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Agency Provided Untimely FAD
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egawrons View Drop Down
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Joined: 11 Jun 2010
Posts: 13 		Post Options Post Options   Quote egawrons Quote  Post ReplyReply Direct Link To This Post Topic: Agency Provided Untimely FAD
    Posted: 11 Jun 2010 at 11:48am
I filed a timely EEO complaint based on age and race.  Went through investigation, request for AJ hearing, and discovery during which time I had an representative (not an attorney).  Going with this rep was a mistake, did a poor job of discovery mainly because everything was reviewed and prepared with little time devoted to it and at the last minute.  It became obvious to me my rep wasn't worth his fee or the additional fees he wanted to represent me at the hearing.  So I fired the rep and withdrew my request for a hearing prior to the formal hearing.  The AJ informed the Agency on August 31st, 2009  to take final action by issuing a final decision in accordance with 29 CFR 164.110(b) - within 60 calendar days.   I hear nothing form the Agency until June 2, 2010 when they finally sent to me the FAD.  Of course the FAD found no discrimination.
 
Obviously the Agency violated the statutory 60 day requirement - took them more like 300 days to issue the FAD.  What benefit can I get out of this untimely processing in violation of the CFR by the Agency?  Do I file some kind of untimely processing motion?  To whom? What penalty or action against the Agency do I ask for?  How do I do it?  Any sample formates?  I intend to handle everything myself up to the point of civil court so any experience, advice, instruction or references would be deeply appreciated. 
 
I do realize I have 30 days from June 2 to file a request for appeal. 
 
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Break Heart View Drop Down
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Posts: 253 		Post Options Post Options   Quote Break Heart Quote  Post ReplyReply Direct Link To This Post Posted: 11 Jun 2010 at 8:21pm
My agency never issued FAD to me. 

Here are some cases. 1.       www.eeoc.gov/decisions/01970082.txt - 14k - 2009-10-20 -

 

2.            www.eeoc.gov/decisions/01973595.txt - 11k - 2009-10-20 -

3.       www.eeoc.gov/decisions/0120060638.txt - 17k - 2009-10-20 - Cached

 

4.       www.eeoc.gov/decisions/01970636.txt - 13k - 2009-10-20 - Cached

Good Luck!
Mystery
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frankgonzalez View Drop Down
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Posts: 424 		Post Options Post Options   Quote frankgonzalez Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 2010 at 8:56am
You will have an uphill battle as you withdrew from the hearing.  
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rabbitdog99 View Drop Down
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Posts: 36 		Post Options Post Options   Quote rabbitdog99 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jun 2010 at 12:00pm

I agree with frankgonzalez, it will be uphill to get a hearing now since you already went through discovery and withdrew from the hearing.  You probably should have requested an EEOC decision without a hearing if you didn't want to go to a hearing.  Anyway since the agency issued the FAD it's probably too late to ask for the hearing again.  You might give it a try; they might give it to you but with no additional discovery.  I think your only hope now would be civil action in Federal Court.  My guess is you would want a Lawyer to help you through that.  Keep in mind that if you go about trying to get an EEOC hearing and not get it, you will more than likely run out of your time to file in Federal Court.      I'm not a lawyer and find that I know less and less every day, so don't take any I say as worth anything.
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egawrons View Drop Down
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Posts: 13 		Post Options Post Options   Quote egawrons Quote  Post ReplyReply Direct Link To This Post Posted: 13 Jun 2010 at 5:52pm
I do realize that I withdrew from the AJ hearing and I do not want to try for another AJ hearing.  I requested the FAD so I could appeal it to the EEOC.  I withdrew from the hearing because the representative I hired did such a poor job in discovery and case preparation there was no chance the AJ hearing would have been favorable to me.   Better chance at an EEOC appeal of the FAD without an unfavorable AJ decision.
 
My question is when I withdrew from the hearing the AJ informed the Agency on August 31st, 2009  to take final action by issuing a final decision in accordance with 29 CFR 164.110(b) - within 60 calendar days.   Well it took the Agency 300 days to issue the FAD  which is in violation of the CFR.  If I am late in any deadlines my case is dismissed.  Is there any penality to the Agency when they miss the 60 day deadline to issue a FAD?   Can I get any benefit out of the Agency taking 300 days instead of 60 days to issue the FAD?  Or do the timelines only apply to me and the Agency can do whatever it wishes?
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Back4More View Drop Down
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Posts: 190 		Post Options Post Options   Quote Back4More Quote  Post ReplyReply Direct Link To This Post Posted: 13 Jun 2010 at 6:09pm
Originally posted by egawrons

Can I get any benefit out of the Agency taking 300 days instead of 60 days to issue the FAD?  Or do the timelines only apply to me and the Agency can do whatever it wishes?
I think you answered your own question.  The best you will get is an adverse inference (EEOC considers the Agency's tardiness in their decision).  Don't think that means much.  In the past, the EEOC has been pretty pro-Agency.  Now that there has been a changing of the guard at the EEOC, it will be interesting to see if the decisions will be more in line with the law.
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Break Heart View Drop Down
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Posts: 253 		Post Options Post Options   Quote Break Heart Quote  Post ReplyReply Direct Link To This Post Posted: 13 Jun 2010 at 8:16pm
Why do you go ahead appeal? For me, I withdrew my EEOC Hearing due to family members fear. Also, I could not find out anybody as my good representative who can exactly translate my first language slang  into exact English meanings. You know what I did? After several times I asked agency to make  FAD without result, I filed OFO appeal. I even got EEOC OFO granted extension time-30days. Then, Agency started inducing me to settle in total about 7 times....

Why do you send one e-mail to EEOC online customer service, they may give you some help-so call procedure.

Good luck.


Edited by Break Heart - 13 Jun 2010 at 8:18pm
Mystery
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egawrons View Drop Down
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Posts: 13 		Post Options Post Options   Quote egawrons Quote  Post ReplyReply Direct Link To This Post Posted: 15 Jun 2010 at 6:14am
I will be filing an appeal with EEO OFO.  Was just trying to check out any penality to the Agency taking over 300 days to issue a FAD instead of the 60 days allowed by law.  It appears EEOC FAD deadlines really don't apply to the Agency.  I will mention the very late FAD in my appeal.  Thank you for everyone's input.
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Inquire View Drop Down
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Posts: 603 		Post Options Post Options   Quote Inquire Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 2010 at 12:01pm
After the agency was late you should have filed a motion for a default judgment against the agency for failing to issue a fad
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egawrons View Drop Down
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Posts: 13 		Post Options Post Options   Quote egawrons Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 2010 at 1:27pm
"After the agency was late you should have filed a motion for a default judgment against the agency for failing to issue a fad"
 
The Agency was 240 days late in providing the FAD.  Can I file a motion for a default judgement now since it was provided so late or must it only be filed before the FAD is issued - even if it is issued 240 days late?   The law states the FAD must be issued within 60 days after requested - isn't issuing it after 300 days still violate the law and at what penalty to the Agency?  If a motion can still be filed, where do I file it and with who?  Any information and would be appreciated and the more detail the better.
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