Federal employees engaging in administrative litigation processes before (mainly) the Merit Systems Protection Board (MSPB) or Equal Employment Opportunity Commission (EEOC) should understand that just as the affected employee can serve discovery requests upon the agency, the agency can serve discovery requests upon the affected employee. While agency service of discovery requests upon the affected employee may not be as common as the reverse, it does happen in many cases and can create a significant burden on those with no experience in such processes.
If served with a discovery request, employees must comply in a timely and responsive manner. Failure to do so could result in sanctions. While sanctions are most often imposed on agencies because they have greater control of evidence, witnesses, and overall processing of EEO complaints, complainants and appellants may also be sanctioned for failure to adequately respond to discovery requests by the Agency. For example, in Nakesha D. v. Department of Health and Human Services, Indian Health Service (EEOC OFO 2017), the administrative judge denied a complainant’s request for a hearing as a sanction because the complainant failed to cooperate in discovery requests. In Barabara C. v. Department of Health and Human Services, Food and Drug Administration (EEOC OFO 2017), the administrative judge canceled a hearing as a sanction for the failure of the complainant to provide five documents and two interrogatories requested by the agency in the discovery process. Conversely, agencies may be sanctioned as well. For example, after drawing an adverse inference (effectively a sanction) based on an agency’s failure to produce relevant evidence, the EEOC found the complainant was subjected to retaliation for complaining about harassment when she was denied a position. See, Prevo v. Federal Deposit Insurance Corporation (EEOC OFO 2000).
In short, employees litigating before the EEOC or MSPB risk losing their cases or otherwise facing significant sanctions for failure to respond to agency discovery requests in a timely and responsive manner. Of course, employees can object in the discovery process but this can become complicated very quickly.
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