Serita B.,

v. 

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal Nos. 0720140033 
                  01201115321

Hearing No. 470-2008-00147X

Agency No. EEODFS-07-1108-F

DECISION

On December 15, 2010, an EEOC Administrative Judge issued a decision, finding that the Agency did not discriminate against Complainant on the basis of age when (1) it did not select her for the position of Revenue Officer because she performed poorly during the interview; and (2) the Agency used her initial interview scores when she reapplied for the Revenue Officer position less than one year after her initial interview outing.  However, the AJ found a recordkeeping violation when members of Complainant's interview panel destroyed the notes Complainant had jotted down during the interview and did not provide them to Human Resources, in contravention of the Agency's own policies and procedures.  The AJ ordered the Agency to communicate in writing and to train all managers and supervisors who participate in selections to retain all interview notes.

Neither party was satisfied with the AJ's decision.  The Agency issued a January 28, 2011 final order, adopting the AJ's finding of no age discrimination, but rejecting the AJ's finding of a recordkeeping violation.  The Agency filed an appeal, requesting that the Commission affirm its rejection of the AJ's finding of a recordkeeping violation.  Meanwhile, Complainant filed her own appeal, contending that the AJ erred in finding no age discrimination.  The Commission accepts the appeals pursuant to 29 C.F.R. § 1614.405(a).  For the following reasons, we uphold the AJ's decision, and therefore AFFIRM in part, and REVERSE in part, the Agency's final order. 

ISSUES PRESENTED

1. Was there substantial evidence in the record to support the AJ's findings that the Agency did not discriminate against Complainant on the basis of age when (a) it did not select her to be a Revenue Officer because she interviewed poorly and received low interview scores, and (b) used those interview scores when she reapplied for the position less than a year later?

2. Did the Agency violate the Commission's recordkeeping regulations when it destroyed Complainant's interview notes?

3. Did the AJ abuse his discretion in refusing to draw an adverse inference against the Agency as a sanction for destroying Complainant's interview notes, and instead ordered the Agency to communicate with and train all of its managers and supervisors, who participate in selections, to retain all interview notes?

BACKGROUND

In 2007, Complainant applied for the position of Revenue Officer for the Louisville, KY office, under vacancy announcement 07OG3-SBE0050-1169-07-AS.  Revenue Officers collect taxes that are delinquent and have not been paid to the Internal Revenue Service, and secure tax returns that are overdue from taxpayers.  Part of the investigative process typically requires Revenue Officers to conduct face-to-face interviews with taxpayers and their representatives.  

To ensure that potential Revenue Officers are capable of conducting these face-to-face meetings, the Agency typically interviews applicants for the position, poses various hypothetical scenarios for them to respond to, and evaluates their verbal responses.  As part of the interview process, the Agency gives interviewees extra sheets of paper to take notes about the hypothetical scenarios so they can formulate their answers.  After the interview, the Agency collects the notes, in order to prevent interviewees from sharing with others the hypothetical scenarios being asked.

On August 1, 2007, two Agency officials, a territory manager and a supervisory revenue officer, interviewed Complainant for the position and asked her to respond to various hypothetical scenarios.  They gave her extra sheets of paper to take notes during the interview, and after it was over, they collected Complainant's notes and destroyed them.  On that same day, they hand-wrote and signed a summary narrative of Complainant's interview performance: 

Candidate rambled in giving most responses, thinking aloud, giving various solutions and often changing her answers.  Candidate did not consider the [taxpayer's] point of view when responding and did not indicate appropriate empathy for [taxpayers] by recognizing and discussing their personal & financial situations.  Candidate did not recognize the possibility that the manager could be involved in the ethical situation and did not say she would report the incident to a higher authority.  Decision making was poor, with answers changed at the last minute in several questions.  Candidate also failed in most instances to consider a wide range of resolution alternatives and give appropriate justification for such.  Report of Investigation (ROI), Exhibit (Ex.) 11, at 119.

