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The leader of a federal employee anti-discrimination group recently filed a $900,000 lawsuit against the Equal Opportunity Employment Commission in federal court, alleging the agency allows biased judges to preside over hearings.

Sam Wright Jr., the president of Federal Employees Against Discrimination and a Transportation Department employee, announced Tuesday that he had lodged a complaint against the EEOC on behalf of his anti-discrimination organization because he believes the agency systematically fails to employ independent judges, in violation of the 1964 Civil Rights Act, Title VII and the 1946 Administrative Procedures Act. Wright said that neither he nor his advocacy group have sued the EEOC before.

A lawyer at EEOC said the agency follows the law in assigning judges to preside over hearings.

The EEOC's complaint process impedes, rather than advances, the goal of eliminating discrimination in the federal government, according to Wright. He said he chose to file suit in the U.S. District Court for D.C. on April 4 because he believes that broad reforms the agency is considering will not address a fundamental problem with the judges who run hearings.

Wright's suit asks for $900,000 in damages and a temporary injunction against EEOC proceedings that would last until the case is decided. EEOC spokesman David Grinberg declined to comment on Wright's lawsuit.

Under the Administrative Procedures Act, the EEOC is required to assign administrative law judges to preside over hearings, Wright said. These judges must go through a certification process at the Office of Personnel Management and do not have to answer to the EEOC, according to the law.

Wright's suit alleges that the EEOC circumvents this requirement, in violation of Title VII of the Civil Rights Act, which requires the agency to adhere to the Administrative Procedures Act. Rather than use certified administrative law judges, the EEOC allows attorney examiners to decide cases, he alleged.

The EEOC created an attorney examiner position, which OPM certified, Wright said. But the agency did not tell OPM that the attorney examiners would act as judges during hearings, he claimed. EEOC hires attorneys to fill examiner positions and then assigns them as judges, the suit said.

Wright alleged that as judges, the attorney examiners are inherently biased because they are directly accountable to the EEOC and are subject to performance evaluations conducted by the agency. In contrast, administrative law judges are independent of the agency and hold tenures equivalent to those of federal judges, he explained.

In addition, the EEOC employs private attorneys to act as judges at some hearings, Wright said, creating a similar problem of bias. He said he believes the EEOC purposely hires these, and the attorney examiners, to maintain control over judges and push them to make decisions in favor of federal agencies.

The EEOC lawyer said the agency does employ attorney examiners and allows them to preside over hearings, but added that this practice does not violate any requirements under the Administrative Procedures Act or the 1972 Civil Rights Act. The Merit Systems Protection Board also uses attorney examiners to adjudicate hearings, he noted.

There are some instances where the EEOC is required by statute to use certified administrative law judges, he explained, and in those cases, the agency complies. For instance, the EEOC uses administrative law judges in hearings involving potential 1991 Civil Rights Act violations.

The EEOC employs private attorneys to serve as judges, but only in discrimination cases brought by EEOC employees themselves, in the interest of avoiding a conflict of interest, the lawyer said. The agency would not want its own lawyers adjudicating cases involving its employees, he said.

Wright claimed that the agency's stance on the use of administrative law judges indicates that the commission is not serious about enforcing anti-discrimination laws. "The EEOC does none of what Congress has mandated it to do," he said. "It's time for the EEOC to become accountable."

COMMENTS

• EEOC sent letter to sue but checked box stateing the company I am fighting may and may not be at fault.So its up to me to sue, my lawyer did nothing although I told her to go ahead and start a suit, now I want to get a new lawyer and sent a certified letter to EEOC for my files about a month ago/ I called the EEOC person that I was dealing with and she said yes got your letter asking for your files ( which she had to admit since I got my certified receipt back so I know when and who signed)Now the EEOC is saying we can not find your files its been almost a mont time is running out they are running me around and I know it. What should I do??? Signor Posted March 9, 2008 10:31 AM
• First of all I'd like to say that I have engaged in protected activity against my employer for myself and my son. I am not an attorney however I have tried to help my son based on EEOC law. What the Denver District EEOC Office has done on more than one occasion is ship certain individuals cases to another state, for instance, my son (Claudio Forde) and my case were shipped to the San Francisco EEOC Office where an administrative judge (NOT ALJ) issued decisions on both of our cases, which I clearly protested, because I believe it was a "conflict of interest." Also the AJ's decision did not address the issue of the case and it looks as though it may have been written by the someone else. The AJ did not reference Commission Law. Another employee of the Post Office also filed an EEO complaint and she requested a FAD from the AGency which she appealed. She received a decision within 6 weeks from the OFO affirming the AGency's decision. Before she could request reconsideration her file was sent to the San Francisco EEOC Office where another AJ (NOT ALJ) issued a decision in favor of the AGency when it shold not have been sent to a local commission office because it had already been decided by the OFO. I am fully aware also that this individual, my son and I have written the OFO about what appears to be unethical conduct by this AJ. We have never received a response however every time I file a complaint, my complaints are sent out of state instead of being decided by one of the denver EEOC judges. I would like to file a law suit against these judges because there is something very wrong. I will be able to supply much more info should an attorney or a Civil Rights Advocate wishes to help. I may be reached at 720 277 7912. Thanks I am thinking about filing a complaint with the Bar or Disciplinary Counsel. I think I would have to name every overseeing judge in order to show unethical conduct, bias, discrimination towards certain individuals and decisions that do not address the original issue. Sharon Forde Posted September 30, 2007 1:59 AM
• I work with administrative law judges in the Social Security Administration, and have done so for the last 14 years. I am an attorney and have appeared before state court judges. Every person on this earth has a bias. Whether you call the person an attorney, a district court judge, an administrative law judge, or a federal Judge, he or she will still come with all the biases --good and bad--of any human being. It would be odd if someone didn’t. The only way to avoid a judge’s built in “bias” is to begin correcting him/her when s/he makes a biased finding. Does anyone believe that bias can be completely eliminated? I don’t think so. I think it can be tempered by training and learning. Mr. Wright thinks that having certified administrative law judges, rather than attorney examiners, adjudicating EEO complaints will eliminate the bias. If he wants to see unfairness and discrimination at its best, Mr. Wright should look at the Social Security Administration, and the decisions issued by its administrative law judges. It is a long story, tedious at best, but those of us who are in the business of helping new administrative law judges learn the rules of their trade (and avoid their own biases that go against agency policy) know that the only way an administrative law judge, and perhaps any judge, learns anything, is by remand from a higher authority. But not just any higher authority--a remand that comes in the public arena from a higher-ranking judge is best. In our case, a remand from the USDC has greater weight than a remand from the Appeals Council (within our own agency). Kathleen DeWeese Posted August 11, 2003 6:47 PM