05A40064
12-01-2003
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