The territory manager rated Complainant on various competency factors on a scale of 1 to 5: oral communication (3); conflict management (2); integrity and honesty (3); decision making (2); influencing and negotiating (2); planning and evaluating (3).  He recommended that Complainant not be selected because her average score for the competency factors was below 3.0.  Id. at 118.  

The Agency eventually hired three people, aged 31, 49, and 53.2  The 31-year old selectee was interviewed by the territory manager and another Agency official.  The territory manager rated the 31-year old selectee as follows: oral communication (3); conflict management (4); integrity and honesty (3); decision making (3); influencing and negotiating (4); planning and evaluating (5).  In their summary narrative about their interview with the 31-year old selectee, the interviewers wrote:

Candidate spoke in clear, concise sentences, with confidence, but did not always fully explain her positions or justify her decisions.  She demonstrated that she would be persistent in seeking information needed to protect the Govt's interest, as well as willingness to use [endorsement] when warranted.  She showed empathy for taxpayers and their personal situations and she also recognized situations in which she needed to withdraw for personal safety.  She did not consider a wide range of options in her decision making and did not recognize the ethical dilemma in #2.  ROI, Ex. 11, at 144.

The selecting official did not select Complainant for the position.  When Complainant asked why she had not been selected, the Agency explained in September 2007 it was because she did not get a passing rating on the interview.  The Agency also notified Complainant that her interview evaluation results would remain effective for 12 months.

Complainant disagreed with the interviewers' characterization and assessment of her interview performance.  She felt that she had done well, considering that the hypothetical scenarios were identical to those posed during the written application process, and she had orally answered those questions in a similar way to her written responses.  

On November 6, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (50) when:  

1.	it did not select her for the position of Revenue Officer, Vacancy Announcement number 07OG3-SBE0050-1169-07-AS;

2.	it counted her interview scores for any reapplication for one year after her interview for the position of Revenue Officer, Vacancy Announcement number 07OG3-SBE0050-1169-07-AS.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).  Complainant timely requested a hearing. The AJ held a hearing and on December 15, 2010, issued a decision.  

AJ's Decision

      a. Age Discrimination

For claim 1, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for not selecting Complainant.  The interviewers determined she had done poorly in the interview, giving her low scores for rambling, thinking out loud, giving various solutions to posed situations, and often changing her answers.  In contrast, a 31-year old selectee was chosen because she scored higher during the interview (a total score of 22 compared to 15 for Complainant).  The summary narrative for this selectee indicated that she was clear, concise, and confident during the interview.

The AJ found that Complainant did not present enough evidence to show that her performance during the interview was plainly superior to the 31-year old selectee, and thereby establish pretext.  Although the AJ found certain aspects of the interviewers' testimony to be disingenuous (that they did not know Complainant prior to being interviewed, even though she was the wife of the retired director of the Agency's Louisville office, who had met the interviewers at various social functions, and whose sister worked as a secretary for one of the interviewers; they did not know her age, even though she looked age appropriate at the hearing; and the territory manager stating that the decision to not select Complainant was made by other personnel, even though he admitted that his recommendation against further consideration was decisive), the AJ found that such prevarications did not affect the outcome of the case.  

For claim 2, the AJ found that Complainant failed to establish a prima facie case of disparate treatment.  The AJ found that the Agency informed all applicants, who were interviewed and not selected, that their interview recommendations would remain effective for 12 months.  The Agency did not prohibit applicants who were interviewed from reapplying.  Rather, it did not give these applicants new assessments or interviews until after 12 months had passed.  Because Complainant was treated the same as other similarly situated job applicants, the AJ found no discrimination.

      b. Recordkeeping Violation

The AJ determined that the Agency violated the recordkeeping regulations when the Agency's interviewers destroyed Complainant's interview notes.  The AJ found that the Agency had a policy of retaining all documents from the interviews and trained its interviewers to retain all documents.  Specifically, the Agency trained interviewers to allow candidates to write on the interview materials, collect the interview materials from the interviewees at the conclusion of the interview, secure the materials in a locked cabinet, and then provide all the documents to Human Resources.  The training did not instruct the interviewers to shred any of the materials. 

