Since the primary purpose of this site is to provide immediately usable advice to federal employees, this article will not present a treatise on discovery theories, methods, or strategies in MSPB or EEO proceedings (consult your Master Agreement for discovery related to arbitration), though we intend on providing more detailed practitioner centric articles in the future. However, at this time, we want to introduce employees to the general concept of discovery in both MSPB (adverse actions including removal, demotion, etc.) and EEOC (EEO complaints) proceedings and encourage the employee who may be self-representing (Pro Se) to engage the process. For the purpose of this article, we will use the term “affected employee” to represent both the appellant in MSPB proceedings or complainant in EEOC proceedings.
Entitlement to Discovery
In both MSPB and EEOC litigation, the affected employee will have the opportunity, as an entitlement, to engage the agency in discovery. Specific instructions concerning discovery will appear in the Acknowledgement Order (AO). These instructions are time sensitive, particularly the initial service of discovery upon the Agency. Agencies must be responsive to discovery requests. Failure to respond, or otherwise adequately respond, can result in sanctions upon the agency. For example, the EEOC is provided authority to impose sanctions for shortcomings in the EEO process 29 CFR 1614.108 (c) and 29 CFR 1614.109 (f). Conversely, though far more rare, Administrative Judges may impose sanctions upon the affected employee as well. Therefore, it is important the affected employee be equally responsive. Sanctions can take various forms including, but not limited to, default judgement or an adverse inference for either party. (An adverse inference is negative supposition or conclusion reached by inference rather than through evidence or testimony determined to be credible.) Note, in 2003, the Department of Justice determined EEOC Administrative Judges did not have the authority to order monetary awards as sanctions against agencies.
As an Option
Affected employees do not have to engage in discovery and many do not based on lack of confidence or additional associated workload. However, such a decision could deprive the employee of critical information and opportunity. It is important to realize that although the agency, or another investigating entity, may have developed the official case file (for example, the agency “Schedule 752 file” in MSPB cases or the ROI in EEOC cases), additional evidence may continue to be presented in your defense against an adverse action or in support of your claim in an EEO case. It is also important to realize that although you may waive discovery, the agency is under no obligation to “return the favor.”
Agency Responses to Discovery Requests
Here is a little insider information. Agencies may argue over every aspect of your discovery request to either 1) delay the process, 2) create additional billable hours, or 3) make your life a little more difficult. Subsequently, though the acknowledgement order specifies parties should attempt to resolve arguments over discovery informally (not going to the judge), you will likely need to craft a motion to compel production of evidence at some point. Therefore, it is critical your discovery requests be properly formatted and not overly broad as your request may be subject to review by the Judge. Simply put, it is not your opportunity to go on a “fishing expedition” or demand the proverbial “kitchen sink.”
Note to Unions
Union officials representing affected employees often make mistakes in discovery requests. Some mistakes are critical. These requests range from asking for the most ridiculous volumes of evidence (i.e. “all disciplinary actions taken by the Agency during preceding ten years”) to the most obscure and ambiguous (i.e. “the names of employees disciplined or removed for being AWOL an average of three days a month with at least one day falling on a Friday). In such requests, the affected employee or union official will have a difficult time getting an Administrative Judge to compel agency production. Another error union officials make is to submit discovery requests as requests for information under 5 USC 7114. As such a request is outside the authority of the Acknowledgement Order, a union may have great difficulty in getting an Administrative Judge to compel the agency to produce the requested information.
As previously stated, this article is intended as a general introduction to discovery for affected employees. It is not intended to cover every aspect of successful discovery practice. If you have questions, you should either contact your union representative or seek the assistance of a consultant using the information provided below. For discovery related issues related to arbitration, contact your union and refer to your Master Agreement.
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