[Code of Federal Regulations]

[Title 24, Volume 1]

[Revised as of April 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 24CFR7.36]



[Page 127-128]

 

                 TITLE 24--HOUSING AND URBAN DEVELOPMENT

 

PART 7_EQUAL EMPLOYMENT OPPORTUNITY; POLICY, PROCEDURES AND PROGRAMS

--Table of Contents

 

  Subpart A_Equal Employment Opportunity Without Regard to Race, Color 

       Religion, Sex, National Origin, Age, Disability or Reprisal

 

Sec.  7.36  Hearing.



    (a) Notification of right to request a hearing. The Director of EEO 

will notify the Complainant, the General Counsel, EEO Officer, DCM and 

Complainant's representative, where applicable, of the Complainant's 

right to request an administrative hearing and decision before the EEOC 

or the Department's final decision and the time frames for executing the 

right to request an administrative hearing. Note: Where a mixed case 

complaint is filed, the Complainant has no right to a hearing before an 

EEOC Administrative Judge unless the MSPB has dismissed the mixed case 

complaint or appeal for jurisdictional reasons. (See 29 CFR 

1614.302(2)(b).)

    (b) Requesting a hearing. Where the Complainant has received the 

notice required in Sec.  7.35(c) and 29 CFR 1614.108(f) or at any time 

after 180 days have elapsed from the filing of the complaint, the 

Complainant may request a hearing by submitting a written request for a 

hearing directly to the EEOC office indicated in the Department's 

acknowledgment letter. The Complainant shall send a copy of the request 

for a hearing to the Department's EEO office. Within 15 days of receipt 

of a copy of complainant's request for a hearing, or the docketing 

notice from the EEOC, whichever is earlier, the Director of EEO shall 

provide a copy of the complaint file to EEOC and, if not previously 

provided, to the Complainant, Complainant's representative, if 

applicable, and the appropriate Office of General Counsel.

    (c) EEOC appointment of EEOC Administrative Judge. When a 

Complainant requests a hearing, the EEOC shall appoint an EEOC 

Administrative Judge to conduct a hearing in accordance with this 

section. Upon appointment, the EEOC 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 EEOC Administrative Judge or hearing examiner with appropriate 

security clearances.

    (d) Dismissals. EEOC Administrative Judges may dismiss complaints 

pursuant to 29 CFR 1614.107, on their own initiative, after notice to 

the parties, or upon the Department's motion to dismiss a complaint.

    (e) Offer of resolution. Any time after the filing of the written 

complaint but not later than the date an EEOC Administrative Judge is 

appointed to conduct a hearing, the Department may make an offer of 

resolution to a Complainant who is represented by an attorney.

    (1) Any time after the parties have received notice that an EEOC 

Administrative Judge has been appointed to conduct a hearing, but not 

later than 30 days prior to the hearing, the Department may make an 

offer of resolution to the Complainant, whether represented by an 

attorney or not.

    (2) The offer of resolution shall be in writing and shall include a 

notice explaining the possible consequences of failing to accept the 

offer. The Department's offer, to be effective, must include attorney's 

fees and costs and must specify any non-monetary relief.

    (3) With regard to monetary relief, the Department may make a lump 

sum offer covering all forms of monetary liability, or the Department 

may itemize the amounts and types of monetary relief being offered.

    (4) The Complainant shall have 30 days from receipt of the offer of 

resolution to accept the offer of resolution. If the Complainant fails 

to accept an offer of resolution and the relief awarded in the EEOC 

Administrative Judge's decision, the Department's final decision, or the 

EEOC 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 Department of attorney's 

fees or costs incurred after the expiration of the 30-day acceptance 

period.

    (5) 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, the Department may make other 

offers of resolution and either party may seek to negotiate a settlement 

of the complaint at any time.

    (f) Orders to produce evidence and failure to comply. (1) The 

Complainant, the Department, and any employee of the



[[Page 128]]



Department shall produce such documentary and testimonial evidence as 

the EEOC Administrative Judge deems necessary. The EEOC Administrative 

Judge shall serve all orders to produce evidence on both parties.

    (2) 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 EEOC Administrative Judge, or 

requests for the investigative file, for documents, records, comparative 

data, statistics, affidavits, or the attendance of witness(es), the EEOC 

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) Discovery, conduct and record of hearing--(1) Discovery. The 

EEOC Administrative Judge shall notify the parties of the right to seek 

discovery prior to the hearing and may issue such discovery 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 EEOC 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 EEOC 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. Grounds for objection to producing evidence shall be that the 

information sought by either party is irrelevant, overburdensome, 

repetitious, or privileged.

    (2) Conduct of hearing. The Department shall provide for the 

attendance at a hearing of all employees approved as witnesses by an 

EEOC Administrative Judge. Attendance at hearings will be limited to 

persons determined by the EEOC 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 EEOC 

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 EEOC 

Administrative Judge shall receive into evidence information or 

documents relevant to the complaint. Rules of evidence shall not be 

applied strictly, but the EEOC Administrative Judge shall exclude 

irrelevant or repetitious evidence. The EEOC 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 EEOC Administrative Judge, or who otherwise 

engages in improper conduct.

    (3) Record of hearing. The hearing shall be recorded and the 

Department shall arrange and pay for verbatim transcripts. All documents 

submitted to, and accepted by, the EEOC Administrative Judge at the 

hearing shall be made part of the record of the hearing. If the 

Department submits a document that is accepted, the Department shall 

furnish a copy of the document to the Complainant. If the Complainant 

submits a document that is accepted, the EEOC Administrative Judge shall 

make the document available to the Department representative for 

reproduction.