Tips from the Trenches

Ask These Questions in Discovery to Assess Potential Damages

Oct 23, 2019, 4:23:44 PM / by Deryn A. Sumner, Esq.

As we often talk about in training sessions, no matter how unlikely a finding of discrimination looks when an agency representative first reviews a case file, it is essential to thoroughly assess what the liability for damages could be. Key witnesses may leave federal service and decline to come back to present the agency’s legitimate non-discriminatory reasons, or they suddenly change their stories putting credibility in question, or something happens with the case processing that opens the door to sanctions, including default judgment.

Reports of Investigation often do not contain the necessary information to figure out what could be awarded in a case. Further, complainants, when asked what they are seeking in the case, may not know of the potential remedies available to them. They may either ask for types of remedies they will not be able to receive even if they win (for example, a promotion where a non-selection is not at issue) or will not ask for remedies that an administrative judge has the authority to award. Therefore, it is key for agency representatives to do the leg work to figure out potential damages that could be awarded. And doing the leg work to figure out potential damages means asking the right questions in discovery.

So what are the essential questions to ask in discovery? First, ask the complainant to identify all remedies she or he is seeking through the process. Note that is this different than what the complainant would be seeking in discovery. If the complainant is seeking pecuniary damages, such a request must be accompanied by actual receipts or other evidence showing the cost incurred, so those should be requested in a document request. If the complainant is asking for leave to be restored or changed, ask them to identify the type (i.e. sick leave, annual leave, LWOP, AWOL), the specific dates they used the leave, and any documentation that shows they would not have used the leave but for the agency’s actions identified in the formal complaint.

If the complainant is asking for non-pecuniary compensatory damages, ask them to identify any witnesses to the alleged harm, and any diaries, notes, or journals the complainant kept that would reveal their thoughts during this time. Properly tailored requests for medical documentation are of course essential to include in discovery. Keep in mind that if the complainant does not have an attorney, you must seek the Administrative Judge’s approval to ask for medical documentation under MD-110.

Also, if you are planning on taking the complainant’s deposition, which we almost always recommend doing if your agency’s finances allow, consider which questions are better suited to asking during the deposition as compared to a written question. Some questions, such as what else a complainant has going on in his or her life that could also have caused emotional distress during the same timeframe as the alleged discrimination, are better suited for follow-ups in person.

No matter how weak a complainant’s claims look, time and energy spent properly assessing a case’s value is never wasted. Utilize discovery in every case to figure out what evidence the complainant has in support of his or her claims.

Topics: federal hr & eeo law training, discrimination, claims

Deryn A. Sumner, Esq.

Written by Deryn A. Sumner, Esq.

Deryn A. Sumner, Esq. is a Partner at Gilbert Employment Law, as well as Co-Chair of the firm's Federal Sector EEOC Practice Group. She focuses her practice on representing federal employees and agencies before the EEOC and has worked on hundreds of cases involving claims of employment discrimination on the basis of disability, race, age, religion, retaliation and other bases. She also has experience representing employees and agencies in cases of whistleblower retaliation and adverse action challenges before the MSPB. Ms. Sumner graduated from American University's Washington College of Law in Washington, D.C. While in law school, she served as a Note and Comment Editor on the Administrative Law Review, as well as co-chair of the Labor and Employment Law Society. She also holds a Bachelor of Arts in Political Science from the University of Southern California in Los Angeles, California. Ms. Sumner is the co-author of several books on federal sector employment law including Representing Agencies and Complainants Before the EEOC; Federal Sector Disability Discrimination Law Deskbook; EEO Counselors' and Investigators' Manual; and an annual Consolidated Federal Sector EEO Update.

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