Kimber L.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Aug 12, 2020

2019000415 (E.E.O.C. Aug. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimber L.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2019000415 Hearing No. 570-2016-01510X Agency No. EU-FY15-076 DECISION On October 7, 2018, 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 November 2, 2018, final order concerning her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order which found that Complainant did not demonstrate that she was subjected to discrimination. ISSUES PRESENTED The issue presented in this case is whether the Equal Employment Opportunity Commission’s Administrative Judge (AJ), erred in finding that Complainant was not discriminated against when she was removed from a full-time teaching position to a substitute teaching position. 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. 2019000415 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Teacher at the Agency’s Boeblingen ES/MS facility in DoDEA-Europe. In September 2011, Complainant began her work at Boeblingen Elementary/Middle School as a temporary substitute teacher. She worked in that capacity until January 2013. In February 2013, Complainant signed another employment contract where she agreed to work as a full-time teacher for the balance of 2012/13 school year. In September 23, 2013, Complainant signed an employment contract where she agreed to work as a full-time teacher, with a not to exceed (NTE) provision, until July 31, 2015. Prior to July 31, 2015, Complainant was asked to sign a new contract which would return her to a part time teaching position, effective June 12, 2015. Complainant maintained that management pressured her into giving up her full-time teaching position, and management lied to her as to why it was necessary that she sign the contract by a specific date. She was told that she would be kicked out of the system and would have to reapply for employment. So, Complainant signed the new contract. Complainant also maintained that she was not paid for hours that she worked. On June 28, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (45), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. She was denied compensation for teaching services from the week of April 13, 2015, to present; and 2. On June 2, 2015, she was removed from her full time teaching position and assigned to a part-time substitute teaching position at Boeblingen ES/MS. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on September 25, 2018. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that a hearing should have been held because the record is not fully developed. Further she asserts that Agency supervisors assigned Complainant to a part-time substitute teaching position to advance other Caucasian teachers because of their race. She argues she was removed from her full-time federal teaching position and assigned to the part-time substitute teaching position to advance other teachers with less tenure and less qualifications; and finally, she was removed through deception and dishonesty. 2019000415 3 In response, the Agency contends, among other things, that Complainant was afforded ample opportunity to oppose summary judgment. As the AJ pointed out, Complainant’s response completely failed to address the accepted issues. Nor did Complainant make any effort to specify what, if any, additional discovery was appropriate. Therefore, a decision without a hearing was appropriate. Further, the Agency explains that Complainant was hired as a Not to Exceed (NTE), temporary worker. She was required to sign new contracts and each contract stated that her position could change at any time due to the needs of the Agency. In the instant case, a permanent teacher that had been on leave, decided to return, therefore, Complainant was not needed in a full time capacity. Additionally, Complainant was not paid for outstanding hours because she refused to sign her timecard for the missing hours. Management indicates that it had to get special approval to verify the hours so that Complainant could be paid. The Agency requests that the final order be affirmed. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”).We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2019000415 4 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant fails to provide any evidence that the record was not fully developed as she had the opportunity to provide information and respond to motions, but still did not show that any genuine issues were in dispute. Therefore, we find that the AJ correctly issued a decision without a hearing. Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination with respect to all of her bases, the Agency articulated legitimate nondiscriminatory reasons for its actions, namely, that the school principal, explained that in April 2015, she was directed by Human Resources to convert Complainant, as an Over Hire NTE employee, to a substitute teacher due to the return of a full time vested teacher who had been on leave without pay. (Investigative File (IF) at 75). The file contains a Memorandum for Temporary Appointment Employees signed by Complainant acknowledging that the appointment may be terminated if the needs of the school or agency change from the initial appointment due to “lower enrollment, school closures, and/or other situations.” (Id. at 110). Further, with regard to Complainant not being paid, the Agency explained that Complainant was not paid immediately because she did not sign her timecards for the period in question. According to Agency procedures, the only way for Complainant to be paid, was to have a signed timecard. (IF, at 114). Management asserted that special permission from the District Superintendent’s Office had to be obtained for management to attest to the days worked by Complainant since she refused to sign her timecards for days worked as a substitute teacher. (IF, at 77). 2019000415 5 We find that other than Complainant’s conclusory statements, she has not provided any evidence which shows that the Agency’s articulated legitimate, nondiscriminatory reasons were pretext for discrimination or that discriminatory animus was involved. Therefore, we find that there are no genuine issues of material fact here and conclude that Complainant has not proven her case. CONCLUSION Accordingly, we AFFIRM the Agency’s final order which found that Complainant did not demonstrate that she was subjected to discrimination. 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). 2019000415 6 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 August 12, 2020 Date