U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adolfo O.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency. Appeal No. 0120140799 Hearing No. 570-2012-00486X Agency No. HSUSCG063032009 DECISION On December 30, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's December 2, 2013, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED (1) Whether the AJ's decision finding no discrimination is supported by substantial evidence in the record; and (2) whether the AJ's failure to drawn adverse inference against the Agency for failing to retain selection documents was an abuse of discretion. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Housing Management Specialist at the Agency's Washington, D.C. facility. On July 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when, on May 7, 2009, management failed to select Complainant for a GS-14 Management and Program Analyst position, advertised under Vacancy Announcement Number 09-1646-HQ-SW-M. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and an EEOC Administrative Judge issued a decision without a hearing in favor of the Agency. Complainant appealed that decision and we vacated the agency's decision and remanded the complaint for a hearing. See Complainant v. Dept. of Homeland Security, (USCG), EEOC Appeal No. 0120112890 (October 24, 2011). The AJ held a hearing on February 7 and 8, 2013, and issued a decision on November 14, 2013. In her decision, the AJ found Complainant applied for the position in question, made the best qualified list, but was not selected for an interview. The AJ found that the selecting official was aware of Complainant's prior EEO activity, but that there was no nexus between the nonselection and his previous complaint, which occurred three years prior. The AJ also found the agency articulated legitimate and nondiscriminatory reasons for its actions; namely, that the selectee had more recent, relevant experience relating to the position in question. The AJ found Complainant failed to present evidence which proved the agency's reason for its action was a pretext for retaliation. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant's attorney argues that the AJ erred in ignoring the Agency's destruction of notes taken during the selection process. He further contends that Complainant was more qualified for the position, and that the selecting official influenced the other panel members when it declined to offer Complainant an interview. The Agency did not submit any argument in response to Complainant's appeal. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). After a careful review of the record we find there is substantial evidence in the record to support the AJ's finding of no discrimination. Complainant's prior EEO activity occurred years before the selection at issue, and there is insufficient credible evidence that the selecting official influenced the other panel members when it did not select Complainant for an interview. Complainant did not prove that his qualifications rendered him observably superior to the selectee, nor did he provide any other persuasive evidence of pretext. Although Complainant alleged that the selecting official had previously asked him about his EEO complaint, there was insufficient evidence proving this. With regard to the Agency's failure to preserve its selection documents, we find no clear error on the AJ's part. As an initial matter, we cannot find any request from Complainant to impose sanctions or any Notice to Show Cause. Even if he did, we find the AJ was not compelled to draw an adverse inference.2 The case cited by Complainant dealt with a situation where the Agency failed to meet its burden of production because it only provided subjective reasons for the nonselection, and there was no other objective evidence to support that assessment. Accordingly, the Commission found Complainant was unable to challenge the Agency's reasons for its actions. See Chhe v. Dep't of Housing and Urban Dev., EEOC Appeal No. 0720090008 (Aug. 6, 2010). Here, there was significant corroborated testimony at the hearing as to the reason Complainant was not selected, and that testimony is supported by other documentary evidence in the record, including the applications. In the future, the Agency is reminded that EEOC regulations require that any personnel or employment record made or kept by an employer be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. 29 C.F.R. § 1602.14. Where a charge of discrimination has been filed, the agency is required to preserve all personnel records relevant to the charge until final disposition of the charge. Id. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 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). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) 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. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Pursuant to 29 C.F.R. § 1614.109(f)(3), an AJ may sanction a party for failure to provide requested relevant information, to include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A40114 (August 9, 2006)(citing Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000)). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2014-0799 5 0120140799