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A View From The Bench: What Judges wish you knew...

Interview with Judges from the EEOC. Excerpt from 04-20-2021Webinar

Hosted by Chris Templeton and Spectrum EEO

Chris Templeton: Welcome. My name is Chris Templeton, and I will be your moderator for the next hour you're in for a real treat. This is a rare opportunity for EEO investigators to see what happens after an investigative report is submitted and to get important feedback directly from the consumers of your work, the judges. So welcome everybody a few quick ground rules. Number one, please feel free to ask any questions that you have via the Q&A button, which you can see at the bottom of your screen. The one rule that we have is you cannot ask case-specific questions and what I'll be doing is reading those questions. It's too important for me to try and pretend to look at the screen the whole time and not get these questions, so that's why I'll be reading them and I just want to thank you all for being here.


Next, what I'd like to do is introduce our judges for today first is D. Andrew Winston, who has been an administrative judge with the Denver field office of the Equal Employment Opportunity Commission since 2015, judge Winston first joined the EEOC in 2007 and served as a senior trial attorney with the Denver Field Office Legal Unit. Before joining the EEOC Judge Winston was in private practice focusing on labor employment, civil rights, and entertainment law. Our next judge is Jacob Smiles and he's an administrative judge with the Denver Field Office of the US Equal Employment Opportunity Commission as an administrative judge, he presides over the federal sector, employment discrimination complaints before becoming an administrative judge during the summer of 2015, he worked for five years as an attorney for the US Department of Education's Office of Civil Rights in Denver, Colorado. Our third judge is Nancy Weeks.


She's been at the EEOC for 29 years and before that worked for the defendants and employers before becoming an administrative judge, Nancy worked for the EEOC and served as a senior trial attorney with the Denver Field Office Legal Unit. Welcome to all of you. What I want you to know is that I will be addressing them casually as they have agreed to take off their wigs and let me call them Andy, Jake, and Nancy. So I want you to know up front that's how we're going to proceed with this. So to get a better feel for who the judges are. I want to introduce you and by asking each of you the following question, judges, why is this work important to you and let's begin with Andy and thank you for being here.


Jacob Smile: And I'll answer for Andy. This is Jake, Andy has just lost his internet connection he is trying to rejoin and we'll be on in a minute. So perhaps I'll begin.


Chris Templeton: Thank you, that's great.


Jacob Smith: Okay, so why it's important? Our country has a long history of discrimination and when you think of the employment aspect of it, employment is among the most important things in any individual's life. There's family other people have a few other things, whether it's religion or other aspects of their personal life, but beyond that for many people, their job is how they identify themselves. It's where they get their self-esteem and it's incredibly important and when that gets disturbed whether it's through discrimination or any other means it can have a traumatic effect on a person. And so I just think to get to the extent we can eliminate and prevent and educate people about employment discrimination. I think it can have a profound impact on individuals and their self-worth and their ability to provide for their families.


Chris Templeton: Alright I think that's an outstanding answer and thank you very much for getting in quickly, Jake, Nancy, how about you?


Nancy Weeks: Well, I've always had an interest in supporting the underdogs and maybe that's partly because I'm a woman in the field of law and I graduated over 30 years ago, so there were a lot fewer women then. And also in 2007, I adopted a child who happens to be African-American and I think that brought me from the intellectual understanding of discrimination to a much more heartfelt one because for example, we went to spring training in Arizona and I was carrying her. She was two years old and people were giving us dirty looks and I suddenly realized, wow, this is way deeper than I ever imagined and so that sort of informed my practice since then.


Chris Templeton: Wow. Thank you very much I'm assuming we don't have Andy back yet. So let's move on and talk a little bit about the EEO process. Many or most investigators do not have visibility into the EEO process after an investigative report is submitted. Could you both give us a view of what happens after a case is appealed and gets assigned to you? Nancy, do you want to start?


Nancy Weeks: Sure, one thing that may be the investigators don't know, but a lot of EEOC offices have a big backlog. So until recently, if an individual requested a hearing, they would wait up to a year before it got assigned to one of us judges. And then after that, it's like a little mini court process where we have an initial meeting, the parties generally engage in discovery, try to get more information. There's a possibility for summary judgment, settlement and then ultimately a very small number of cases go to a hearing.


Chris Templeton: Jake, would you like to answer the question of, what happens after the cases are appealed?


Jacob Smiles: Sure and so, I think it's interesting too, at the beginning to point out just as often the EEO investigators don't quite know what happens after they complete their investigative summaries. I was realizing this morning, the AJs have no idea what's going on your end, in terms of what pressures you get from the agencies, what resources you have to complete the investigations, how much cooperation you get. And so, I think the lack of knowing what goes on goes both ways in terms of what happens after the investigative report is completed. So many of the cases they receive what's called the final agency decision and we have no involvement with that, but when someone does request a hearing like Nancy said, it sits in a docket for a while and is finally assigned to an administrative judge. And after that, it's very similar to what you would have in federal court, except that it's far less formal. Often the parties are pro se I think we probably are more flexible with deadlines and rules of evidence and that sort of thing, but otherwise, it's like litigation in federal court, except that we have this evidentiary background, the investigative reports that you all complete that are extremely useful in getting started in this process.


Chris Templeton: Thank you. Alright, Andy, would you tell us two things, we'll go back to talking a little bit about why this work is important to you and then from your perspective help people to understand what happens after a case is appealed. And thanks for being here.


D. Andrew Winston: Sure, I had a little bit of a technical glitch, but I got to figure it out. I think what makes this work pretty critical and I think most complainants would agree because most of them, I would say better than 50% of the cases I have the complainants are pro se they represent themselves. So it's an access to justice kind of issue the process is set up where you don't necessarily need a lawyer or a representative to work your way through the process, although that's certainly your right. And I would advise it because it's an adversarial legal process it is a little Byzantine, but it's a fairly quick process, it's a fairly economical process whereas if somebody only had access to federal court, that's an expensive proposition and much tougher to represent yourself in federal court. So for a lot of federal employees, this is their only access to some kind of system to get a review of the situation that's occurred.


So I think that's in my mind the most important thing that makes this work so important in terms of what happens after a complaint is filed and what that process looks like. The nuts and bolts are as Jacob and Nancy described an investigation, which you all do is completed the ROI or the deliverable that report of investigation is given to the complainant and the agency and then the complainant has a choice to make. Do I want a final agency decision, a written decision by the agency that this is what happened in the case, or do I want a live hearing in front of an administrative judge and many complainants choose the live hearing and many of the pro se or self-represented complainants don't know or appreciate what that means that they're going to have to put on a live case with witnesses and exhibits, and they've seen a lot of TVs, but it's a little different when you're doing it yourself?[End of Excerpt]

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