The AJ found that the interviewers in this case took the notes made by Complainant, destroyed them, and did not provide them to Human Resources, contrary to the Agency's policy and training instructions.

While the AJ acknowledged that the managers in this case did not use interviewees' notes in their discussions or recommendations, the AJ reasoned that such notes could still be relevant in nonselection cases, for they may shed light on the decision-making process.  "For instance, if one of the interviewers made an inappropriate statement that was noted by the interviewee, the destruction would serve to obfuscate the actual process."

The AJ found that the Agency violated 29 C.F.R. § 1602.14 by failing to retain the interviewees' notes from the selection of the Revenue Officers. The AJ, however, declined to draw an adverse inference as a sanction, because the other evidence presented at the hearing, particularly the testimony, notes, and summary narratives of the interviewers, were sufficient to show that Complainant was not selected for non-discriminatory reasons.  In addition, Complainant did not demonstrate that her destroyed interview notes would state anything to establish pretext.  Therefore, the AJ declined to draw an adverse inference from the destruction of the interview notes.

The AJ ordered the Agency to communicate in writing to all managers and supervisors who participate in selections the requirement to retain all interview notes, in accordance with 29 C.F.R. § 1602.14.  The AJ also ordered the Agency to include a provision regarding the requirement to retain all interview notes in accordance with 29 C.F.R. § 1602.14 in all EEO training given to managers and supervisors who participation in selections.

The Agency subsequently issued a final order, adopting the AJ's finding of no age discrimination for claims 1 and 2.  But it rejected the AJ's finding of a violation of the recordkeeping requirements.  Complainant cross-appealed, maintaining that the AJ erred in finding no age discrimination.

CONTENTIONS ON APPEAL

Agency's Contentions

The Agency argues that the AJ erred in finding that it violated the recordkeeping requirements when it destroyed Complainant's interview notes.  First, the Agency asserts that interviewee notes do not fall under the plain language of 29 C.F.R. § 1602.14, which requires the preservation of any personnel or employment record that the employer "made or kept" for one year from the date of the personnel action or the date the record was made.  Because the contents of the interviewees' notes are made by the interviewees, they cannot be considered to be "made or kept" by the employer, under 29 C.F.R. § 1602.14.

Second, while the recordkeeping regulations specify that the Agency should keep "other records having to do with hiring," the Agency maintains that the interviewees' notes were "personal notes" that were not relied on by the Agency during the decision-making process or used as a means of determining Complainant's knowledge about taxes or finance.  Therefore, such "personal notes" should not be considered as "other records having to do with hiring."

Third, the Agency contends that "personal notes" do not fall under the types of records listed under the recordkeeping requirements of the Age Discrimination in Employment Act (ADEA), 29 C.F.R. § 1627.1, such as job applications; resumes; test papers completed by applicants; and any other form of employment inquiry submitted to the employer in response to his advertisement, including records pertaining to the failure or refusal to hire.

Fourth, the Agency contends that the AJ misrepresented the Agency's recordkeeping policy, by relying on the Agency's training slides, which used general terms for interview materials and did not specify which ones should be kept.  Rather, the overwhelming evidence showed that it was not the Agency's policy or practice to retain the interviewees' personal notes.

Finally, the Agency maintains that requiring the Agency to keep Complainant's "personal notes" would contravene the Office of Management and Budget's Federal Information Policy, which requires that all information collected by agencies be "necessary for the proper performance of the functions of the agency, including that the information has practical utility."  Because the notes that Complainant took during the interview were neither necessary to document the Agency's hiring decision, nor of practical utility to the Agency's determination of whether to recommend or select Complainant for the position, the Agency was not authorized under the Federal Information Policy or OPM regulations to retain them.  Absent approval from the Office of Management and Budget, the Agency maintained the Commission does not have the authority to require agencies to keep the interviewees' notes as "collected information."


