By Meghan Droste, January 17, 2018
Welcome to the first edition of Tips from the Other Side—insight from a complainant’s counsel that I hope will help those of you who process complaints and represent agencies before the EEOC. In this column I will share some of the things that I look for when representing complainants, mistakes that I regularly see agencies make, and other tips that should make your jobs easier, even if it makes mine harder in the process.
For this month’s column, I am going to focus on the always riveting topic of document retention. As anyone who attended my presentation during the fall 2017 EEOC Law Week can tell you, I get very excited when I have a non-selection case and I find out that the agency has destroyed the documents related to the selection process. Why is that? Because I know two things: 1) the agency may have a difficult time articulating a non-discriminatory reason for its decision not to select my client, and 2) I have a chance of prevailing on a motion for sanctions.
Dear readers, this is such an easy one. Retain the documents. I’ll say it again, retain the documents. Share this advice with everyone at your agency—retain the documents. This isn’t just good advice, it is a requirement. Pursuant to 29 CFR § 1602.14, agencies are required to preserve selection records for at least one year after the selection decision is made, or, if an applicant files an EEO complaint, until that complaint is fully litigated.
If being required to do it is not enough to convince you, think of the consequences. EEO complaints can take years to litigate. It is not out of the realm of possibility for a complaint to go to hearing two years after the agency decides not to select the complainant. It is also not out of the realm of possibility that by the time the hearing occurs, the selecting official, or anyone else involved in the selection, does not remember anything about the complainant, or the selectee, or even the position. If the selection documents—resumes, scoring sheets, ranking lists, notes of any kind—still exist, these can help refresh the recollection of the agency’s key witnesses. Without these documents, the agency may find itself in the position in which it cannot articulate a legitimate, non-discriminatory reason for not selecting the complainant. For example, in Hollis v. Veterans Affairs, EEOC App. No. 01934600 (May 3, 1994), the agency destroyed the interview notes and the selecting officials testified that the complainant answered questions poorly but could not recall which ones. The administrative judge concluded that the agency was not able to articulate a non-discriminatory reason for its selection decision.
Another consequence may be sanctions. The specific sanction will depend on the facts of the case; it might be an inference that the complainant performed best in the interviews, or that the complainant provided certain information in his application. Although sanctions do not guarantee that a complainant will win, why take the risk of being disadvantaged with an adverse inference that could have been avoided?
If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com