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.
InformedFED provides expert administrative consulting and related transactional services to federal employees in all labor and employee relations matters including arbitration, grievances, disciplinary and adverse actions,Unfair Labor Practice Complaints (ULP), EEO Complaints, Reasonable Accommodation and Alternative Dispute Resolution matters (ADR).
Web: www.InformedFed.com | Hire a Consultant
The material on this website is intended to provide only general information and comment to the public and federal employees. Although we make our best efforts to ensure information found on this website is accurate and timely, we cannot, and do not, guarantee the information is either. Nor do we guarantee accuracy of any information contained on websites to which our website provide links. Do not, under any circumstances, rely on information found on our website as legal advice. It should be considered a general guide. Federal personnel matters are often circumstantially complicated and fact dependent. Consultants offered through this website are not attorneys and are not employees of InformedFED. They are advanced labor and employee relations practitioners. They provide services to clients in their individual capacities through individual agreements with their clients. Though attorneys are not required for representation in administrative matters or proceedings, there are instances in which our consultants may refer you to attorneys or otherwise make such recommendation. In no instance does this site, or consultants associated with this site, infer the provision of legal services.