UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON, D.C. REGIONAL OFFICE

APPELLANT’S INTERROGATORIES

Appellant, through his attorney, Michael J. Snider, Esq., requests that the Agency respond to the following Interrogatories pursuant to 5 C.F.R. § 1201.72.  You are required to answer these Interrogatories separately and fully in writing, under oath.  You are required to fully respond to these interrogatories and your Response must be received no later than twenty (20) calendar days after receipt of these Interrogatories, to the undersigned at 100 Church Lane, Baltimore, Maryland 21208.

Instructions

A.  Each Interrogatory is to be answered fully on the basis of information which is in your possession.

B.  In each of your answers to these Interrogatories, you are requested to provide not only such information as is in your possession, but also information as is reasonably available.  In the event that you are able to provide only part of the information called for by any particular Interrogatory, please provide all the information you are able to provide and state the reason for your inability to provide the remainder.

C.  If you object to, or otherwise decline to answer, any portion of an Interrogatory, please provide all information called for by that portion of the interrogatory to which you do not object or to which you do not decline to answer.  For those portions of an Interrogatory to which you object or decline to answer, state the reasons for such objection or declination.

D.  Every Interrogatory herein shall be deemed a continuing Interrogatory and you are to supplement your answers promptly if and when you obtain relevant information in addition to, or in any way inconsistent with, your initial answer to such Interrogatory.

E.  If any of the following Interrogatories can be answered fully and completely simply by referring to an exhibit number, page, and paragraph of the investigative file compiled by the Agency and furnished to the Appellant by the Agency in connection with this administrative complaint of discrimination, such references, if adequately identified to inform the Appellant as to your response, will serve as a satisfactory response to such Interrogatory.

DEFINITIONS

A.  ‘Appellant’ means Mr. Client.

B.  ‘Agency,’ ‘you,’ ‘your,’ or ‘yourself,’ means the Department of Veterans Affairs, the named Agency in this case, and any and all of its agents, representatives, employees, servants, consultants, contractors, subcontractors, investigators, attorneys, and any and all other persons or entities acting or purporting to act on behalf of the agency.

C. ‘Person’ ‘persons’ ‘people’ and ‘individual’ means any natural person, together with all federal, state, county, municipal and other governmental units, agencies or public bodies, as well as firms, companies, corporations, partnerships, proprietorships, joint ventures, organizations, groups of natural persons or other associations or entities separately identifiable whether or not such associations or entities have a separate legal existence in their own right.

D.  ‘Document,’  ‘documents,’ and ‘writing’ means all records, papers, and

books, transcriptions, pictures, drawings or diagrams of every nature, whether transcribed by hand or by some mechanical, electronic, photographic or other means, as well as sound reproductions of oral statements or conversations by whatever means made, whether in your actual or constructive possession or under your control or not, relating to or pertaining in any way to the subject matters in connection with which it is used and includes originals, all file copies, all other copies, no matter how prepared, and all drafts prepared in connection with such writing, whether used or not, including by way of illustration and not by way of limitation, the following:  books; records; reports; contracts; agreements; expense accounts; canceled checks; catalogues; price lists; video, audio, and other electronic recordings; memoranda (including written memoranda of telephone conversations, other conversations, discussions, agreements, acts and activities); minutes; diaries; calendars; desk pads; scrapbooks; notes; notebooks; correspondence; drafts; bulletins; electronic mail; facsimiles; circulars; forms; pamphlets; notices; statements; journals; postcards; letters; telegrams; publications; inter- and intra-office communications; photostats; photographs; microfilm; maps; drawings; diagrams; sketches; analyses; electromagnetic records; transcripts; and any other documents within defendant’s possession, custody or control from which information can be obtained or translated, if necessary, by detection devices into reasonably usable form, i.e., typed in English prose. 

E.  ‘Communication’ or ‘communications’ means any and all inquiries, discussions, conferences, conversations, negotiations, agreements, meetings, interviews, telephone conversations, letters, correspondence, notes, telegrams, facsimiles, electronic mail, memoranda, or other forms of communications, including but not limited to both oral and written communications.

F.  ‘Produce’ and ‘provide’ mean to provide either a legible true copy of the original of any document and/or communication.

G  ‘Relate to,’ ‘relating to,’ ‘concerning,’ ‘pertain,’ and ‘pertaining to’ mean consisting of, referring to, reflecting or arising out of, evidencing or in any way legally, logically, or factually connected with the matter discussed, directly or indirectly.

H.  ‘Identify,’ ‘identifying,’ and ‘identification’ when referring to a person mean to provide an identification sufficient to notice a deposition of such person and to serve such person with process to require his or her attendance at a place of examination and shall include, without limitation, his or her full name, present or last known address, present or last known business affiliation, home and business telephone number, title or occupation, each of his or her positions during the applicable period of time covered by any answer referring to such person, and relationship, if any, to the agency.