Complainant's Contentions

Complainant contends that there was no substantial evidence to support the AJ's finding that the Agency did not discriminate against her based on her age when it did not select her for the position at issue.  The only evidence that the AJ relied on was the subjective representations of Complainant's interview performance by the two interviewers. But their subjective representations, according to Complainant, should have been undermined and discounted because the AJ found the interviewers to not be credible on other issues and they had destroyed relevant and probative evidence in contravention of administrative regulations.

In contrast to the testimony of the interviewers, Complainant maintained that she presented credible evidence that she interviewed well in that (1) she was very competent and poised when testifying during the administrative hearing; (2) she later successfully interviewed and was selected for employment by the Census Bureau; and (3) an Agency witness testified about Complainant's excellent personal skills.

Moreover, Complainant maintains that she had superior qualifications compared to the 31-year old selectee, based on her education, credentials, work experience, and test scores.  Complainant had a bachelor's degree in economics, and had vast experience in a number of jobs, including being a mortgage loan underwriter, office and account manager, bank teller, and municipal bonds trader.  In contrast, the 31-year old selectee had only a community college associate's degree, and limited relevant work experience as a claims representative, maintenance administrator, data entry operator, and operations analyst.

Complainant believes that her responses during the interview were plainly superior to the selectee's. Specifically, in response to question 5 on collecting payment from a family with a catastrophically ill child, the selectee stated, according to the interviewers' summary narrative, that the "[Taxpayers] get insurance" and that they should "cash stock in" and needed to sell real estate.  Complainant submits that the selectee's response showed a lack of sympathy and knowledge.  Complainant maintains that she drew upon her education and experience to appropriately respond to the question and issues presented; in contrast, the selectee failed to understand that one cannot simply purchase health care coverage for a child with a pre-existing condition nor would new or additional coverage pay for prior medical invoices.  Further, Complainant argues that the sale of stock would create an additional tax burden relative to capital gains, and the sale of the family's home would likewise increase their tax burden if the monies from the sale were not invested in another residence.

Complainant also maintains that the Agency failed to develop an appropriate factual record for a reasonable fact finder to draw conclusions as to whether age discrimination occurred. Specifically, Complainant asserts that the "comparative data" in the record only showed the ages of the applicants who were actually hired by the Agency.  What is missing is the ages of those who applied for the position, were deemed qualified based on their resumes and test scores from the written examination, but were not selected.  Such data would have allowed a fact finder to determine if the two interviewers in this case had a tendency to "not recommend" qualified applicants over the age of 40.  Complainant also maintains that the record should have included information about the hiring of 5 revenue officers in 2009 for the Louisville, KY facility.

Finally, Complainant contends that the AJ erred in failing to (1) draw an adverse inference that Complainant had interviewed well, as a sanction for the Agency destroying her interview notes; (2) determine that the interviewers were not credible in their subjective representations of Complainant's interview performance; and (3) ultimately find pretext.

ANALYSIS AND FINDINGS

a. Claims 1 and 2

Under 29 C.F.R. § 1614.405(a), the Commission will uphold an AJ's post-hearing factual findings if they are 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).  But 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. (November 9, 1999).

Upon review, we find that there was relevant evidence in the record to adequately support the AJ's finding that the interviewers did not recommend Complainant for non-discriminatory reasons: they felt she rambled, thought out loud, gave various solutions to posed situations, and often changed her answers, during the interview, qualities that were undesirable for a job that often called for face-to-face interviews with taxpayers and their representatives.  

Such relevant evidence in the record included the hand-written summary narrative signed by the two interviewers on the day they interviewed Complainant, in which they wrote that Complainant "rambled in giving most responses, thinking aloud, giving various solutions and often changing her answers."  ROI, Ex. 11, at 119.  

