[Redacted], Amina W., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.Download PDFEqual Employment Opportunity CommissionApr 27, 2022Appeal No. 2021001923 (E.E.O.C. Apr. 27, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Amina W.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2021001923 Agency No. EU-FY17-121 DECISION On February 1, 2021, 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 December 31, 2020 final decision concerning her equal employment opportunity (EEO) complaints claiming 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Special Education Teacher at the Hainersberg Elementary School (HES) in Wiesbaden, Germany. Complainant was supervised by the HES Assistant Principal (Caucasian, white, female, age 39). Complainant was also supervised by the former HES Principal before she retired on June 30, 2017, and then by the HES Principal (Caucasian, white, female, age 42). 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. 2 2021001923 On January 20, 2018, Complainant filed a formal EEO complaint. Therein, Complainant claimed alleging that the Agency discriminated against her based on race (Caucasian), sex (female), color (White), age (63), and in reprisal for prior protected EEO activity when: a. During the beginning of school year (SY) 2016/17, the HES Assistant Principal told Complainant not to have contact with one of her special education students and Complainant’s records on this student were given to another teacher without Complainant’s permission. b. In the beginning of SY 2016/17, the former HES Principal notified Complainant that she would become an itinerate teacher, moving her students from room to room, while she was required to find the available rooms herself. c. During the spring of 2017, Complainant received a "voluntary" request to advise if she were going to retire. When Complainant did not respond, the former HES Principal demanded that she do so. d. In April 2017, the Wiesbaden Middle School principal notified Complainant that he was not accepting inter-complex transfers at Wiesbaden Middle School. e. In June 2017, Complainant attended a meeting with the former HES Principal to discuss her performance. The former HES Principal told Complainant that she could write Complainant up because the former HES Principal never previously had to assign a teacher to cover for another one because the teacher could not handle a student. f. In June 2017, Complainant a conversation with the Supervisory HR Specialist. Shortly thereafter, a subordinate HR Specialist, terminated Complainant’s summer living quarter's allowance and initiated a recoupment action with Defense Finance and Accounting Services. The subordinate HR Specialist continued to harass Complainant about her temporary quarters subsistence allowance. g. On August 24 and 30, 2017, the HES Principal requested that Complainant submit a letter of resignation when the HES Principal knew that Complainant was retiring. h. From August 22 through September 12, 2017, Supervisory HR Specialist failed to respond to emails regarding Complainant’s retirement and only gave Complainant ten minutes to discuss her retirement in person. 3 2021001923 i. From August 23 through September 8, 2017, the HES Assistant Principal did not complete her portion of her retirement Request for Personnel Action, SF-52. j. On December 20, 2017, Complainant contacted the Defense Logistics Agency to inquire as to why she had not received any communication or payments. Complainant was referred to DoDEA and was told that Supervisory HR Specialist did not respond to any of their requests.2 Following an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal and through Counsel, Complainant contends that the Agency investigation and its contract EEO investigator were biased against her. For example, Counsel argued that the contract EEO investigator failed to question the Wiesbaden Middle School Principal on demographic information about the teachers who were selected, when Complainant’s request to transfer to a vacancy at Wiesbaden Middle School was denied. Counsel states that a younger teacher had been selected for the Wiesbaden Middle School special education vacancy for which Complainant had applied and been interviewed. Counsel alleges that, for responses to inquiries, the EEO Investigator had set arbitrary deadlines that resulted in excluding one of Complainant’s co-workers as a witness. Counsel states this witness corroborated Complainant’s harassment allegation against management but feared the Agency would retaliate against her if she testified. Counsel accuses the Agency of disingenuousness in its efforts to resolve the case informally. According to Counsel, the Agency’s legal counsel was not a licensed attorney. Counsel asserts that Agency management took adverse actions against Complainant for advocating for students with special needs. Counsel attacks the Agency’s position that Complainant’s resignation was necessary for processing her retirement. Counsel maintains that the Agency had intentionally mishandled Complainant’s retirement paperwork in a manner that delayed Complainant from receiving retirement pay. Counsel called the Agency’s justifications for its adverse actions “red herrings.” 2 Complainant also alleged Agency management’s conduct forced her to terminate her employment with DoDEA by retiring. In doing so, she alleged a constructive termination effective September 30, 2017. This claim was considered to be a “mixed” case claim and was separated from the original complaint and identified as Agency No. EU-FY18-042. The Agency issued a separate final decision on this claim with appeal rights to the Merit Systems Protection Board (MSPB). 4 2021001923 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). Pursuant to 29 C.F.R. § 1614.108(b), the Agency had to develop an impartial and appropriate factual record upon which to make findings on the claims in the formal EEO complaint and define the factual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. However, Complainant waived a chance to cure defects in the investigative record by declining to pursue a hearing before an AJ. EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. By withdrawing her request for a hearing before an AJ, Complainant waived the opportunity to further develop the record through discovery and to cross examine witnesses. Cristobal F. v. U.S. Postal Serv., EEOC Appeal No. 0120180756, (June 19, 2019). We analyzed this formal complaint in the contexts of disparate treatment and hostile work environment analysis. To prevail on a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must first establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The second burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, (2000). To establish a claim of hostile work environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with her work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Harassing incidents must be sufficiently severe and pervasive to alter the conditions of Complainant's employment and create an abusive working 5 2021001923 environment.” See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Servs., Inc., 23 U.S. 75 (1998). For purposes of analysis and without so finding, we assume that Complainant is an individual with a disability and has established a prima facie cases of discrimination and reprisal. Even so, we find that the Agency provided