Tips from the Trenches

The Hearing is Weeks Away and NOW the Complainant Wants to Amend?!

Apr 30, 2019 3:40:55 PM / by Julie Rook Gold, Esq.

The complainant requested a hearing and the parties have already engaged in discovery. The Administrative Judge has set a hearing date, which is closing in. With only weeks -- or even days -- to go before the hearing, the complainant submits a motion to amend. Is this proper? How should the agency respond?

The EEOC allows complainants to amend complaints with "issues or claims like or related to those raised in the complaint," under 29 CFR 1614.106(d). There is no timeframe by which amendments are no longer accepted during the hearing process. Rather, whether an amendment is appropriate immediately before the hearing depends on the type of amendment sought by the complainant.

A request to amend to include an additional basis of discrimination, for example, will likely be considered proper by an Administrative Judge. The EEOC will allow a complainant to amend her complaint at any time, including at hearing, to add or delete bases without changing the identity of the claim. See, for example, Emma B. v. Dep’t of Transp., EEOC App. No. 0120161912 (July 28, 2016). The EEOC reasons that selecting a basis of discrimination -- whether sex, race, or reprisal -- merely attaches a legal conclusion to the same set of facts. Thurman L. v. Dep’t of Commerce, EEOC App. No. 0120172169 (Aug. 30, 2017).

In contrast, whether an amendment to include a new claim is proper will depend on the substance of the complainant’s allegation. An Administrative Judge is more likely to allow an amendment that asserts a new incident that is part of an existing claim. For example, if the complaint already includes an allegation that a supervisor sexually harassed the complainant, the complainant may be able to amend her complaint with a new incident of sexual harassment by the same supervisor.

If the hearing is scheduled to start soon, an agency will have more luck precluding an amendment of a new, separate claim even if it is like or related to the pending complaint. Likely there has been no investigation or discovery on the new claim. An agency would likely be would prejudice by the belated amendment, as there would be no time to seek evidence to rebut the complainant’s new allegation. Even if the Administrative Judge grants a new discovery period related to this claim, doing so would harm the agency by either requiring the rescheduling of the hearing and unduly delaying the process, or requiring it to prepare for hearing while simultaneously conducting additional discovery. Thus, an agency would have firmer ground to oppose such a request.

Receiving a request to amend a complaint weeks before the hearing can feel stressful and chaotic. However, such a motion may be appropriate depending on the type of request. The agency should assess the type of request submitted by the complainant and whether the request would prejudice the agency or unduly delay the process.

Topics: federal hr & eeo law training, hearing, amend

Julie Rook Gold, Esq.

Written by Julie Rook Gold, Esq.

is counsel and associate attorney with Gilbert Employment Law and litigates all phases of federal sector employment discrimination complaints before the Equal Employment Opportunity Commission and appeals of disciplinary actions and whistleblower retaliation claims before the Merit Systems Protection Board. These complaints and appeals include claims of disability discrimination, removals, non-selections, religious discrimination, retaliation, harassment, whistleblower retaliation, and age discrimination. Ms. Gold prepares cases for administrative hearings before the EEOC and MSPB by drafting and responding to written discovery, conducting and defending depositions, and preparing witnesses for deposition. She represents the USDA Forest Service and USDA Food Safety and Inspection Service, and complainants and appellants at administrative hearings and examines and cross-examines witnesses during these hearings. Ms. Gold prepares settlement analyses in both EEOC and MSPB cases, participates in discussions with clients concerning legal analysis and resolution, negotiates settlement terms, drafts settlement agreements, and represents clients at settlement conferences. She served as the lead attorney on a contract with the Federal Election Commission (FEC) and conducted legal sufficiency review of Final Agency Decisions issued by the FEC.

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