Requests for Admissions Excluded from EEO Discovery?

Requests for Admissions (or just "Admissions") in the EEOC discovery phase of an EEO Complaint is a very important, but often underrated component of discovery, especially by pro se complainants. Recent developments may require complainants to aggressively seek permission from the Administrative Judge to make such discovery requests.

The EEOC PCI (Preliminary Case Information Order) is a relatively new development in the Equal Employment Opportunity Commission’s (EEOC) process for federal EEO complaints affecting federal employees in the pre-hearing to hearing phase. The PCI is a tool used by the parties to notify the Administrative Judge what evidence they believe is needed to supplement the record, which already includes the Report of Investigation (ROI). The parties will review the ROI and briefly identify what additional evidence is needed in support of their case. This PCI submission is mandatory and must be provided by both parties. The PCI process provides administrative judge’s (AJ) greater control in what could be best described as more direct and active case management. The new trend seeks to streamline case processing in connection with EEOC pre-hearing procedures. However, the truth is that this simplification could disadvantage complainants, especially in the area of discovery, and may, in some instances, conflict with not yet revised guidance contained in EEOC Management Directive 110 (2015) though not violative of 29 C.F.R. § 1614.109 (b), which otherwise entitles a complainant to discovery but reserves authorization (when, if, and to what extent) to commence discovery to the AJ after an “Initial Conference” (IC) in which the parties discuss and argue discovery needs, among other items, with the AJ and agency counsel.

An additional recent development related to PCI's has developed involving a key discovery component- Request for Admissions. Specifically, EEOC Administrative Judge's are no longer approving this key component of discovery. A number of our clients are encountering this issue currently. While not a widespread exclusionary practice yet, it is being encountered more often. It is important to note that historically, Requests for Admissions were approved as a matter of routine by the Administrative Judge either through the EEOC Acknowledgement Order, or the new PCI method.

For those unaware, in the EEOC discovery process, a Request for Admission is one of the three discovery tools, along with requests for production of documents and interrogatories (depositions are also a tool of discovery but increasingly rare), that can help you more efficiently pursue your EEO complaint. A Request for Admission is a written statement that asks the opposing party to admit or deny certain facts or allegations related to a complainant's claims. The purpose of this tool is to narrow the issues in dispute and to avoid the need for other proof at hearing. Requests for Admissions is a very important tool of discovery.

So, what is the bottom line? Complainants will need to aggressively seek Requests for Admissions through the Preliminary Case Information (PCI) Order. Simply requesting admissions, without sufficient articulation, may no longer be sufficient. Requests for Admissions Excluded from EEO Discovery may become an issue in the near future.