non-discriminatory explanations for its actions, as detailed hereafter. Regarding Claim a, the HES Assistant Principal explained that the parents of one special needs student had lost confidence in Complainant’s ability to educate their child. As a result, the HES Principal had made an alternative arrangement wherein the student received individualized instruction from two other teachers. A special education consultant stated that the child’s parent accused Complainant of causing the child to have “meltdowns” and requested that Complainant not have contact with the child. The special education consultant explained that reassignment was necessary because the student was showing escalated physical aggression toward Complainant. Meanwhile, Complainant maintained that Claim 1a was worded improperly and that the EEO office had refused to amend it. In one of her narratives, Complainant described this student as severely handicapped. Complainant denied that she was responsible for behavioral problems involving the particular student at issue. Here, where we have contradictory testimonial evidence, that is at best, in equipoise, as a result, Complainant fails to meet her burden of showing pretext. Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (where an Administrative Judge did not make credibility determinations, a complainant failed to establish a coworker made offensive comments in a “he said, she said” situation.) Regarding Claim b, prior to the incident in Claim a, Complainant had taught three special needs students in the same classroom. After the difficult student was reassigned to other teachers, an attempt had been made for Complainant and her remaining two students to share the classroom. However, Complainant objected to sharing the classroom, so she chose to use various alternative school spaces that were available for her and her two remaining students. In other words, Complainant did not have a designated classroom following the breakdown in the relationship between her and the particular student. A fair reading of the record shows that Complainant temporarily did not have a dedicated classroom space because of the needs of the unique student and because of Complainant’s preference not to share the assigned classroom. Regarding Claim c, Complainant admitted that management regularly asked teachers if they planned to retire. The Supervisory HR Specialist stated that as a standard operating procedure the Agency inquired to find out which teachers intended to return the following school year and provided a letter for teachers to complete if they intended to retire instead of returning. Complainant expressed reluctance in her response by stating she was unsure whether or not she planned to retire. The former HES Principal apparently shared her plans to retire with Complainant. The HES Assistant Principal stated that Complainant voluntarily discussed plans to retire in the fall of 2017. The evidence is insufficient to show that Complainant was wrongfully pressured to retire. 6 2021001923 Regarding Claim d, the record contains the Superintendent’s email encouraging teachers consider in-complex transfer from one teaching environment to another. The Superintendent’s email further explained that approval for an in-complex transfer was at the discretion of the gaining school’s principal. Complainant apparently wrote a letter expressing interest in an in- complex transfer to Wiesbaden Middle School. The Wiesbaden Middle School did not reciprocate Complainant’s interest in the in-complex transfer. Complainant’s identification of a single comparator who was permitted to in-complex transfer was insufficient to show discriminatory motive in the Agency’s rejection of Complainant’s request for the same. Regarding Claim e, Complainant described a conversation with the former HES Principal, who implied Complainant could be issued a written disciplinary document for her inability to manage the student with behavioral problems. Complainant stated that she defended her performance. Nothing in the record indicated Complainant was officially written-up. To the extent that the former HES Principal discussed proposed disciplinary action with Complainant, such a prospective warning did not amount to a discriminatorily adverse employment action. Regarding Claim f, the Agency explained that after Complainant had stated her intention to retired, she was no longer eligible to receive living quarters allowance for the summer which preceded the following school year. The Agency further explained that any teacher who did not work the entire following school year was required to pay back the summer living quarters allowance. We find nothing improper in the Agency’s termination of the summer living quarters allowance or its efforts to recoup erroneous payment of that benefit to Complainant. Regarding Claim g, the Supervisory HR Specialist stated that Complainant could provide either a letter of resignation or an SF-52 indicating retirement. The HES Principal was apparently mistaken when she advised that it was necessary for Complainant to provide a resignation letter. The HES Principal was also responsible for Complainant’s retirement SF-52 that was deficient. To the extent, however, that Complainant received incorrect advice concerning how to effectuate her retirement, there was no proof that she was mislead intentionally or out of bad faith on the part of management. Regarding Claim h, the Supervisory HR Specialist admitted that he did not respond promptly to Complainant’s emails about her retirement. The Supervisory HR Specialist stated that at the time, he had hundreds of other unanswered emails. The Supervisory HR Specialist explained that he had become responsible for similar personnel matters at more than thirty other schools. The Supervisory HR Specialist confessed that he forgot his in-person appointment that scheduled with Complainant. Although Complainant wanted to have more than ten minutes to discuss her retirement with the Supervisory HR Supervisor, we cannot find that she was denied information that similarly-situated retiring teachers would have received. Regarding Claim i, the Supervisory HR Supervisor stated that, in August 2017, the partially completed SF-52 that only contained Complainant’s inputs was sufficient for him to initiate the request for personnel action. After September 8, 2017, the HES Assistant Principal completed her necessary inputs for SF-52. 7 2021001923 Regarding Claim j, Complainant stated that she was eventually referred to DoDEA’s HR office after she became concerned that she had not received confirmation or payment as a result of her retirement. Complainant’s sworn statement indicated that DoDEA’s HR office eventually helped Complainant correct errors so that her retirement could be processed and paid. While mistakes may have been made which caused delays in Complainant receiving retirement benefits, nothing in the record reflects Complainant’s assertion that the Agency acted based on a discriminatory policy against older Caucasian teachers. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision because Complainant did not prove, with preponderant evidence, that discriminatory factors played any role in the events at issue. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 8 2021001923 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 April 27, 2022 Date Copy with citationCopy as parenthetical citation