MSPB focus

By Neil McPhie

Assuming the worst: ‘Lost’ evidence can lead to adverse inferences

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

The furor that the IRS recently sparked with its claim that tens of thousands of former Exempt Organizations Director Lois Lerner’s e-mails were lost and not recoverable has given lawmakers involved in the tea party probe a taste of the frustration federal employees often experience when fighting adverse actions or discrimination.

Having served as the chairman of the Merit Systems Protection Board (MSPB) and later represented federal employees before the quasi-judicial agency, I have heard my fair share of excuses as to why agencies cannot provide documentation or witnesses during the discovery process. And sometimes agencies do not even go so far as to make an excuse. Depending on the circumstances, the MSPB or Equal Employment Opportunity Commission (EEOC) may draw an “adverse inference” or “negative inference” when an agency fails to provide requested documentation or make witnesses available for disposition.

Federal regulation, for instance, allows the EEOC to sanction uncooperative agencies by drawing “an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information.” This adverse inference does not necessarily turn the withheld information into a smoking gun, but it can significantly damage the agency’s defense.

The U.S. Court of Appeals for the Federal Circuit and MSPB have held that they will refuse to draw an adverse inference when requested information is not provided because it was destroyed as a routine matter of business. For example, in Hildalgo v. Department of Justice (2003), the MSPB refused to draw an adverse inference in relation to an investigator’s notes because “it was his practice to destroy all his interview notes once he had completed his investigatory report.” Similarly, in Pacious v. National Aeronautics and Space Administration (2011), the MSPB declined to draw an adverse inference over the spoliation of a surveillance tape that contained footage of a particular incident. The Board noted that it was not disputed that the agency did not have this surveillance tape when the appellant made untimely requests for it, but there was “no evidence that the agency was dishonest and acted in bad faith by deliberately destroying evidence to thwart his defense.

In contrast, in Kirkendall v. Department of the Army (2009), the Federal Circuit ordered the MSPB to draw a negative inference in regard to application and rating sheets of applicants who responded to an external recruiting bulletin for a position the agency did not offer to the appellant. The agency confessed to destroying these documents, and the appellant claimed they would have been crucial to helping him determine whether he had a claim under the Veterans Employment Opportunity Act (VEOA) or the Uniformed Services Employment and Reemployment Rights Act (USERRA). The appellant argued – and the court agreed with his argument – that “there can be no legitimate excuse for destruction of the documents, as the agency’s own document retention program requires retention of documents that are ‘under litigation,’ as the destroyed documents in this case were, to the knowledge of the agency.” The court held that the agency’s negligence merited adverse inference sanctions.

During his opening remarks to a House Committee on Oversight and Government Reform hearing on the lost Lerner e-mails, Chairman Sen. Darrell Issa said, “you [IRS Commissioner John Koskinen] may say that the IRS has produced thousands of documents…But, of course, it doesn’t matter how large a production you make if the IRS omits the most critical documents.” Getting such “critical documents” for their MSPB or EEOC cases may require some wrangling, and federal employees may find themselves outmatched if they pursue such evidence without the assistance of an attorney. And even if the agency succeeds in destroying or “losing” negative information that could be used to link management to wrongdoing, the MSPB and EEOC can still connect the dots.

Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.

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