Federal employees engaging in administrative litigation processes before (mainly) the Merit Systems Protection Board (MSPB) or Equal Employment Opportunity Commission (EEOC) should understand, and expect, that just as the affected employee can serve discovery requests upon the agency, federal agency discovery requests (as well as many other jurisdictions) upon the employees (complainants and appellants) are not uncommon. While agency service of discovery requests upon the affected employee may not be as common as the reverse, it does happen and can create a significant burden on those with no experience in such processes. One agency tactic is to literally bury the employee with overly burdensome requests for production of documents, admissions, and interrogatories. However, employees must remember they are obligated to respond to agency discovery requests and to do so in good faith. Otherwise they will need to form,ate a legitimate basis for failing to respond.
Complying With Federal Agency Discovery Requests
If served with a discovery request, employees must comply in a timely and responsive manner. Failure to do so could result in sanctions. It is important to note that prior to issuance of sanctions, warnings will be issued, indicating the judge is both perturbed and ready to issue sanctions. For example, in EEOC cases, sanctions for failure to cooperate during an investigation can only be imposed if the party was properly advised that failure to comply with a request could result in sanctions. EEOC MD-110, Chapter 6.
If an agency believes an appellant or complainant has failed to adequately respond to its discovery request, it will immediately seek to obtain compliance while setting the foundation for possible sanctions. This effort typically includes a motion for an order to compel discovery, which the employee may also serve conversely on the agency if the employee believes the agency has inadequately responded to his or her own discovery requests. The employee would do the same to the agency if similarly situated (situation was reversed).
Discovery Related Sanctions
The development of discovery related sanctions has mainly developed in connection with EEOC litigation than any other, due to the wide ranging nature of EEOC complaints compared to MSPB appeals predominantly involving adverse actions.
While sanctions are most often imposed on agencies because they have greater control of evidence, witnesses, and overall processing of EEO complaints as well as MSPB appeals, 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. 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 some cases, an EEOC judge may even issue a default judgement. For example, in Mirta Z. v. Social Security Administration, EEOC No. 0720150035 (EEOC OFO 2018), on appeal to the EEOC Office of Field Operations, OFO ruled that an EEOC administrative judge did not abuse his discretion when he sanctioned the Social Security Administration for failing to comply with a discovery order by issuing a default judgment in favor of the complainant.
In short, employees litigating before the EEOC or MSPB risk losing their cases or otherwise facing significant sanctions for failure to respond to federal agency discovery requests in a timely, compliant, and responsive manner. Of course, employees can object in the discovery process but this can become complicated very quickly.
It is highly recommended that employees engaged in MSPB or EEOC litigation obtain adequate consultation. In many cases, affected employees only need proper guidance and recommendations in these situations, which may be obtained in a cost efficient and effective manner.
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