record spoliation

What is the name of your state? VA

Hello all,

Does anyone have any experience with spoliation of records regarding an EEO charge? I'm wondering: if there's evidence of spoliation (on the company's end), will the EEO pursue this particular aspect of the charge? Or is that out of its jurisdiction?

Thanks,
tboy74

I think there are several questions that have to be answered first.

1. Is the EEOC actually pursuing litigation on your behalf or are they only investigating your complaint? In the great majority of situations, the EEOC issues a "right to sue" letter and does not litigate the claim themselves.

2. Has the employer's duty to preserve evidence even been established?

3. Has it been established that the employer did preserve evidence and then negligently discarded it?

Thanks for your response

Hi, thanks for your response. Below are the answers,

Beth3 said:

I think there are several questions that have to be answered first.

1. Is the EEOC actually pursuing litigation on your behalf or are they only investigating your complaint? In the great majority of situations, the EEOC issues a "right to sue" letter and does not litigate the claim themselves.

2. Has the employer's duty to preserve evidence even been established?

3. Has it been established that the employer did preserve evidence and then negligently discarded it?

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1. *Answer: They are still investigating. And actually, they (EEOC) remanded the case to a local agency, who has an agreement with the EEOC to investigate cases that arise in its jusrisdiction. So, the local agency is continuing the investigation on behalf of the EEO as well as investigating charges related to local laws.

I know it's rare to have a finding in the complaintant's favor and even more rare for the EEO (or other governmental agencies, as in this case) to pursue subsequent litigation in court. However, I think it's a very high possibility they are going to find in my favor, though I would be surprised if they decided to litigate on my behalf if conciliation failed.

2. *Answer: I believe so. I previously filed an internal complaint and discussed filing an EEO charge and possible litigation a few years ago (within the 3-year time-frame). It's my understanding that companies are to preserve all records of investigations from the point at which it became evident that they could possibly be involved in litigation (for at least 3 years).

Also, some of the documents missing are requests for reasonable accomodations/doctors letters, etc.

3. *Answer: I have written receipts from company personnel that they received the documents (and my doctors have records of speaking to them as well as records of giving the letters to me - I checked with them). I also have evidence from them stating they don't know what happened to the now missing information (and pointing fingers at other people in the company who are now gone).

What do you think?

Thanks again,
tboy

I'm not sure that I understand your question or its context.

If EEOC is processing a charge and has requested that the employer provide certain records, either through a request for information or a subpoena, and the employer is unable to provide the records because they have been destroyed, EEOC will probably ask for an explanation of the destruction. EEOC's regulations require employers to keep certain types of documents for specific periods and its notice of a charge to an employer includes a requirement that the employer must preserve relevant records. It will also look at the employer's retention policies and practices. What EEOC does in such situations depends upon a number of factors, including the actual harm resulting from the destruction of the records and whether it was willful. The missing records might not be critical to the processing of the charge.

However, it's unlikely that EEOC will pursue an employer for simply a recordkeeping violation absent an allegation of illegal discrimination.

tboy74 said:

I previously filed an internal complaint and discussed filing an EEO charge and possible litigation a few years ago (within the 3-year time-frame). It's my understanding that companies are to preserve all records of investigations from the point at which it became evident that they could possibly be involved in litigation (for at least 3 years).

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To which 3 year time frame are you referring? And, what law or regulation requires the preservation of investigation records for at least three years?

Nonetheless, since EEOC is not processing your charge, you need to ask the agency that is processing it, how it views destruction of records.

mitousmom said:

I'm not sure that I understand your question or its context.

If EEOC is processing a charge and has requested that the employer provide certain records, either through a request for information or a subpoena, and the employer is unable to provide the records because they have been destroyed, EEOC will probably ask for an explanation of the destruction. EEOC's regulations require employers to keep certain types of documents for specific periods and its notice of a charge to an employer includes a requirement that the employer must preserve relevant records. It will also look at the employer's retention policies and practices. What EEOC does in such situations depends upon a number of factors, including the actual harm resulting from the destruction of the records and whether it was willful. The missing records might not be critical to the processing of the charge.

However, it's unlikely that EEOC will pursue an employer for simply a recordkeeping violation absent an allegation of illegal discrimination.

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Yes, in a nutshell, that is what is happening. Records that have been requested are "missing." The records are germane to the charges. The documents corrorborate my position.

Thanks,
tboy

mitousmom said:

To which 3 year time frame are you referring? And, what law or regulation requires the preservation of investigation records for at least three years?

Nonetheless, since EEOC is not processing your charge, you need to ask the agency that is processing it, how it views destruction of records.

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Though not specifically related to employment discrimination, Rule 17a-4 of the SEC Act mandates that SEC-regulated companies retain emails for at least 3 years.

But with regards to litigation and as explained by the court in both Zubulake IV and Zubulake V, a party that "reasonably anticipates" litigation must suspend its regular policies and put in place a "litigation hold" for relevant documents. I thought I had read the litigation hold period is up to 3 years, but I could be mistaken.

The agency did explain that anything related to federal laws that are watched over by the EEOC are handled in the same manner with which the EEOC would handle. It's more like the EEOC is using the people-power of another agency.

Thanks,
tboy

EEOC has no authority to enforce SEC regulations, so those regs wouldn't apply in an employment discrimination matter. And Zubulake was a NY District Court ruling and isn't controling in VA. Further, as I recall, Zubulake failed to preserve documents as required by EEOC's notice to them that a charge had been filed.

Ultimately, it will be up to the local agency processing your charge to determine what weight it will give to any missing documents.

mitousmom said:

EEOC has no authority to enforce SEC regulations, so those regs wouldn't apply in an employment discrimination matter. And Zubulake was a NY District Court ruling and isn't controling in VA. Further, as I recall, Zubulake failed to preserve documents as required by EEOC's notice to them that a charge had been filed.

Ultimately, it will be up to the local agency processing your charge to determine what weight it will give to any missing documents.

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Understood. I was wondering if the EEOC actually had authority to find or litigate spoliation charges if it believed spoliation took place. For example, when the SEC finds spoliation during an investigation, it can (and does) turn to the DOJ to prosecute.

In terms of the weight spoliation is given to a discrimination and/or retaliation finding, have you had any experience with this? I realize its up to the agency investigating for my particular charges, but I am curious if anyone else has had experiences with how the EEOC (or a court) has weighed evidence destruction?

Thanks,
tboy74