Recently, the MSBA Labor and Employment Law Section sponsored a webinar entitled: Labor & Employment Law: EEOC Administrative Judges Ask the AJS Virtual Forum. The event was a chance for practitioners to hear from the administrative judges on how they handle things in the district and for lawyers to ask questions. The panel was moderated by Acting Chief Judge Stepanie Herrera and involved Baltimore’s Judge Laurance Gallagher, Judge Enechi Modu, Judge Julia Schmid, Cleveland’s Judge Donna Williams-Alexander, Philadelphia’s Judge Natasha Abel, Judge Allyson Jozwik, and Judge Iris Santiago-Flores.
INITIAL STATUS CONFERENCE
Judge Jozwik led off with remarks on the Initial Status Conference, something the judges in the district started doing five or six years ago. Judge Jozwik says she likes to use the ISC as a screening process. The primary goal is to determine the issues in the case, and it’s a chance for everyone to get a sense of the parties. Judge Jozwik said that if she doesn’t think the complainant can make a case for discrimination, she will say so.
Judge Jozwik said the complainant does not need to present. She said she would consider informal amendments if they make sense for the case. But anything more complex may require a formal motion to amend. She discourages the parties from filing multiple motions at the start of the case.
TIPS: Judge Herrera urged the parties to have a conversation about settlement before the ISC.
Judge Jozwik said the parties should be familiar with the case by the time of the ISO.
NON-DISPOSITIVE MOTIONS-MOTION TO COMPEL
Judge Santiago-Flores said the first thing she asks is if the parties have tried to resolve the issues on their own. The motions should be short and straight to the point. Counsel should identify the discovery that is in dispute and detail what is being sought. Judge Santiago-Flores said she tries to dissuade the parties from filing these, and she will sometimes rule without getting a response from opposing counsel.
MOTION FOR SANCTIONS
Judge Santiago-Flores said there is a lot of case law here, and administrative judges do have discretion for sanctions. The judge must give the offending party notice and the opportunity to take action to cure the matter. Default judgment is the most severe of the penalties.
Judge Abel offered some straightforward tips for practitioners. With regard to the Statement of Facts, make it read like a story. And make sure to cite to the record. In oppositions, make sure to oppose each statement of fact that you disagree with and explain why it is disputed. The Agency should always reply to these motions. Judge Abel said she gets a lot of motions where the Agency doesn’t respond. Finally, don’t be overly long.
Judge Gallagher shared his 11 pointers for settlement by first saying he likes conciliation:
- The mood must be right; no bickering
- Both sides should have knowledge of the case
- The issues should be closed separately
- Visual aids welcome
- Both sides should be enthusiastic
- Hold off on caucusing. Things should be adversarial
- Offer a range of numbers
- Don’t dominate the negotiations
- This is a mini-trial
- Things should be vetted up and down the settlement chain
- Exit the negotiation with an exit clause. Don’t let the client be talked out of the agreement by someone else
VIRTUAL HEARINGS & EXHIBITS
Judge Herrera said the court has had great success with virtual hearings, and the practice will continue, at least for now. Some judges will offer guidelines for virtual hearings and will do test runs. She urged everyone to appear in court from a private and quiet place. Remind clients this is a legal proceeding. Judges prefer exhibits to be electronic.