the complaint, including 
overseeing the development of the record. Any hearing will be conducted 
by an administrative judge or hearing examiner with appropriate security 
clearances.
    (b) Dismissals. Administrative judges may dismiss complaints 
pursuant to Sec. 1614.107, on their own initiative, after notice to the 
parties, or upon an agency's motion to dismiss a complaint.
    (c) Offer of resolution. (1) Any time after the filing of the 
written complaint but not later than the date an administrative judge is 
appointed to conduct a hearing, the agency may make an offer of 
resolution to a complainant who is represented by an attorney.
    (2) Any time after the parties have received notice that an 
administrative judge has been appointed to conduct a hearing, but not 
later than 30 days prior to the hearing, the agency may make an offer of 
resolution to the complainant, whether represented by an attorney or 
not.
    (3) The offer of resolution shall be in writing and shall include a 
notice explaining the possible consequences of failing to accept the 
offer. The agency's offer, to be effective, must include attorney's fees 
and costs and must specify any non-monetary relief. With regard to 
monetary relief, an agency may make a lump sum offer covering all forms 
of monetary liability, or it may itemize the amounts and types of 
monetary relief being offered. The complainant shall have 30 days from 
receipt of the offer of resolution to accept it. If the complainant 
fails to accept an offer of resolution and the relief awarded in the 
administrative judge's decision, the agency's final decision, or the 
Commission decision on appeal is not more favorable than the offer, 
then, except where the interest of justice would not be served, the 
complainant shall not receive payment from the agency of attorney's fees 
or costs incurred after the expiration of the 30-day acceptance period. 
An acceptance of an offer must be in writing and will be timely if 
postmarked or received within the 30-day period. Where a complainant 
fails to accept an offer of resolution, an agency may make other offers 
of resolution and either party may seek to negotiate a settlement of the 
complaint at any time.
    (d) Discovery. The administrative judge shall notify the parties of 
the right to seek discovery prior to the hearing and may issue such 
discovery

[[Page 265]]

orders as are appropriate. Unless the parties agree in writing 
concerning the methods and scope of discovery, the party seeking 
discovery shall request authorization from the administrative judge 
prior to commencing discovery. Both parties are entitled to reasonable 
development of evidence on matters relevant to the issues raised in the 
complaint, but the administrative judge may limit the quantity and 
timing of discovery. Evidence may be developed through interrogatories, 
depositions, and requests for admissions, stipulations or production of 
documents. It shall be grounds for objection to producing evidence that 
the information sought by either party is irrelevant, overburdensome, 
repetitious, or privileged.
    (e) Conduct of hearing. Agencies shall provide for the attendance at 
a hearing of all employees approved as witnesses by an administrative 
judge. Attendance at hearings will be limited to persons determined by 
the administrative judge to have direct knowledge relating to the 
complaint. Hearings are part of the investigative process and are thus 
closed to the public. The administrative judge shall have the power to 
regulate the conduct of a hearing, limit the number of witnesses where 
testimony would be repetitious, and exclude any person from the hearing 
for contumacious conduct or misbehavior that obstructs the hearing. The 
administrative judge shall receive into evidence information or 
documents relevant to the complaint. Rules of evidence shall not be 
applied strictly, but the administrative judge shall exclude irrelevant 
or repetitious evidence. The administrative judge or the Commission may 
refer to the Disciplinary Committee of the appropriate Bar Association 
any attorney or, upon reasonable notice and an opportunity to be heard, 
suspend or disqualify from representing complainants or agencies in EEOC 
hearings any representative who refuses to follow the orders of an 
administrative judge, or who otherwise engages in improper conduct.
    (f) Procedures. (1) The complainant, an agency, and any employee of 
a Federal agency shall produce such documentary and testimonial evidence 
as the administrative judge deems necessary. The administrative judge 
shall serve all orders to produce evidence on both parties.
    (2) Administrative judges are authorized to administer oaths. 
Statements of witnesses shall be made under oath or affirmation or, 
alternatively, by written statement under penalty of perjury.
    (3) When the complainant, or the agency against which a complaint is 
filed, or its employees fail without good cause shown to respond fully 
and in timely fashion to an order of an administrative judge, or 
requests for the investigative file, for documents, records, comparative 
data, statistics, affidavits, or the attendance of witness(es), the 
administrative judge shall, in appropriate circumstances:
    (i) 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;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to produce 
the requested information or witness;
    (iv) Issue a decision fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as appropriate.
    (g) Decisions without hearing. (1) If a party believes that some or 
all material facts are not in genuine dispute and there is no genuine 
issue as to credibility, the party may, at least 15 days prior to the 
date of the hearing or at such earlier time as required by the 
administrative judge, file a statement with the administrative judge 
prior to the hearing setting forth the fact or facts and referring to 
the parts of the record relied on to support the statement. The 
statement must demonstrate that there is no genuine issue as to any such 
material fact. The party shall serve the statement on the opposing 
party.
    (2) The opposing party may file an opposition within 15 days of 
receipt of the statement in paragraph (d)(1) of this section. The 
opposition may refer to the record in the case to rebut the

[[Page 266]]

statement that a fact is not in dispute or may file an affidavit stating 
that the party cannot, for reasons stated, present facts to oppose the 
request. After considering the submissions, the administrative judge may 
order that discovery be permitted on the fact or facts involved, limit 
the hearing to the issues remaining in dispute, issue a decision without 
a hearing or make such other ruling as is appropriate.
    (3) If the administrative judge determines upon his or her own 
initiative that some or all facts are not in genuine dispute, he or she 
may, after giving notice to the parties and providing them an 
opportunity to respond in writing within 15 calendar days, issue an 
order limiting the scope of the hearing or issue a decision without 
holding a hearing.
    (h) Record of hearing. The hearing shall be recorded and the agency 
shall arrange and pay for verbatim transcripts. All documents submitted 
to, and accepted by, the administrative judge at the hearing shall be 
made part of the record of the hearing. If the agency submits a document 
that is accepted, it shall furnish a copy of the document to the 
complainant. If the complainant submits a document that is accepted, the 
administrative judge shall make the document available to the agency 
representative for reproduction.
    (i) Decisions by administrative judges. Unless the administrative 
judge makes a written determination that good cause exists for extending 
the time for issuing a decision, an administrative judge shall issue a 
decision on the complaint, and shall order appropriate remedies and 
relief where discrimination is found, within 180 days of receipt by the 
administrative judge of the complaint file from the agency. The 
administrative judge shall send copies of the hearing record, including 
the transcript, and the decision to the parties. If an agency does not 
issue a final order within 40 days of receipt of the administrative 
judge's decision in accordance with 1614.110, then the decision of the 
administrative judge shall become the final action of the agency.

[57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37657, July 12, 1999]