On September 1, 2022, an Administrative Judge (AJ) issued an Initial Agency Decision under 10 C.F.R. Part 708 granting a Motion for Summary Judgment filed by a DOE Contractor.  The AJ found that the Contractor had shown that no genuine issue of material fact existed concerning the question of whether the Contractor had met its burden of proving that it would have issued written guidance to the complainant for her attendance issues, regardless of the fact that the Employee had previously filed a Complaint against the Contractor under Part 708.

In its Motion, the Contractor contended that it issued the second CA to the Employee to address her attendance and tardiness issues, and that the Employee had admitted that fact by failing to respond to a request for admission asking:  "Admit that [the written guidance] was issued to address attendance and tardiness issues, of which, you had already been coached and mentored about." The AJ agreed with the Contractor finding that while he was not bound by the Federal Rules of Civil Procedure, the rule established by Rule 36 was an appropriate one in the context of the proceeding, noting that the Part 708 regulations recognize that discovery is an important component of meaningful administrative proceedings and due process. Accordingly, he found, Part 708 provides Administrative Judges with the discretion to order discovery at the request of a party, based on a showing that the requested discovery is designed to produce evidence regarding a matter, not privileged, that is relevant to the subject matter of the complaint. He noted that Part specifically permits the use of requests for admission, and that the discovery process would be rendered meaningless if parties were not required to respond to appropriate requests, without showing that there existed a good reason for failing to respond. The AJ further stated that without appropriate and meaningful consequences for a parties' failure to respond to a request for admission, there would be no point in allowing for their use . Accordingly, the AJ found that it was appropriate and fair that the precedent of Rule 36 be followed and that the Employee's failure to admit, deny, or object to the request for admission constitutes an admission which conclusively establishes that the written guidance was issued to the Employee to address her attendance and tardiness issues, and that she had been previously coached and mentored for those same issues.

The AJ further found that the record showed that the Contractor was contemplating disciplinary action against the Employee prior to her filing of the Complaint, and that the record contained clear and convincing evidence that the Contractor would have issued the written guidance to Employee in the absence of her protected conduct (the filing of her Part 708 Complaint). (OHA Case No. WBH-22- 0002, Fine)