destruction of evidence is not in good faith
destruction of evidence is not in good faith
Nancy L. Cottrell, )
Appellant, )
) Appeal No. 01973583
v. ) Agency No. 5945341
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Administration), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of national origin (Native American), sex
(female), reprisal (prior EEO activity), and age (42), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq.; and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. Appellant alleges she was
discriminated against when:
(1) she was not selected for the position of Procurement Analyst,
GS-1102-11 (AMC-92-239) (Position);
(2) she was not selected for the position of Procurement Assistant,
GS-1106-6 (AMC-93-94);
(3) she was not selected for the position of Contract Administrator,
GS-1102-11 (AMC-92-248);
(4) she was not selected for the position of Contract Specialist
GS-1102-11 (AMC-93-95); and,
(5) she was denied assignment details to the positions of Lead Contract
Administrator and Lead Contract Specialist.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency’s decision is REVERSED and REMANDED.
The record reveals that during the relevant time, appellant was employed
as an Inventory Management Specialist in the Supply Management Division at
the agency’s Mike Monroney Aeronautical Center, Oklahoma City, Oklahoma.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on February 11,
1994. After appellant complained that the initial investigation was
inadequate, the agency conducted a supplemental investigation. At the
conclusion of the supplemental investigation, appellant requested that
the agency issue its FAD.
With respect to the Position (allegation 1), the FAD concluded that
appellant failed to establish a prima facie case of discrimination on any
of the bases alleged because the agency had expunged its personnel files
pertinent to this selection and no documentary evidence existed to show
that appellant had applied for the Position, with the only remaining
records showing that the selectee (SE) for the Position was a 46 year
old White female. The FAD further noted that the file was expunged
after being maintained for two years, consistent with FAA Order 3330.1B,
Chapter 3, paragraph 44 and FAA Order 1350.15B, Chapter 2, paragraph
(a), and that there was no evidence of bad faith in the destruction of
the file. The FAD also indicated that because appellant’s complaint was
not accepted for investigation for nearly two years after it was filed,
pursuant to an EEOC Remand decision dated December 9, 1994, which ordered
the agency to accept and investigate appellant’s complaint, the file in
question had already been destroyed.
On appeal, appellant makes numerous contentions challenging the adequacy
of the investigative record, specifically alleging that the personnel
files regarding the selection for the Position should have been maintained
as evidence once she filed her EEO complaint in February 1994, and that
the agency deliberately destroyed them because they support her claim of
discrimination. Appellant contends that she was far better qualified for
the Position, having a Bachelor’s degree in a relevant field, extensive
relevant training in procurement and government contracts, and many
years of pertinent experience. The evidentiary record confirms the
qualifications claimed by appellant. The agency has not submitted a
statement on appeal.
EEOC regulations provide that an adverse inference may be taken against
the party failing to provide requested information or testimony unless
“good cause” is shown for the failure to fully and timely respond to the
request. See 29 C.F.R.§ 1614.108(c)(3) and § 1614.109(d)(3); see also
King v. United States Postal Service, EEOC Request No. 05940441 (February
2, 1995). The Commission has long held that once an EEO complaint is
filed in connection with a non-selection, the agency is obligated to
retain all relevant records concerning the selection process for that
position. Sampson v. Department of Justice, EEOC Request No. 05960435
(August 13, 1998) (citing, Ramirez v. United States Postal Service,
EEOC Request No. 05920839 (March 4, 1993); Colquitt v. Dep’t of Veterans
Affairs, EEOC Request No. 05870528 (June 14, 1988)).
In reviewing the record, we note that the agency provides only a copy
of one of the FAA Orders referenced, FAA Order 3330.1B, Chapter 3,
paragraph 44, which requires the agency to maintain full records on
selections for not longer than two years, but not to destroy them until
after “the time limit for grievance has elapsed.” Thus, the agency not
only had an obligation to retain the records once appellant filed her
complaint under EEO guidelines, as noted above, but this obligation is
also specifically addressed in its own personnel rules. Therefore,
we find that the agency’s explanation that the file was destroyed in
good faith consistent with the cited FAA Orders not to be credible.
Moreover, the record is devoid of any evidence to show exactly when
the file was destroyed and no explanation is offered as to why it was
apparently destroyed before receipt of the EEOC Remand decision which was
issued within two years of appellant’s notice of non-selection. Also,
no attempt is made to reconstruct any of the documentation, or to produce
the SE’s personnel file, with her application for the Position, which
would permit a basic comparison of appellant’s and SE’s qualifications.
