Agency must retain records and stop destruction of evidence once complaint process initiated
Regarding the destruction of interview notes, the Commission notes that
pursuant to EEOC Regulation 29 C.F.R. § 1602.14, agencies have a duty to
preserve records pertaining to appointments, selections and demotions.
Moreover, the regulation requires that once the complaint process is
initiated, the agency is required to retain personnel records until a
final disposition of the complaint.
The Commission also notes that the AJ could have acted within his discretion to draw an adverse inference
against the agency. See 29 C.F.R. § 1614.108(c)(3)(i); Hale v. Department
of Justice, EEOC Appeal No. 01A03341. The appropriate adverse inference
that the AJ could have drawn was that the missing information would have
reflected unfavorably on the agency. Even if this adverse inference
were drawn in the instant case, however, the evidence of record does
not establish that complainant would have been chosen over the selectee
for the position.
