The Texas State Office of Administrative Hearings provides a critical function to our state. The SOAH provides administrative judges in cases involving certifications and licenses for doctors, police officers and others. It is essential that the SOAH judges appear to be impartial for the process to work. But, recently, the SOAH process broke down completely. The Texas Medical Board licenses physicians in Texas. The TMB brought a case against a Dr. Robert Van Boven. The Administrative Judge, Hunter Burkhalter, found in favor of the doctor. It does not occur often that TMB loses, but this time, they did.

The accusations concerned three patients who accused Dr. Van Boven of improper touching. Judge Burkhalter found the evidence lacking. The TMB could have appealed, or it could accept the decision. TMB chose to accept the decision. But, while accepting the decision, the TMB chair read a statement stating that different judge might have reached a different result. Duh. That seems obvious. Different judges will indeed reach different results in close cases. The chair probably meant he believed Judge Burkhalter had a bias. And as part of his statement, the chair, Sharif Zaafran, questioned Judge Burkhalter’s impartiality.

But, the TMB was not satisfied. It sent a letter to SOAH accusing Judge Burkhalter of bias and questioned his ability to decide cases involving sexual misconduct impartially. The letter cited an overheard conversation between Judge Burkhalter during an unrelated hearing that super model Kate Upton was attractive. TMB argued in the letter that Judge Burkhalter’s decision in the Van Boven case was wrong, that it disregard certain evidence, even though they chose not to appeal the decision.

The CEO of TMB asked to meet with the Chief Administrative Judge of SOAH. The TMB and the SOAH are both state agencies. The meeting took place. Soon after, the Chief Judge of SOAH issued a letter to Judge Burkhalter reciting the concerns expressed by the head of TMB. In short, the SOAH questioned the judge’s ability and impartiality, even though the TMB chose not to appeal his decision.

Judge Burkhalter was fired soon after. See Austin Chronicle report. So much for an independent judiciary.

 

For federal employees, they have a different process to trial. A federal employee can file a verbal complaint with his/her local EEO office. When that process is completed, the federal employee then has 45 days to submit a written complaint. The Agency then conducts an investigation. The Agency does not come to any conclusions about whether discrimination occurred. But, the EEO investigator does gather statements from all (or most of) the pertinent witnesses. When that process is completed, the federal employee can file suit in U.S. district court, or request a less formal hearing in front of an EEOC Administrative Law judge. In theory, the EEOC judge process should be quicker and cheaper than U.S. district court. But, the EEOC process is not quick anymore.

According to statistics provided by the EEOC, for the time period FY 2009-FY 2017, the total time of the EEOC process has increased every year. The numbers below apply to the San Antonio Field Office. The Texas region has been short of a few judges for several years now. But, much of the country is also short of Administrative Judges. Median processing time refers to one-half being greater than that number and one-half being smaller than that number. The first category addresses those rare cases in which a federal employee reaches the point of having a trial in front of an EEOC judge and wins.

Written Decision/Finding of Discrimination

  • 2009: 5 cases/ 285 days median processing time
  • 2010: 2/626 days
  • 2011: 0
  • 2012: 0
  • 2013: 1/612 days
  • 2014: 0
  • 2015: 1/1128
  • 2016: 0
  • 2017: 0

The next category applies to the majority of cases. These are the federal EEOC complaints that have proceeded to a trial in front of an EEOC Administrative Judge in which the employee lost.

  • 2009: 68 cases/296 days median processing time
  • 2010: 4/227
  • 2011: 27/199
  • 2012: 28/221
  • 2013: 14/332
  • 2014: 6/279
  • 2015: 1/146
  • 2016: 2/1644
  • 2017: 3/1181

So, the median processing time for employees who lose their trial in front of an EEOC Administrative Judge has increased from 227 days in 2010 to 1181 days in 2017. And, since 2013, there has been significant drop-off in the number of EEOC complaints that have reached the trial stage. And, starting in 2016, the length of time to reach a trial and lose has exploded.

Some cases do settle. The number of settlements is not as significant as they might seem. In many federal settlements, no money changes hands. Many federal employees are happy to settle for nothing more than a transfer to a new department or to a new job. These numbers reflect how many cases settled and how many days it took to reach that settlement.

  • 2009: 81 cases/210 days median processing time
  • 2010: 55/137
  • 2011: 54/134
  • 2012: 69/182
  • 2013: 77/241
  • 2014: 57/246
  • 2015: 56/177
  • 2016: 78/215
  • 2017: 40/294

So, many cases settle within the first 7-10 months of the life of a written complaint. That suggests if your case does not settle within that time, then the process will require  years before reaching a resolution.