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Adverse Inference for Failure to Produce Documents

The EEOC recently upheld an administrative judge’s drawing of adverse inferences against the agency due to its failure to produce work assignment logs and its records retention policy. Butler v. Department of Homeland Security, EEOC Appeal No. 07200900010 (5/27/10). The EEOC also affirmed the AJs’ decisions that the complainant was subjected to sex and age discrimination when she was consistently given work assignments causing her to lift bags in excess of her restrictions which resulted in injuries and led to her termination.

The complainant, a Transportation Security Screener with a disability (shoulder and arm injuries), was given work assignments that resulted in a number of injuries and her eventual termination. The AJ assessed sanctions against the agency for failing to preserve its work assignment logbook and to submit information concerning its records retention policy after granting a motion to compel discovery responses. The adverse inference was that the missing work assignments would have shown that the complainant was given “more onerous and burdensome work assignments” than her younger male colleagues. As the agency was precluded from showing that the complainant’s assignments were not more onerous, it could not offer a legitimate explanation for the work assignments which led to the complainant’s termination.

In an interesting twist, the case was reassigned to a second AJ after the first AJ had expanded the claim to include a hostile work environment. The second AJ upheld the rulings and sanctions and added an adverse inference of age and disability discrimination. The complainant was awarded $45,000 in compensatory damages and loss of future earnings and benefits as she was unable to return to work due to her disability.

In its appellate decision, the Commission upheld the AJs’ rulings, finding that the agency was on notice of the allegation of discriminatory work assignments but had narrowed its definition of the complaint. However, the EEOC limited the award of back pay and benefits to five years, the length of the complainant’s temporary position, limited future pay and benefits to the date of her intended retirement and ordered an offset for her receipt of disability retirement benefits.