Destruction of Evidence that would have been unfavorable to the agency and hides evidence
The record discloses that there was evidence in both investigative files
of destruction of evidence relevant to the complaints. The AJ (Complaints
III&IV) heard testimony from the EEO counselor about the destruction but
did not address its impact on her analysis of the case. This was error.
The Commission has the authority to protect the integrity of the
administrative process and must take appropriate action to guard
against abuse or obstruction by either party. DaCosta v. Department
of Education, EEOC Appeal No. 01995992 (February 25, 2000). See Bass
v. Department of Justice, EEOC Request No. 05960082 (February 9, 1996)
(agency’s destruction of all comparative evidence warrants an adverse
inference). It is apparent that the agency failed to take appropriate
action to preserve the memorandum requested by the EEO counselor and that
S1 by his own admission, destroyed the evidence rather than provide it
to him.
Where, as here, the agency failed to provide certain records in
it possession or to maintain records it was required to preserve, the
Commission is empowered to draw an adverse inference that the evidence
would have been unfavorable to the agency or favorable to complainant.
29 C.F.R. § 1614. 404 (c)(1). Applying this principle, the Commission
concludes that this document would have reflected unfavorably on the
agency and would have evidenced an intent to retaliate against complainant
for his opposition to and participation in EEO activity.<5>
Aside from the corrective action we have taken to draw an adverse
inference, we discuss below the impact of the adverse inference, S1 and
S2’s actions and other evidence of discrimination.
