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.