Destruction of evidence prevents pretext

destruction of evidence prevents pretext

During the supplemental investigation, the agency determined that

the SF-171s for the Position had been destroyed in September 1994.

The agency thereafter issued a final decision (FAD) in March 1997 in

which it inferred that the destruction of the SF-171s had been in bad

faith. The FAD found that, because the destruction of these records

prevented appellant from making a showing of pretext, it was appropriate

to draw an adverse inference against the agency. In this regard, the

FAD states:

Appellant thereafter filed a formal complaint in July 1993 alleging

discrimination based on race (Black), color (black), and age (44) when

he was not selected for the Position. Following an investigation,

appellant requested an administrative hearing which was held before

an administrative judge (AJ) in June 1994. The AJ thereafter issued

a recommended decision (RD) finding no discrimination. The agency

subsequently issued a final decision adopting the RD. Appellant

appealed and the Commission issued a decision in April 1996 vacating the

final decision. Williams v. Department of Transportation, EEOC Appeal

No. 01950795 (April 18, 1996). Specifically, the decision found that,

although the RO testified that he had considered appellant’s SF-171,

the record did not contain copies of the applicants’ SF-171s. For that

reason, the decision ordered the agency to supplement the record with a

complete copy of the selection package used for the Position, including

the SF-171s of appellant and the other “Best Qualified” applicants.

During the supplemental investigation, the agency determined that

the SF-171s for the Position had been destroyed in September 1994.

The agency thereafter issued a final decision (FAD) in March 1997 in

which it inferred that the destruction of the SF-171s had been in bad

faith. The FAD found that, because the destruction of these records

prevented appellant from making a showing of pretext, it was appropriate

to draw an adverse inference against the agency. In this regard, the

FAD states:

Accordingly, based on the inference that if the bid packages had been

produced they would have supported [appellant’s] claim that he had not

been given proper consideration for the [P]osition and that he would

have been selected if he had been considered, [appellant] has met his

burden of demonstrating pretext.

Based on this, the FAD concluded that appellant had met his burden of

establishing race discrimination.<0> As relief, the FAD ordered the

agency to give appellant priority consideration for the next available

Quality Assurance Specialist position and pay him attorney’s fees.

On appeal, appellant contends that the FAD’s finding of discrimination

entitles him to both retroactive reinstatement into the Position and

back pay. Conversely, the agency argues that the relief provided in

the FAD is appropriate because appellant, in effect, did not establish

discrimination. Specifically, the agency argues that the SF-171s,

although destroyed, are irrelevant because the RO testified that he

based his decision not to consider appellant on his interview responses.

The agency argues that, for this reason and because the RO testified that

he was unaware of appellant’s race, color, or age, it has demonstrated

that appellant was not discriminated against. Regarding the adverse

inference, the agency argues that the missing files were not destroyed

in bad faith and that the inference should be viewed as a sanction rather

than as a basis for finding that appellant met his burden of establishing

discrimination.

ANALYSIS AND FINDINGS

When discrimination is found, an agency must provide a complainant with an

equitable remedy that constitutes full, make-whole relief to restore him

to the position he would have occupied absent the discrimination. See,

e.g., Franks v. Bowman Transportation Co., 424 U. S. 747, 764 (1976).

Accordingly, the issue before us is whether the agency has provided

make-whole relief to appellant.

The regulations at 29 C.F.R. Part 1614 provide that, when an applicant for

employment has been discriminated against, full relief includes an award

of back pay and an unconditional offer to the individual of placement

into the position (or a substantially equivalent position) he/she would

have occupied but for the discrimination. 29 C.F.R. §1614.501(a)(3)-(4).

In this case, the FAD found that, based on the adverse inference,

appellant had established that his non-selection for the Position was

discriminatory. Moreover, the FAD interpreted this inference to mean

that if the bid packages had been produced they would have supported

appellant’s claim “that he had not been given proper consideration for

the [P]osition and that he would have been selected if he had been

considered.” Based on the foregoing, the Commission finds that the

appropriate relief for appellant is an offer of retroactive placement into

the Position and an award of back pay. Accordingly, it is the decision

of the Commission to modify the FAD on the question of the relief.

CONCLUSION

It is the decision of the Commission to MODIFY the FAD on the question

of the relief to which appellant is entitled.

ORDER

The agency is ordered to take the following remedial actions:

(1) The agency shall offer appellant placement into the position of

Quality Assurance Specialist, GS-1910-9/11/12, with promotion potential

to the GS-13 level, or a substantially equivalent position, retroactive

to the date on which he would have started in that position had he not

been discriminated against. This offer shall include an award of back

pay, with interest, and other benefits appellant would have received.

The agency shall accomplish this action within sixty (60) calendar days

of the date this decision becomes final.

(2) The agency shall determine the appropriate amount of back pay,

with interest, and other benefits due appellant, pursuant to 29

C.F.R. §1614.501, no later than sixty (60) calendar days after the date

this decision becomes final. Appellant shall cooperate in the agency’s

efforts to compute the amount of back pay and benefits due, and shall

provide all relevant information requested by the agency. If there is

a dispute regarding the exact amount of back pay and/or benefits, the

agency shall issue a check to the appellant for the undisputed amount

within sixty (60) calendar days of the date the agency determines the

amount it believes to be due. The appellant may petition for enforcement

or clarification of the amount in dispute. The petition for clarification

or enforcement must be filed with the Compliance Officer, at the address

referenced in the statement entitled “Implementation of the Commission’s

Decision.”

The agency is further directed to submit a report of compliance, as

provided in the statement entitled “Implementation of the Commission’s

Decision.” The report shall include supporting documentation of the

agency’s calculation of back pay and other benefits due appellant,

including evidence that the corrective action has been implemented.

In September 1992, appellant applied for one of six vacancies for the

position of Quality Assurance Specialist, GS-1901-9/11/12 (the Position).

The Position’s vacancy announcement states that it had promotion potential

to the GS-13 level and that it was located “anywhere in the contiguous

United States.” Appellant was found to be one of the “Best Qualified”

candidates for the Position at both the GS-9 and GS-11 levels, and he

was thereafter interviewed by telephone in early 1993. The individual

(the Responsible Official, RO) who interviewed appellant testified that,

because he was not impressed with either appellant’s responses or his

application (SF-171), he decided not to grant him an in-person interview.

Consequently, appellant was not selected for the Position.