We note with interest that the selecting official (SO) for the Position
submits affidavit testimony that he has no memory of being the SO, and
can recall no details concerning the selection process for the Position.
SO provides no reason for his inability to recall the selection process
for the Position. In her appeal statement, appellant indicates that SE
provided sworn testimony identifying SO as the selecting official, and
also provided details concerning the selection, including the interview
process which consisted of two interviews each for SE and appellant.
However, inexplicably, SE’s affidavit is not in the record. Nonetheless,
we find it questionable that SO has no recall whatsoever about the
selection process for the Position, especially when appellant, and
apparently SE, are able to provide detailed accounts.
In these circumstances, the agency’s actions lead us to conclude
that the requested information would have reflected unfavorably on the
agency. Having reviewed the record in its entirety, the Commission finds
that it is proper to impose an adverse inference on the agency, and to
find that appellant has established a prima facie case with respect to
allegation 1 on the basis of national origin.<1> See McDonnell Douglas
v. Green, 411 U.S. 792 (1973).
Moreover, we find that the agency has failed to articulate a legitimate
nondiscriminatory reason for its decision, given the lack of records and
SO’s inability to recall anything at all about the selection process
for the Position, including the reason why SE was selected instead of
appellant. Therefore, we find that the agency has failed to meet its
evidentiary burden, and appellant prevails in showing that the agency’s
selection of SE for the Position was the result of discriminatory animus
due to her national origin.<2> See Texas Department of Community Affairs
v. Burdine, 450 U.S. 248 (1981).
Therefore, after a careful review of the record, including appellant’s
contentions on appeal, the agency’s response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the FAD and
REMAND this case to the agency to take remedial actions in accordance
with this decision and order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively promote appellant to the Procurement
Analyst GS-1102-11 position, or other comparable GS-11 contracting
position agreeable to appellant, from February 2, 1993, the effective date
of SE’s selection. Appellant shall also be awarded back pay, seniority
and other employee benefits from the date of the effective promotion,
along with any incurred and reasonable attorney’s fees.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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. The 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;”
2. The agency is directed to conduct training for the Selecting
Official and all managers identified by appellant who were involved
in the selection process. The agency shall address these employees’
responsibilities with respect to eliminating discrimination in the
workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law;
3. The agency shall take appropriate preventative steps to ensure that
no employee is subjected to discrimination due to national origin,
especially those of Native American heritage;
The agency shall conduct a supplemental investigation on the issue of
appellant’s entitlement to compensatory damages and shall afford appellant
an opportunity to establish a causal relationship between the incident
of discrimination and any pecuniary or non-pecuniary losses. See, West
v. Gibson, No. 98-238, 1999 WL 380643 (U.S. June 14, 1999). The agency
should specifically consider appellant’s actual expenses incurred for
the preparation of her applications for the positions in her other
allegations, as well as the eight hours of annual leave she used to
prepare for an interview. The appellant shall cooperate in the agency’s
efforts to compute the amount of compensatory damages, and shall provide
all relevant information requested by the agency. The agency shall issue a
final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below;
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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Mike Monroney Aeronautical Center,
Oklahoma City, Oklahoma, copies of the attached notice. Copies of the
notice, after being signed by the agency’s duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled “Implementation of the Commission’s Decision,” within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0595)
Compliance with the Commission’s corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency’s report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant.
If the agency does not comply with the Commission’s order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. §
1614.503(a). The appellant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant has the right to
file a civil action on the underlying complaint in accordance with the
paragraph below entitled “Right to File A Civil Action.” 29 C.F.R. §§
1614.408 and 1614.409. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. § 2000e-16(c)(Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. § 1614.410.
ATTORNEY’S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency — not to the Equal Employment Opportunity Commission,
Office of Federal Operations — within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney’s fees in accordance with 29 C.F.R. § 1614.501.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. § 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil
action must be
filed within the time limits as stated in the paragraph above (“Right
to File A Civil Action”).
FOR THE COMMISSION:
August 20, 1999
____________ ___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1We do not find discrimination on the basis of sex or age because SE was
in the same protected class as appellant on these bases. We also do
not find that appellant established a prima facie of reprisal because
the evidence does not show that SO had actual knowledge of her prior
EEO activity at another agency. See Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d
545 F.2d 222 (1st Cir. 1976).
2Because a finding of discrimination on appellant’s other allegations
would not afford her any greater or additional remedy than she may
acquire by virtue of this determination (see Order items No.1 & 4),
the additional allegations will not be addressed herein.
