0120170627
03-22-2018
James T.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
James T.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120170627
Agency No. PE-FY12-016
DECISION
On December 2, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 17, 2016, final decision concerning his equal employment opportunity (EEO) 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.
ISSUE PRESENTED
Whether the evidence of record supports the Agency's conclusion that Complainant failed to prove he was discriminated against based on his race (African-American), color (Black), sex (male) or reprisal for prior EEO activity when he was placed on a Performance Improvement Plan (PIP); placed on administrative leave and directed to report to a temporary duty station; issued a Letter of Reprimand for conduct unbecoming a school principal; denied his request to obtain a copy of the results of the management investigation into his conduct which led to the reprimand; and permanently reassigned to another high school.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Principal at the Agency's Kinnick High School facility in Japan District, DoDEA-Pacific.
On December 23, 2011, Complainant filed a formal complaint. He alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: (1) he was placed on a Performance Improvement Plan (PIP); (2) he was placed on administrative leave, directed to report to a temporary duty station, and was issued a Letter of Reprimand for conduct unbecoming a school principal; and (3) when he was reassigned to a Principal position in another high school. Complainant also raised an allegation that he was improperly denied the opportunity to inspect an unedited copy of a management investigation into a claim that he had engaged in improper conduct towards another employee. The Agency accepted the complaint and investigated.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Initially the Complainant requested a hearing, but later retracted that request and requested a Final Agency Decision based on the investigation. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination and/or retaliation as alleged.
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
A claim of disparate treatment or reprisal are examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant based his retaliation claim on the fact that he was placed in his assignment as Principal in August 2008, as a result of prevailing in a prior EEO complaint filed in 2006. The 2006 complaint was filed against the then-Superintendent. Complainant alleged that his current supervisor, the Assistant Superintendent, had reported to the Superintendent at the time of his prior complaint and was aware of his prior complaint. Complainant also alleged that he had previously been placed on an earlier PIP by another management, resulting in another EEO complaint filed in 2010, which was still pending at the time of the events at issue. The Assistant Superintendent confirmed she was aware of these complaints.
The established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, the Agency articulated legitimate, non-discriminatory reasons for its actions.
On October 28, 2011, Complainant was placed on a PIP by the Assistant Superintendent (Caucasian female). In the written notice of the PIP, the Assistant Superintendent cited, in detail, to eight identified areas of deficient work performance with specific examples relating to each area. Complainant stated he received no warning or counseling prior to being placed on the PIP, and had received a significant cash award for his performance the previous year.
On December 9, 2011, Complainant was notified of a pending management investigation regarding a complaint filed with management by his Assistant Principal (Caucasian female) that he had acted improperly towards her. It appears that the Assistant Principal complained of a number of instances where she had concerns over Complainant's conduct, including most recently, on October 28, 2011, when he allegedly put his arm around her during a conversation she was having with a coworker, making her feel uncomfortable. The Assistant Principal also cited an incident earlier in October 2011 in the high school theater during Senior Night where the Principal allegedly insisted on sitting next to her and also put his arm around her. Other school staff members confirmed witnessing these two events and noting Complainant looking uncomfortable. The Assistant Principal also asserted that in September 2011, during a discussion about her performance appraisal, Complainant allegedly told her that they "were going to have to spend our evenings [at the Administrative Conference] discussing this." She also stated that he required her to eat lunch with him throughout the 2010-2011 school year, often off campus. Finally, she said that in August 2010, Complainant introduced her during an assembly of all the teachers and administrators by saying, "This is [Assistant Principal]. All of the other administrators were up here talking, but I told her to just stand there all Vanna Whitish and look pretty and not say anything."
After he was notified of the Assistant Principal's complaint, Complainant was placed on administrative leave starting on December 12, 2011, and subsequently reassigned to a temporary duty station on December 14, 2011, pending the investigation. The investigation concluded that Complainant acted inappropriately towards the Assistant Principal. On March 22, 2012, Complainant was issued a Letter of Reprimand by the Assistant Superintendent for "conduct unbecoming a school principal" for his conduct towards the Assistant Principal. Once the investigation concluded, Complainant was returned to his job at the high school.
After receiving the Letter of Reprimand, Complainant's sought to "inspect" the unedited copy of the management investigation into his alleged misconduct towards the Assistant Principal. He was directed to the Freedom of Information Act Requester Service to pursue obtaining a copy.
The Superintendent (Japanese American male) confirmed that an investigation was conducted into allegations of misconduct by Complainant towards his Assistant Principal. He confirmed that during the period of the investigation, he was initially placed on administrative leave and later reassigned to a temporary duty station pending the outcome of the investigation.
On May 9, 2012, Complainant was issued a Notice of Management-directed Reassignment effective August 1, 2012. He was reassigned as Principal to another High School. His duties and other conditions of employment, including salary, remained unchanged. Complainant was unhappy with the transfer and complained. He also complained about his belief that members of his staff knew about the reassignment before he was told.
Both the Superintendent and Assistant Superintendent stated that they had nothing to do with the decision to reassign Complainant for the 2012-13 school year, and did not request, recommend or initiate any action to do so with their superiors. The Agency Director (Caucasian female) stated that she was briefed on the atmosphere of the high school and the contentious relationship between Complainant and the Assistant Principal, and she believed that both of them needed to be moved to different locations for the good of the school and the students. She stated that they both had become a significant distraction from the mission of educating the students, and had soured the atmosphere at the school and the local community. While she did not make the decision to move Complainant, she stated that she made her concerns about the issue known to her leadership team, and she believed the Acting Director for the Pacific ultimately made the decision to readjust the administrative staffing assignments for the 2012-13 school year.
In addition to providing specific explanations for the actions taken against Complainant, the Agency provided information concerning disciplinary actions taken against Agency staff of various ethnic and sexual backgrounds. Statements of actions similar or identical to actions taken against Complainant where identified and described with specificity, including PIPs, reprimands, involuntary transfers, supervision, access and other actions required to provide adequate faculty resources for students. The statements described the administration's day to day activities in an educational system, and the expected behavioral comportment by members of the Administration. The Agency also included in its evidence instances of student dissatisfaction with Complainant, especially his comportment when talking to them.
Complainant, through counsel, prepared and presented a written rebuttal to the explanations given by the Agency. Complainant's rebuttal focused on his criticisms of the disciplinary actions taken against him by the Agency. Complainant's rebuttal was primarily directed at how he believed the situations were mishandled and that certain staff members did not like him. However, after careful review of the record, we conclude that Complainant did not prove, by a preponderance of the evidence, that the proffered legitimate, non-discriminatory explanations by the responsible Agency managers were a pretext designed to mask discrimination on any basis alleged or retaliatory animus. While on appeal Complainant argues that the investigation into his complaint left a number of enumerated questions unanswered, we note that Complainant withdrew his request for a hearing before an EEOC Administrative Judge. In doing so, he failed to avail himself of the opportunity to engage in discovery and further litigation to develop a factual record to support his claim of discrimination and retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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.
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. 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
3/22/18__________________
Date
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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