[Redacted], Carleen L., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Oct 18, 2021

Appeal No. 2020004562 (E.E.O.C. Oct. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carleen L.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020004562 Hearing No. 570-2019-00485X Agency No. DE-FY19-061 DECISION On August 13, 2020, Complainant filed an appeal, per 29 C.F.R. § 1614.403(a) with the Equal Employment Opportunity Commission (EEOC or Commission), from a June 18, 2020 final Agency order concerning denial of class certification on her equal employment opportunity (EEO) pre-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.2 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 August 13, 2020 is the date the Agency uploaded the complaint file to EEOC’s Federal Sector EEO Portal (FedSEP), including the appeal she misdirected to the Agency. Complainant submitted the appeal to the Agency using a superseded EEOC 573 notice of appeal form that instructed it be filed using an EEOC mailing address that is 13 years out of date. The final Agency order indicated a Form 573 was enclosed, but because a copy is not in the complaint file, we do not know if the Agency enclosed the superseded version or if Complainant obtained it elsewhere. Complainant contends that while the Agency electronically notified her of its final order on June 18, 2020, she was unable to open it because of a password issue. The Agency submits a declaration by an EEO Specialist stating that after not receiving an electronic notice that Complainant opened the final order, he sent it to her via certified mail, but it was returned as unclaimed. Given all this, we deem Complainant’s appeal timely. 2020004562 2 BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Assistant Principal, AD-1710-08, at the Domestic Dependent Elementary and Secondary Schools, Gary I. Gordon Elementary School at Fort Bragg, North Carolina. On January 4, 2019, via email, Complainant initiated EEO counseling by submitting a Pre- complaint Intake Form. Therein, she alleged the Agency discriminated against her and a class of employees based on their race/color (African American) who engaged in prior EEO activity by not selecting them for promotion. In the above form, Complainant identified the date of discrimination as “August 2017 (filed with OSC [United States Office of Special Counsel] & MSPB [Merit Systems Protection Board]).” She represented she initiated EEO counseling within the regulatory 45-day time limit because on November 20, 2018, the MSPB notified her it did not have jurisdiction over her Individual Right of Action (IRA) appeal stemming from “her EEO activity.” This referred to a MSPB AJ’s November 20, 2018 ruling, after a conference, that the MSPB lacked jurisdiction over the portion of Complainant’s IRA appeal to the MSPB from OSC closing her June 2017 OSC complaint on four disclosures she made from May 30, 2017 - June 1, 2017 on “a pattern of predatory reprisal, racial discrimination….” The MSPB ruled that because these disclosures regarded discrimination in violation of Title VII, they did not meet the statutory definition of protected whistleblower activity. But it ruled it had jurisdiction on the portion of Complainant’s OSC complaint alleging retaliation for her being subpoenaed in May 2017, as a witness in someone else’s EEO civil action complaint when effective July 25, 2017, she was reassigned from her full-time job as Assistant Principal at Gary I. Gordon Elementary School to doing so half-time there and half-time at Shughart Elementary School.3 On January 8, 2019, the Agency issued a letter to Complainant notifying her that it was forwarding her class pre-complaint to an EEOC AJ to determine whether to certify her “class complaint” as a class action. She was not offered or given EEO counseling. On February 25, 2019, EEOC AJ 1 issued a letter requesting Complainant identify each of the employment actions that were the subject of her “class complaint”, the time span covered by her allegation, and instruction that she establish that her complaint met the regulatory criteria for class certification. It appears this was a form letter used for all class complaints and was not tailored to this particular case. In reply, the Agency filed a brief opposing class certification and arguing Complainant’s claim should be dismissed for untimeliness and other procedural flaws. Complainant replied by 3 On April 3, 2019, following a hearing, the MSPB AJ issued an initial decision finding that this was not retaliatory. 