Dorthy G.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Jun 7, 2018

0120181489 (E.E.O.C. Jun. 7, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dorthy G.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120181489

Hearing No. 570-2016-00670X

Agency No. PE-FY15-104

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated April 6, 2018, finding no discrimination
regarding her complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons,
we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an English Language Arts Teacher, 210, GS-12 at the Agency’s Pacific Area Office at Zama
Middle School in Japan. On September 15, 2015, Complainant filed her complaint alleging
discrimination based on race (African-American), color (brown), and in reprisal for prior EEO
activity when on July 31, 2015, a Supervisory Human Resources (HR) Specialist (HR1)
determined that she was ineligible to enroll in the Priority Placement Program (PPP).

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On October 31, 2017, the Agency filed a Motion for
Summary Judgment and on December 6, 2017, Complainant filed an Opposition to the Agency’s
Motion for Summary Judgement. On March 26, 2018, the AJ issued a decision without holding
a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision.
Complainant appeals.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, the AJ adopted and incorporated the Agency’s statement of undisputed
material facts by reference into his decision. The AJ, assuming arguendo that Complainant had
established a prima facie case of discrimination, determined that the Agency articulated
legitimate, nondiscriminatory reasons for its action.

The Agency indicated that the PPP was an administrative program with the primary purpose of
placing its employees who had been adversely affected through no fault of their own, due to base
closure, realignments, consolidations, contracting out, position classification decisions, rotation
from overseas, and transfers of function. The Agency’s HR Chief (HR2) indicated that on April
17, 2015, Complainant emailed her requesting information on how to apply for the PPP. On
April 18, 2015, HR2 responded via email (copied to HR1), to Complainant that she was not
eligible for the PPP under the Agency PPP Handbook.

Complainant then contacted HR1 to get additional information for the PPP and Leave Without
Pay (LWOP) because she wanted to return to the United States due to the passing of her brother
and continuous medical problems with her mother. On July 31, 2015, HR1 responded to
Complainant’s inquiry by confirming that HR2’s April 18, 2015 statement was accurate in that
she did not meet the requirements of the PPP as she was not a current family member in the
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United States on a career/career-conditional appointment and she was a teacher in the overseas
area under an excepted service appointment.

Complainant then contacted the Agency Defense Civilian Personnel Advisory Service (DCPAS)
concerning the PPP. The DCPAS, after talking with HR1 and HR2, ultimately determined that
Complainant could be deemed eligible for the PPP (Program F) and that she was required to
leave the overseas area without intent to return on Leave Without Pay (LWOP) or via separation.
Complainant thus was informed of her PPP eligibility.

Upon review, we find that Complainant failed to show that there were any similarly situated
employees not in her protected groups who were treated differently under similar circumstances.
HR1 and HR2 indicated that at the relevant time, they were not aware of Complainant’s race,
color, or prior EEO activity. We note that even if HR1 and HR2 initially made a mistake
concerning their determination of Complainant’s eligibility for the PPP, there is no evidence that
such a mistake was based on discrimination. During the time of the incidents at issue, in 2015
and 2016, it appears that Complainant requested sick leave, Family and Medical Leave Act
(FMLA) leave, and LWOP which were all approved by the Agency (these matters are not at
issue).

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s statement of
undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the
Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
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Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission.

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The court has the sole discretion to grant or deny these types of requests. Such requests do not
alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right
to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 7, 2018
Date