Scheduling Order

Since 2014 or so, EEOC has been conducting pilot programs all over the country in order to stream line the process.

As result, the Acknowledgment And Order is no longer issued as the first notice after a hearing is requested.  Instead, an Acknowledgment and Scheduling Order or something to that affect is issued.  This will be the first document you will received from the EEOC, issued from the Administrative Judge (AJ) to whom your case is assigned

(If you did not receive the Report of Investigation (ROI) from the Agency when you received Scheduling Order from EEOC, you may consider filing a Motion for a Default Judgment Against the Agency for Failure to Produce ROI.)

You must read the Scheduling Order very carefully and mark in your calendar all the due dates specified therein.

➤ The following will be typically scheduled, although each District Office may have different scheduling:

1. You must designate your representative, if you have one.  Agency will also designate its representative also.  Use the designation form that will be issued along with the Scheduling Order.

2. Initial Teleconference with AJ, Agency attorney, you, and your representative (if any) will be scheduled.  You must notify the agency attorney of your telephone number prior to the teleconference.  Typically, Agency will provide a call-in conference number for you to use.  No one-way communication or ex parte communication is allowed such as you communicating with AJ without the agency attorney's presence or vice versa.

3. Your settlement demand should be forwarded to the agency attorney prior to the Initial Teleconference with AJ.

4. You must be prepared to discuss the following at the Initial Teleconference:

• Issues pending before AJ for adjudication.  Know the accepted issues, which were listed in the EEO director's letter to you issued some time within one or two months of your filing a formal or amended complaint.  The notice of acceptance or partial dismissal of your allegations is always found in the ROI.  Know your allegations that are accepted by the agency EEO office.  Only the accepted issues will be adjudicated by AJ.  Damages can be derived only from the accepted issues.
• Discovery.  You must argue why you need to engage in the discovery.  Discovery consists of sending the opposing party the Interrogatories, Request for Production of Documents, and Request for Admissions.  If desired, you may also send the Notice of Deposition.
• Settlement.  You must report to AJ whether or not a discussion on possible settlement took placed with the agency attorney and what the outcome was.
• Whether the accepted issues in the complaint needed to be amended or whether you plan to file a motion to add more recent issues or to reinstate the issues dismissed by the EEO Director or the equivalent thereof (as notified in the acceptance or partial dismissal letter)..  See amending the complaint for more.
• Due dates and the deadlines.  AJ will ask the parties to check calendar for availability for hearing and pre-hearing and due dates for filing certain motions or responding to such motions.  Pre-hearing and hearing may not even be scheduled at this time.
• Usually, within 20 days of the Initial Conference, parties must engage in the discovery.  That is, the interrogatories, request for production of documents, and request for admissions must be sent to the opposing party within 20 days of the Initial Conference.
• The discovery period will be usually set for at least 60 days--to start from the date of initiating the discovery.
• The date to end the discovery.  All discovery, including depositions and supplemental discovery requests and responses, must be filed or conducted by that date.
• If you want to depose the management, you should send the notice of deposition early on in the discovery period.
• Ideally, it is good to conduct depositions after you have received the responses from the opposing party in response to your discovery requests.  
• Beware that the agency attorneys would not cooperate with you well enough to respond to your discovery requests and to provide the documents you requested.  It takes several tug and pull to get most of what you wanted, including filing a motion to compel.  Scheduling a deposition (to depose the management) could well turn out to be another tug of war.  
• If you must, you may file a motion to extend the discovery period in order to incorporate these tug
  of wars.  If the agency agrees to the extension, AJ usually has no choice but to grant the motion.  You are obligated to propose the motion to the agency first before sending it to the judge and ascertain if the agency would agree to your motion.  Agency may also be interested in conducting a discovery on you, including a deposition, so the attorney may be willing to agree with you on extending the discovery period.
• Deadline for "dispositive" motions such as Motion for a Decision Without Hearing (aka Motion for Summary Judgment or MSJ). MSJ is to be filed within 15 days of the closure of discovery. The deadline for responding to MSJ too is usually within 15 days of your receipt of agency's MSJ.
• Dates for the pre-hearing submission, pre-hearing conference, and the hearing itself.

I have heard horror stories where AJ wants to dismiss the case at the Initial Teleconference based on what you said or what AJ sees in the ROI.  It is almost impossible to predict the outcome of the Initial Conference.  Do not feel pressure to admit to something important without taking some time to think about it.

AJ should issue a written summary of the Initial Conference and may invite you to correct it, if there are errors.  Read the summary very carefully, because what is written there will become binding and be enforced later on during the hearing process.