Agency Sanctioned for Defective Investigation

The EEOC upheld an administrative judge’s imposition of sanctions against an agency when it failed to produce the interview notes for applicants granted second interviews.Complainant v. Department of Health and Human Services, EEOC No. 0720130003 (6/16/14). The agency was found to have subjected an HR specialist to race and age discrimination when she was not selected for a promotion to GS-13.

The AJ found the EEO investigation to be deficient and ordered the agency to produce all applications and interview notes for applicants granted second interviews. When the agency was unable to produce the notes, the AJ granted the complainant’s motion for sanctions and made adverse inferences that the destroyed interview notes would have reflected that the specialist did well in the interview and no other applicant gave a better interview.

Although the agency contended that the majority of the selectees were African American and were older than or of a comparable age to the specialist, the Office of Federal Operations pointed out that the agency failed to provide statistics regarding the demographics of the candidates at each level of interviews and various managers who conducted the first-level interviews. The EEOC did not know if the manager who interviewed the specialist only recommended younger, white candidates for the second interviews. After finding that the specialist established a prima facie case, the OFO held that the agency failed to present a nondiscriminatory reason for its action.

As a remedy, the EEOC upheld the AJ’s awarding the specialist placement in the contested position.It found that like the specialist, two of the selectees had not worked at the GS-13 level. While those selectees had a college degree unlike the specialist, the AJ noted that it was not a necessary qualification. The EEOC also upheld the AJ’s award of some $84,000 in attorney fees.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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