FDIC CLOBBERED FOR LACKING CREDIBILITY
FDIC management has been ordered to rehire a former employee retroactively to late 2000. KAAAA-POW for management and KAH-CHING for the employee. EEOC found that management repeatedly lacked credibility when it tried to explain why it missed a deadline by 862 days.
Twelve years ago a senior attorney at FDIC’s Hartford office filed an EEO complaint alleging he was not reassigned to another position at his Grade 14 level because of his race, gender and age. He was 65 and when management then closed the Hartford office he had no choice but to retire. The Agency finished the investigation in January 2001, but consistently refused to give the employee a copy. When the employee requested an EEOC hearing in late 2002, EEOC ordered FDIC to give him a copy of the investigation. And that is where FDIC just started making up the facts. It told EEOC it would not release the file because of another complaint the employee had filed with MSPB. The only problem with that explanation was the employee never filed such a complaint. (See Alan Adkins v. Sheila Bair, Chair, FDIC, EEOC Appeal No.0720080052.)
When the EEOC judge found out about this fiction, FDIC was sanctioned on the grounds that “(1) the Agency had failed to complete the investigation of the complaint within 180 days of the final amendment; (2) there was an excessively long delay with no meritorious explanation for the delay; (3) Complainant was substantially prejudiced by the inordinate amount of time in processing his EEO complaint in that many witnesses are no longer employed by the Agency, documents that could have been collected during the investigation cannot be cured by discovery, and that the memory of witnesses have waned.”
EEOC further wrote, “…Agency was not credible in stating that it had been processing the complaint as a mixed case before the AJ had ordered it to produce the complaint file. Nor was the Agency credible in attributing part of the delay to the processing of a related class complaint. The record contains no documentary evidence to support the Agency’s account of how it processed this complaint. Moreover, the Agency gave inconsistent and contradictory accounts of when it allegedly amended and investigated the constructive discharge claim.”
EEOC then found that the record contained sufficient evidence to establish a prima facie case of age discrimination, raising an inference of discrimination based on age. Complainant was more than 40-years old, was found to be highly qualified for the position, was one of three finalists to be interviewed, but was not selected for the position. Instead, the Agency selected an individual who was substantially younger than Complainant.
When EEOC examined the agency’s explanation for passing over Adkins, it found that the selecting official stated that the selectee was chosen, in part, because the selecting official thought the selectee would be more “productive” than Complainant. Pulling its punch only slightly, EEOC ruled that the “more productive” defense in this age discrimination case “constitutes sufficient evidence to create an inference that the selecting official denied Complainant an employment opportunity based on a discriminatory criterion: older workers were less efficient or less productive than younger workers.”
What are the odds that the investigation file was withheld because it contains embarrassing direct evidence of age discrimination, maybe a note in the promotion file or a statement in an affidavit? If the evidence proves that someone at a high level in FDIC deliberately forced older workers out it could open the door for a lot more trouble for FDIC from other employees. Moreover, wouldn’t you like to know the name of the FDIC attorney who made that false statement to EEOC about a related complaint? We would, and we suspect the bar would to.
The value in this case for the rest of us is EEOC’s very firm assertion that it will punish an agency that fails to timely complete an EEO investigation. It reminded FDIC of three other cases where it did the same thing, namely Royal (240 day delay), Matheny (15 month delay), and Myvett (574 day delay). So, remind your members who have filed EEO complaints that if the agency has not produced the Report of investigation (ROI) in 180 days from the date the employee filed the complaint, they should ask EEOC for a hearing and force disclosure.