This afternoon the EEOC issued a 38-page General Prehearing Order. In this Order, the EEOC sets forth the standards and burdens and clarifies certain procedural and substantive issues that were raised during the pre-hearing conference process.
While we are still continuing to review the Order in detail, our attorneys are very happy to see that many of our significant arguments prevailed over the Postal Service, including:
- The Postal Service will not be permitted to use documents it failed to produce in response to the 2019 Case Management Order. Significantly, the Postal Service failed to include any individual evidence for claimants in 2019.
- The Postal Service will not be permitted to use witnesses they failed to explicitly identify in the Prehearing Statement.
- A claimant’s modified position, not pre-injury position, is used as a basis for the essential function analysis.
- Postal Service will not be permitted to use documents it failed to produce in response to the 2019 Case Management Order to impeach witnesses at hearings. This means, they cannot try to show a witness a brand new document in an effort to show that something they said is not true.
With this General Pre-Hearing Order, the Administrative Judges also simultaneously appealed the Order. While this is not a super common occurrence, we believe this was done based on the objections raised during the pre-hearing conferences by the Postal Service’s attorneys. The Postal Service repeatedly represented that they would appeal the decisions on issues like whether they could bring in new documents not previously produced in 2019. Now, by the time hearings begin again, the Office of Federal Operations (OFO) would have already heard and decided the appeal, so the Postal Service would not be able to make those same arguments and further delay the process.
That means, right now, everything is stayed pending that appeal. We understand this may be frustrating, but we believe this Order is a significant step towards the overall hearings process! We also believe that having OFO’s confirmation (or clarification) on the rulings is better to have now, than after the hearings which could potentially result in having to re-do hearings.
Over the next few months, we will work through the hearing and of course keep you all updated as soon as we have a determination. At that time, we can better explain the next steps.
We thank you all for your continued patience as we continue our path to justice!