The EEOC’s Handbook for Administrative Judges (July 1, 2002) (AJ’s Handbook) indicates that for
an AJ to issue a sua sponte determination, he/she must first provide
notice to the parties regarding his/her intent to issue a decision
without a hearing. The notice must: (1) indicate in whose favor summary
judgment is being proposed; (2) identify the applicable legal standards
and burdens of proof with respect to each claim; (3) set forth the legal
standards for issuance of a decision without a hearing; (4) identify the
undisputed material facts which appear to be dispositive of the case;
and (5) direct the parties to cite to specific evidence contained in
the report of investigation which creates a factual dispute regarding
a material issue and to include any relevant documentary evidence or
witness statements, interrogatory answers, admissions, or other supporting
materials from outside the report of investigation, with an explanation of
the relevance of all materials submitted. In the case at hand, however,
we find that the AJ did not follow these appropriate procedures, resulting
depriving the parties of notice of the AJ’s intent and an opportunity to
submit arguments opposing the issuance a decision by summary judgment.
Therefore, we find that the AJ’s decision to enter summary judgment in
favor of the agency without affording the parties the appropriate due
process was improper.