In addition, Complainant's own account of the interview corroborates at least some of the observations made by the interviewers.  For example, in an October 3, 2007 written statement to the Agency, Complainant recalled that she "thought out loud" in answering the third hypothetical scenario:

Question 3: A couple owes personal income taxes. (??? Exact amount) The wife owns a business and her business taxes are current. The husband owns a business and his business owes taxes (???? exact amount). The couple owns their home. I do not remember the amount of their personal income and expenses. They have rental property which generates approximately $1200 per month income. The couple cannot refinance the properties because of their credit score. The husband has stock left to him in an inheritance from a deceased uncle which is worth 1,000,000. They have a child who has serious medical expenses. The amount needed for the child was over $900.000. The couple is requesting that I go away and return in nine mouths to resolve this. What would I do?

My response: Personal income taxes are a static tax and a deferred payment is the appropriate action until the child's medical attention is completed. The child's welfare and health expenses are the first priority and the couples request is legitimate reason for deferral. I would defer the income tax for the nine months. The husband's business taxes may be employment taxes which could incur larger tax liabilities if he is having difficulty paying or staying current on payments.

I ask a question at this point? "How long can the employment tax be deferred in this type of situation?"

[One interviewer replied]: "Just go with what you have in front of you"

My Response: Gentlemen, this is a difficult situation and I am going to think out loud on this one for a moment.  I am not familiar with the time frame on past employment taxes.  In a previous job where I paid all of our employment and business taxes, I made sure they were always paid on time.  There are stiff penalties for failure to pay employee taxes.  Question should be addressed before determining the proper action required: Is his company generating a profit? If not, is this a short term or long term problem? Is the business paying the current employment taxes? Is the amount owed from another period? A possible solution for his company taxes is to put a lien on the rental properties or a levy on the stocks to secure payment resolution at another date. The couple need the income from the rents for their expenses and the equity cannot be refinanced. But they may need the stocks to make medical payments for the child.

Ok, my answer is the tax payers need to take care of the child first and we would not hinder this in any way. I have no problem deferring the income tax portion of their liability but I am not comfortable with employment taxes continuing to incur. I would investigate his business records to determine what I would need to do to make my next decision on the business taxes.

We acknowledge that the AJ found the interviewers to be disingenuous in their testimony about not knowing Complainant before the interview, not knowing her approximate age, and the role they played in the decision-making process.  But the discrediting of a witness on one issue does not require an administrative judge to discredit the witness on all other issues.  See, e.g., Hillen v. Dep't of Army, MSPR 453 (1987).  Here, the AJ was free to rely on other relevant evidence in the record, including the interviewers' summary narratives and Complainant's account of the interview, to find that the interviewers did not recommend Complainant because they felt she had rambled, thought out loud, and otherwise performed poorly in her interview.

Complainant has not presented any documents or other objective evidence to show that she was plainly superior in her interview compared to the 31-year old selectee.  It is not for us as a reviewing appellate body to make assessments and factual determinations on Complainant's demeanor during the hearing before the AJ (whether she appeared to be competent and poised when testifying).  Nor do we find persuasive the fact that she subsequently successfully interviewed with a different agency for a different job, and that a witness testified that Complainant had excellent overall personal skills, since it was her interviewing skills and responses to the various hypothetical questions that are at issue here.

We also determine that the record was adequately developed for the AJ to make a determination whether there was discrimination for this particular nonselection.  While the age of applicants for other vacancies in other years may have been relevant had Complainant filed a class complaint, we do not see how such a lack of information harmed Complainant in proving discrimination for this particular nonselection in September 2007.

As for claim 2, Complainant presents no argument indicating that the AJ erred in determining that the Agency treated Complainant the same as other applicants who unsuccessfully interviewed for the position.  Therefore, we find that the AJ did not err in finding no discrimination for claim 2.

b. Recordkeeping Violation

	i. Violation

Section 7 of the ADEA3 empowers the Commission to require employers to keep records necessary or appropriate for the Act's administration.  Employers often use advertisements or some other form of notice of existing or future job openings, and receive job applications, resumes, or some other form of employment inquiry in response. If an employer does this in the regular course of business, then under the ADEA regulations at 29 C.F.R. § 1627.3, the employer must keep both the advertisement or notice and the responses for one year from the date of the personnel action, as well as any "records pertaining to the failure or refusal to hire any individual."4 

Moreover, when an enforcement action is commenced under section 7 of the ADEA regarding a particular applicant or employee, employers are required to retain any of these records that are relative to such action.  29 C.F.R. § 1627.3(b)(3).