2020004562 3 discussing her MSPB litigation and submitting copies of orders, decisions and the like by the MSPB AJ. On June 17, 2020, AJ 2 issued a decision finding Complainant did not meet the criteria for class certification on the class she was seeking to certify - discriminatory non-selection. AJ 2 found Complainant did not offer any specifics, affidavits, or anecdotal evidence creating even a minimal evidentiary basis for an inference that her non-selection claim was typical of the claim(s) of the class, that there are questions of fact in her complaint that are common to the class, nor did she identify potential class members or explain how their purported experience are typical to her claim. Thereafter, the Agency issued a final order adopting the AJ’s decision. It advised Complainant that if she wished to pursue her dismissed class complaint as an individual complaint, she must notify the Agency of her intent to do so within 15 days of receipt of this Final Order. It warned that failure to do so may result in the dismissal of her individual complaint for failure to pursue. The instant appeal followed. ANALYSIS AND FINDINGS On appeal, Complainant submits argument and evidence in support of class certification. She writes about harassment and “paper lynching” of class members, and a false report crafted to destroy her reputation and endanger her security clearance. It is unclear whether these are new allegations, or evidence in support of her class complaint. In reply to Complainant’s appeal the Agency argues that Complainant’s complaint does not meet the criteria for class certification, and her individual claim should be dismissed for failure to timely initiate EEO counseling and other procedural flaws.4 EEOC Regulation 29 C.F.R. § 1614.204(b) states that a person who wishes to file a class complaint must be given EEO counseling. Also, after EEO counseling is completed the Agency must notify the person of the right to file a class complaint, and a complaint must be filed. Id., at .204(c).5 Here, the Agency incorrectly processed Complainant’s case by forwarding her class pre-complaint to the AJ without EEO counseling or the filing of a formal complaint, and AJ 1 and 2 incorrectly did not advise the parties that Complainant’s EEO case was prematurely forwarded to the EEOC hearings unit. On appeal, in argument she labels “Exhibit 9”, 4 The Agency also argues that Complainant untimely filed her appeal brief. We disagree. She filed it on August 21, 2020, eight days after filed her appeal. Complainant argues she is entitled to a default decision because the Agency did not timely issue its FAD or withheld it from her. We disagree that the Agency did these things. 5 While a complainant may move for class certification at any reasonable point in the process when it becomes apparent there are class implications to the claim raised in an individual complaint, if she does so after EEO counseling is completed an AJ will deny class certification if the complainant unduly delayed in moving for certification. Id., at .204(b). 2020004562 4 Complainant contends that the Agency’s EEO function requires complainants have lawyers write letters to obtain a Notice of Right to File a Formal Complaint. An important part of EEO counseling is to help identify the issues in a case. In the first part of her Pre-complaint Intake Form, in the “Basis for Discrimination” field, Complainant alleged individual and class discrimination regarding “non-selections for promotions, transfers, extra duty positions, lowered performance ratings [and concomitant] lower [monetary] awards.” In the next field of the Form, which was “Issue(s)…”, Complainant only identified non-selection and asserted this claim was timely as mentioned above. From a reading of her Pre-complaint Intake Form, it is unclear whether Complainant intended the events she raised in the “Basis for Discrimination” field to be actionable issues in this case, nor is there any information about the dates or any of the particulars (what, who, when, where) of these events, including the non- selections, save her partial July 25, 2017 reassignment. These things were not developed at hearings stage. Without this information, we are unable to even start assessing whether Complainant’s individual and/or class claim(s) are subject to dismissal under 29 C.F.R. § 1614.107, and whether any class claim(s) should be certified. Accordingly, the Agency’s final order is VACATED. ORDER The Agency is ordered to process the remanded claim(s) in accordance with 29 C.F.R. Part 1614, starting with § 1614.105(b)(1). Regardless of whether Complainant moves for class certification, after counseling is completed the Agency shall issue Complainant a notice of right to file an EEO complaint. If Complainant moves for class certification, the Agency shall apply 29 C.F.R. § 1614.204(d), including providing “a copy of the Counselor’s report and any other information pertaining to timeliness or other relevant circumstances related to the complaint, to the Commission.” IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 2020004562 5 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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, 2020004562 6 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 October 18, 2021 Date