I.  ‘Identify,’ ‘identifying,’ and ‘identification’ when used in reference to a writing or document mean to give a sufficient characterization of such writing or document to properly identify it in a request to produce and shall include, without limitation, the following information with respect to each such document:

the date appearing on such document, and if it has no date, the answer shall so state and shall give the date or approximate date such document was prepared;

the identity or descriptive code number, file number, title or label of such document;

the general nature and description of such document, and if it was not signed, the answer shall so state and shall give the name of the person or persons who prepared it;

the name(s) of the person(s) to whom such document was addressed and the name of each person other than such addressee to whom such document, or copies of it, were given or sent;

the names of the person(s) having present possession, custody, or control of such document; and

whether or not any draft, copy or reproduction of such document contains any postscripts, notation, change or addendum not appearing on the document itself, and if so, the answer shall give the description of each such draft, copy or reproduction.

In answering these Interrogatories, the agency is requested to furnish not only such information as is available to the agency but also such information as is known to any of the agency's agents, representatives, employees, servants, consultants, contractors, subcontractors, investigators, attorneys, and any other person or entity acting or purporting to act on behalf of the agency.

If any matter responsive to any of the interrogatories, the agency shall set forth completely the grounds for the asserted privilege, along with copies of the Privacy Act provisions or other written materials upon which such assertion is made.  The agency shall identify as to each privileged communication or document:

its date;

its author(s);

the business title or position of its author(s);

its recipients(s);

the business title or position of its recipient(s);

it number of pages;

its subject matter;

the legal basis upon which the agency claims privilege;

the specific portion of the interrogatory or document to which the communication or document is responsive.

Each interrogatory and each part thereof is to be answered separately and fully.  Immediately preceding your response to each of the following interrogatories, please set forth the full text of the question asked, followed by your response. 

Documents are to be labeled to indicate the interrogatory to which they respond.

In order to simplify the issues and resolve as many matters of fact as possible before hearing, if, following a reasonable and thorough investigation using due diligence, you are unable to answer any interrogatory, or any part thereof, in full because sufficient information is not available to you, answer the interrogatory to the maximum extent possible, including any knowledge or belief you have concerning the unanswered portion thereof and the facts upon which such knowledge or belief is based.  In addition, state what you did to locate the missing information and why that information is not available to you.

When an exact answer to an interrogatory is not known, state the best estimate available, state that it is an estimate, and state the basis for such estimate.

If documents once in your possession or under your control are requested or are the subject of an interrogatory, and such documents are no longer in your possession or under your control, state when such documents were most recently in your possession or under your control, and what disposition was made of them, including identification of the person now in possession of or exercising control over such documents.  If the documents were destroyed, state when and where they were destroyed, and identify the person or persons who directed their destruction.

All of the following interrogatories shall be continuing in nature until the date of the hearing, and you must supplement your answers as additional information becomes known or available to you.

NOTE:

IF YOU CONSIDER ANY INTERROGATORY OR REQUEST FOR PRODUCTION OBJECTIONABLE, PLEASE CALL THE UNDERSIGNED BEFORE OBJECTING, IN ORDER TO ATTEMPT TO NARROW THE QUESTION OR AVOID THE OBJECTIONABLE PORTION OR ASPECT.

APPELLANT’S INTERROGATORIES

1.  Identify all GS-15 employees in OHRM, including their name, age, religion, race, handicap status, whether they are supervisor or non-supervisory.

2.  Please identify, with specificity, any and all information relied upon in your decision not to grant the Appellant’s request to work at home as a reasonable accommodation.  Address in detail your analysis of Appellant’s status as a disabled employee, qualified disabled employee and any undue hardship such accommodation would have provided.

3.  Identify all reasonable accommodations you have provided Appellant since June 1, 2002, including the disabling condition the accommodation was meant to address, who requested the accommodation, who approved the accommodation, when the accommodation was requested, when it was approved and all facts relied upon to approve the accommodation(s).

4.  Please identify, with specificity, any and all information relied upon in your decision not to accept six (6) medical certificates furnished by the Appellant in support of his request to work at home as a reasonable accommodation.

5.  Please identify, with specificity, any and all information relied upon in your decision not to accept medical certificates furnished by the Appellant in support of his request for sick leave following your decision to disapprove his request to work at home. State with specificity and identify on what basis did you determine that all 6 medical certificates from Dr. Mueller, the board certified Orthopedic Surgeon treating Mr. Client, were “insufficient” to support his request for sick leave? Please identify, with specificity, any and all medical information and/or advice you relied upon in determining not to grant Mr. Client’s requests for sick leave from October 21 on?  Please identify, with specificity and detail, who on your staff or in another DVA office evaluated each of the following medical certificates submitted by Mr. Client, including their legal and regulatory basis, their analysis, their conclusions, and their decisions: Dr. David Roberts, July 8, 2002; and Dr. Robert Mueller - October 15, 2002; October 24, 2002; November 12, 2002; November 27, 2002, December 10, 2002.

