When federal agency fails to provide requested information and claims personnel files not maintained, this is a clear violation of EEOC regulations.

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);

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.