Shredded Interview Notes Block Labor Dept. Exit From Bias Case

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By Lawrence E. Dubé

The Labor Department can’t get out of a labor economist’s race and sex discrimination case against the agency.

The department destroyed notes that might have supported Kenneth Elliott’s claims under Title VII of the 1964 Civil Rights Act, the U.S. District Court for the District of Columbia said.

The DOL argued that it acted reasonably in discarding the notes two years after it denied Elliott a promotion and gave it to another employee. However, the court said the agency had a duty to retain records as long as litigation was “reasonably foreseeable.” The agency knew there was a race and sex discrimination charge before it destroyed the notes, and its action was unreasonable, the court said.

Elliott didn’t claim that destroying the records violated any law or regulation, and the DOL didn’t argue that any specific rule authorized destruction of promotion-related documents. But the agency’s action was out of step with the government’s advice to private employers, unions, and employment agencies. The Equal Employment Opportunity Commission, for example, routinely advises parties charged with violations of Title VII and other laws that they should retain all employment records “relating to the issues under investigation.”

Official Shredded Interview Notes

Elliott is a Bureau of Labor Statistics employee who claims he was unlawfully denied promotion from GS-13 to GS-14 several times. Judge Rudolph Contreras dismissed most of the claims, but he allowed Elliott to move forward on the claim that he was denied promotion to a branch chief position.

A DOL official who interviewed Elliott and other candidates for the branch chief job shredded her notes when she retired from the agency. Contreras said a reasonable jury would likely consider Elliott’s interview an important episode, and it might infer the notes would have supported the economist’s race and sex bias allegations.

Contreras stressed that while a jury would be justified in making such an “adverse inference,” he was not suggesting that it must or should do so.

Donald M. Temple, who represented Elliott, told Bloomberg Law “our spoliation claim stuck” and was important in defeating the DOL’s bid to dismiss the labor economist’s strongest claim.

Justice Department attorneys represented the Secretary of Labor. They didn’t immediately respond to a request for comment on the decision.

The case is Elliott v. Acosta , 2018 BL 27597, D.D.C., No. 15-1737 (RC), 1/26/18 .

To contact the reporter on this story: Lawrence E. Dubé in Washington, D.C. at ldube@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.

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