6.  Identify Mr. Client’s first line supervisor of record since June 1, 2002, including all work assignments he or she has given to Mr. Client since June 1, 2002.

7.  Identify all performance standards and performance appraisals submitted by Mr. Manuel Oliverez, President and CEO of The National Association of Hispanic Federal Executives (NAHFE), from June 1, 2000 through October 1, 2002.

8.  Identify with specificity the frequency with which performance appraisals are normally required and completed for all GS-15 employees in the OHRM. Identify the date(s) and rating(s) of Mr. Client’s most recent performance appraisal of record, the official who completed the appraisal(s) and the official who approved the appraisal(s), and the performance standard, if any, upon which these appraisals were based. Identify for each such appraisal and rating, whether or not copies of these performance standards and appraisals were provided to Mr. Client, and if not, why not?

9.  Identify all persons in OHRM who were considered for awards and bonuses since June 1, 2002, including who received awards, the nature and amount of the award, the basis for the award and the process used for the awards.

10. Did you consider Mr. Client for awards and bonuses based on the two outstanding appraisals submitted by President Oliverez of NAHFE, and, if so, provide documentation which shows how he was considered, what determination was made, and by whom.

11. Identify with specificity all reasons why the request by Mr. Oliverez to extend Mr. Client’s IPA assignment was denied, including who made that decision, when the decision was made, all persons who had input to that decision, and all information upon which that decision was based.

12. Identify all information relied upon to classify VA PD# 29434A, Personnel Management Specialist, GS-201-15, which you provided to Mr. Client on December 20, 2002, and certified as the official position description (PD) for the position to which he is currently assigned.

13. Describe the regular procedure for detailing an employee to a position? How soon after an employee returns to their official position of record from a long term detail (i.e., 2 years) may an employee be detailed to another position? Identify all official paperwork in Mr. Client’s OPF which shows that Mr. Client was detailed to a 2 year IPA position with NAHFE from June 1, 2000, through May 31, 2002?

14. Identify all OHRM employees on long term details since January 1, 1999, by date of detail, length of detail, age, gender, race, ethnicity, handicapping condition, and EEO protected status.

15. Describe all reorganizations that have taken place in OHRM since June 1, 2000, including who decided on the reorganization, what information was relied upon and the reasons for reorganizing. State specifically which positions and functions were reorganized. Identify all decision documents, organizational charts and position descriptions effecting and effected by the reorganization(s).

16. Identify all reasons for having Mr. Client report directly to you instead of to Mr. Curley, as do several other GS-15s.  In your response, please identify all GS-15 employees in OHRM who report to GS-15 supervisors, and provide any policy guidance on employees reporting to supervisors at the same grade level.

17. On what basis did you choose to deny Mr. Client sick leave for documented office visits to Dr. Muller, for which he submitted medical documentation of the visits? Explain in detail what you meant when you said that you require Appellant’s presence because you have an aggressive schedule?

18. Please identify, with specificity and detail, your reasons for placing Mr. Client in involuntary sick leave for a period of seven (7) consecutive workdays, from August 15 through August 23, 2002.

19. Identify any “virtual employees” employed by the Agency, including their name, job title, grade, PD number, supervisor, component, physical work location, race, age, gender, disability status, length of time in virtual employee position and a detailed description of their job duties.

20. You made a reasonable accommodation for Mr. Client to work at home from July 5, 2002, through October 25, 2002. What caused you to cease making that accommodation after he provided you medical documentation to support such accommodation?

21. Identify the reasons why you did not reassign Mr. Client to the position of Director for Human Resources Management Program Assessment, which you had him describe in a PD and which he submitted to you on July 9, 2002.

22. You stated in your e-mail letter to Mr. Client on August 14, 2002, that: “Since you have continued to provide assistance to me in working on the accountability program and my need to study your submissions in more detail, I have no other accountability assignments to give you at this time.” Given that you acknowledge you had no work to assign to him at that time, please state with specificity and detail your reasons for requiring Mr. Client to report for duty to Room 239 in VACO.

23. Identify with specificity your “business necessity” for not approving Mr. Client’s request to continue working at home? Please be explicit in demonstrating the nexus between his assigned work, the location at which such work is accomplished, and whatever business necessity you cite.

24. You made a reasonable accommodation for me to work at home from July 5, 2002, through October 25, 2002. What caused you to cease making that accommodation after I provided you medical documentation?

25. Please identify, with specificity and detail, the office equipment you have provided Mr. Client to work with in Room 239, VACO.   Please state, with specificity, your reasons for determining that it is advantageous to the government to work with office equipment you furnished in Room 239, VACO. How would that improve the efficiency of the Federal service?

Respectfully Submitted,
Michael J. Snider, Esq.
Attorney for Complainant