Franklin T. Toombs, Sr., Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionDec 1, 2003
05A40064 (E.E.O.C. Dec. 1, 2003)

05A40064

12-01-2003

Franklin T. Toombs, Sr., Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


Franklin T. Toombs, Sr. v. Department of Justice

05A40064

December 1, 2003

.

Franklin T. Toombs, Sr.,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

Agency.

Request No. 05A40064

Appeal No. 07A20064

Agency No. F-99-5323

Hearing No. 120-A1-4157X

DENIAL OF REQUEST FOR RECONSIDERATION

On October 10, 2003, the Department of Justice (agency) timely

initiated a request to the Equal Employment Opportunity Commission

(EEOC or Commission) to reconsider the decision in Frankin T. Toombs,

Sr. v. Department of Justice, EEOC Appeal No. 07A20064 (September

10, 2003). EEOC Regulations provide that the Commission may, in

its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

We note that complainant filed a formal EEO complaint with the agency

on March 15, 1999, alleging that the agency had discriminated against

him on the basis of age (D.O.B. 6/9/51) when, on December 21, 1998,

he was notified that he was not selected for the position of Building

Management Specialist (BMS). At the conclusion of the investigation,

complainant was provided a copy of the investigative report and requested

a hearing before an AJ. The AJ issued a decision

finding that complainant was not discriminated against, as alleged.

However, the AJ did note that on September 12, 2001, he issued a Notice

to Show Cause why sanctions should not be imposed after learning that

audio tapes of the interviews and panel deliberations were purportedly

discarded by the agency's investigator. After examining the agency's

testimony, the AJ determined that there was no evidence that the tapes

were lost due to anything other than careless error. In that regard,

the AJ noted that the agency's acting EEO Officer made a declaration

wherein she commented that she suggested that the agency adopt a policy

that prohibited the release of original audio tapes. To that end, the

AJ ordered that the agency establish a policy concerning the release of

original audio tapes in order to ensure that no future incidents such

as this recur. The agency's final order rejected the AJ's decision,

and the agency appealed the AJ's decision to the Commission.

The Commission's decision found that the AJ's order was appropriate

under the circumstances presented in this case. We found that an agency

policy restricting the release of original audio tapes should ensure that

similar incidents such as that described herein will not reoccur. 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. The Commission found that the AJ's order ensured

compliance with this regulation as it pertains to audio tapes, and is not

unduly harsh so as to result in an inequity. Toombs v. Dept. of Justice,

EEOC Appeal No. 07A20064 (Sept. 10, 2003).

In its request for reconsideration, the agency alleged that the Commission

accept the decision by the Department of Justice's Complaint Adjudication

Office, concluding that the agency not be sanctioned for the loss of the

audio tape at issue. The agency stated that Commission sanctions were

appropriate under circumstances of intentional employment discrimination,

and there was no evidence of discrimination in the instant case.

Further, the agency alleged that it presently has a policy in place which

requires it to maintain all recordings of career board deliberations for

a period of five (5) years. As such, the agency stated that it has a

stated policy which complies with its internal regulatory requirements

regarding maintenance of records.

After a review of the agency's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the request

fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the

decision of the Commission to deny the request. As stated in our initial

decision, 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. See 29 C.F.R. � 1602.14.

Thus, although the AJ found that the agency did not discriminate

against complainant, we found that requiring the agency to develop a

policy regarding concerning the release of audio tapes when the tapes

in the instant case were lost was appropriate. Furthermore, while

the agency may have a policy in place which does what 29 C.F.R. �

1602.14 requires, that policy was clearly not followed in the instant

case regarding preservation of records. Requiring the agency to develop

the new written policy contemplated by the AJ, or to update its current

policy consistent with 29 C.F.R. � 1602.14, regarding the release of

records to complainant, all relevant staff, including, but not limited

to, EEO staff, investigators and management officials responsible for

such audio tapes is appropriate under the circumstances. The decision

in EEOC Appeal No. 07A20064 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

ORDER (CO900)

The agency is ordered to take the following action:

1. Within ninety (90) days of the date this decision becomes final,

the agency shall establish a written policy concerning the release of

original audio tapes which will ensure that audio tapes will not be lost

or destroyed, such as occurred in the incident described herein. The

agency shall provide a copy of the policy to complainant, all relevant

staff, including, but not limited to, EEO staff, investigators and

management officials responsible for such audio tapes.

2. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation, including

a copy of the policy itself, verifying that the corrective action has

been implemented.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

RIGHT TO REQUEST COUNSEL (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

December 1, 2003

__________________

Date