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1100.05000 – Dismissal of Charge; Appeal

The Board reviews the Office of the General Counsel’s (OGC) dismissal of a charge de novo, applying the same legal standard OGC applied to the allegations in the charge. At this stage of litigation, “the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation.” The Board thus assumes the charging party’s factual allegations are true, and views them in the light most favorable to the charging party. The Board does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. Thus, at this stage of the case the Board generally does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. Rather, if there are one or more contested facts (or mixed questions of law and fact) that could affect the outcome, or there are contested, colorable legal theories, a complaint should issue, with the disputed issue(s) to be resolved at a formal hearing. Where a material factual dispute turns on the respondent’s state of mind, the Board takes into account that motive is generally within the respondent’s own knowledge and that there is little opportunity for pre-hearing discovery, and the Board accordingly imposes on the charging party a relatively low burden to allege facts tending to show the requisite state of mind. (p. 9.)