Here, the Agency provided interviewees with extra paper and the means for contemporaneously recording their thought processes and perceptions during the interview.  When parties or witnesses make notes, prepare memoranda, or otherwise make a written record of past events, these records of past events are important in investigations and especially in preparation for hearings, which may not occur until years after the event.  They are important because they may act as reminders for the witnesses who can recall the incident in detail after referring to the written record of it.  In this case, the witness' testimony is the most reliable evidence of what happened and the writing is only a refresher of his or her memory; the witness is testifying from his or her own present knowledge of the facts. Therefore, copies of any such notes should be obtained and it should be determined from the witness whether he or she has an independent recollection of the events after referring to the notes.
        
In other situations, the individual may not recall the events from the notes and may not be able to testify to what happened without relying on the written record. In this situation, the individual does not have an independent memory of the event in spite of being able to refer to the notes.  If that occurs, the notes themselves may become evidence of the event they describe.  EEOC Compliance Manual, Vol. 2, Sec. 602-Evidence.  We therefore disagree with the Agency's contention that an applicant's interview notes cannot constitute relevant documentary evidence in a nonselection case. 

Our precedential cases establish that under the recordkeeping requirements, an agency must preserve relevant records that are within the agency's control.  See, e.g., Grimes v. General Services Admin., EEOC Request No. 05900374 (July 16, 1990) (finding that the agency violated the recordkeeping requirements when the agency failed to produce a selectee's application that was within the agency's control)  Here, we find that the Agency exercised complete dominion over the interviewees' notes during the interview process.  The Agency provided the interviewees with the paper and authorized them to record their thoughts and observations down during the interview.  And the Agency subsequently confiscated the interviewees' notes after the interview was over.  Because the Agency prevented the interviewees from taking these notes with them after the interviews, it cannot be said, as the Agency asserts, that these notes were the "personal notes" of the interviewees.  Rather, it is clear that these notes were within the Agency's control to authorize, to collect, and ultimately in this case, to destroy.

Because the interviewees' notes were written records of past events that were at issue in this nonselection case, and because the interviewees' notes were within the Agency's control, we find that these notes constitute "records pertaining to the failure or refusal to hire" under the ADEA's recordkeeping requirements, records that the Agency should have preserved.  Therefore, we determine that the AJ did not err in his ultimate conclusion that the Agency violated the EEOC's recordkeeping requirements by destroying the interviewees' notes.  

	ii. Appropriate Remedy

When an agency fails to meet its duty to maintain or provide upon request crucial information in a case, an AJ has the discretion to determine on a case by case basis whether it is appropriate to draw an adverse inference that if the relevant information had been provided, it would have been favorable to the complainant and unfavorable to the agency.  See, e.g., Blanco v. Environmental Protection Agency, EEOC Appeal No. 01A52674 (Aug. 30, 2005).

In some cases where an agency has failed to preserve records, the Commission has declined to draw an adverse inference.  See id.  Here, we find that the AJ did not abuse his discretion in declining to draw an adverse inference against the Agency for failing to preserve Complainant's interview notes.  Complainant has not given us reason to believe that the notes would show that she answered the hypothetical questions in a manner that would contradict the interviewers' accounts.  What one takes down in notes does not necessarily reveal the manner in which one verbally answered the interview questions.

Finally, we determine that the AJ did not abuse his discretion in ordering the Agency to communicate with and train all of its managers and supervisors, who participate in selections, to retain all interview notes.  See, e.g., Toombs v. Dep't of Justice, EEOC Request No. 05A40064 (Dec. 1, 2003) (finding the AJ acted appropriately in requiring the agency to develop and disseminate a written policy for releasing audio tapes of interviews and panel deliberations when the tapes in the instant case were lost, even though the AJ found that the agency did not discriminate against the complainant); Garcia v. Dep't of Homeland Security, EEOC Appeal No. 01A32050 (Jan. 7, 2005) (finding the agency violated the recordkeeping requirements and ordering the agency to provide training to the responsible officials in EEOC regulations concerning the maintenance of records).



CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part, the Agency's final order regarding the finding of no age discrimination for claims 1 and 2.  However, we REVERSE in part the Agency's final order regarding the recordkeeping requirements, and find that the Agency violated the recordkeeping regulations under the ADEA when it destroyed the interviewees' notes.  We remand this portion of the case to the Agency to take remedial actions in accordance with this decision and the Order below.

ORDER

1. Within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall communicate in writing to all managers and supervisors who participate in selections the requirement to retain all interview notes in accordance with 29 C.F.R. § 1627.

2. Within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall include in all EEO training given to managers and supervisors, who participate in selections, a provision on the requirement to retain all interview notes in accordance with 29 C.F.R. § 1627.

3. Within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall provide training in EEOC regulations concerning the maintenance of records under 29 C.F.R. § 1627, to the territory manager, the supervisory revenue officer, and other Agency officials who destroyed interviewees' notes during the selection process for vacancy announcement 07OG3-SBE0050-1169-07-AS.  Within thirty (30) calendar days of the date the training is completed, the Agency shall submit to the Compliance Officer appropriate documentation evidencing completion of such training.

4. Within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the Agency officials who destroyed interviewees' notes during the selection process for vacancy announcement 07OG3-SBE0050-1169-07-AS.  The Commission does not consider training to be disciplinary action.  The Agency shall report its decision to the compliance officer.  If the Agency decides to take disciplinary action, it shall identify the action taken.  If the Agency decides not to take disciplinary action, it shall set forth the reason for its decision not to impose discipline.  If the Agency officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates. 

The Agency shall provide a report of its compliance with paragraphs 1 to 4 of this Order to the Compliance Officer, as provided in the statement titled "Implementation of the Commission's Decision."  The report shall include supporting documentation, verifying that the Agency has implemented the above corrective actions.  Copies must be sent to Complainant.
POSTING ORDER (G0610)

The Agency is ordered to post at its Louisville, KY facility copies of the attached notice.  Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted.  The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.  The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint.  29 C.F.R. § 1614.501(e).  The award of attorney's fees shall be paid by the Agency.  The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final.  The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory.  The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.  The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant.  If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order.  29 C.F.R. § 1614.503(a).  The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement.  See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).  Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action."  29 C.F.R. §§ 1614.407 and 1614.408.  A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).  If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated.  See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 9-18 (November 9, 1999).  All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.  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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security.  See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within the sole discretion of the Court.  Filing a request for an attorney with the Court does not extend your time in which to file a civil action.  Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations


_7/30/14_________________
Date


1 The appeal listed under docket number 0120111532 is being closed because both parties filed appeals in the present case.  Complainant's appeal was docketed as 0120111532, and the Agency's appeal has been docketed as 0720140033.  For purposes of efficiency, the Commission is administratively closing 0120111532, and will address both parties' arguments in EEOC Appeal No. 0720140033.  All future correspondence in this matter should reference EEOC Appeal No. 0720140033.

2 The Agency selected a fourth applicant, but he declined the job offer and his age is unknown.
3 Although the AJ found that the Agency violated the recordkeeping requirements of 29 C.F.R. § 1602.14 under Title VII and the ADA, we find it more appropriate to analyze this issue under the ADEA's recordkeeping regulations at 29 C.F.R. § 1627.
4 Similarly, if an employer "makes, obtains, or uses" records regarding any of the following in the regular course of business, it must keep them for one year from the date of the relevant personnel action: employment decisions such as promotion, demotion, transfer, selection for training, layoff, recall, or discharge; job orders submitted to an employment agency or labor organization; tests; physical examinations; advertisements or notices to the public or employees relating to job openings, promotions, training programs, or opportunities for overtime.  See 29 C.F.R. § 1627.3(b).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013



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