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

Equal Employment Opportunity Commission

Mar 16, 2021

Appeal No. 2020002729 (E.E.O.C. Mar. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chantelle M.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020002729 Hearing No. 430-2019-00179X Agency No. DD-FY18-027 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 7, 2020 final order concerning her complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS 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 Education Aide, AD-00, assigned to Bowley Elementary School (ES), Fort Bragg, North Carolina. On March 5, 2018, Complainant filed an EEO complaint, which was later amended, alleging discrimination by the Agency based on disability (stroke, anxiety) when: 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. 2020002729 2 1. From July 25, 2017, to January 10, 2018, the Principal (Complainant’s first level supervisor (S1)), Irwin Intermediate School (IS), and the Community Superintendent (CS) subjected her to harassment. The following incidents were provided in support of the alleged harassment: a. On July 25, 2017, the CS reassigned her from her position as an Education Aide at Bowley ES, to an Education Aide at Irwin IS. b. On August 23, 2017, S1 denied her request for administrative leave. c. On August 24, 2017, S1 threatened her employment. d. On August 31, 2017, S1 denied her request for administrative leave. e. On October 5, 2017, the CS and S1 allowed a deadline to pass regarding her reasonable accommodation request. f. On October 13, 2017, S1 cancelled a meeting with her regarding her reasonable accommodation request. g. On October 26, 2017, S1 denied her request for administrative leave. h. On November 3, 2017, S1 charged her with absent without leave. i. On November 8, 2017, S1 told her that she needed a medical excuse for all absences from her place of duty. j. On November 9, 2017, S1 denied receiving a Family Medical Leave Act (FMLA) packet from her. k. On December 12, 2017, the CS cancelled a meeting with her regarding her reasonable accommodation request. l. On January 10, 2018, S1 requested medical documentation from her regarding her sick leave she requested (“Family Medical Leave Act in place”). 2. Since August 23, 2017, the CS has not granted her request for a reasonable accommodation for her disabilities. 3. On June 14, 2018, the CS issued her a Management Directed Reassignment from her position as an Educational Aide at Irwin IS, Fort Bragg, North Carolina, to the position of Educational Aide at Albritton Middle School (MS), Fort Bragg, North Carolina, with an effective date of July 25, 2018. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency articulated that Complainant’s reassignments from ES to IS (which were five miles apart) and then to MS were solely based on the needs of management and its mission. Complainant did not demonstrate that she was denied a reasonable accommodation when she was assigned from ES to IS and then to MS. The Agency requested but Complainant did not provide medical documents to support her request for an accommodation, i.e., reassignment back to ES. Furthermore, Complainant did not establish that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. 2020002729 3 Regarding her claim of harassment, considering all the events, Complainant did not show that it was related to any protected basis of discrimination. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 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. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 2020002729 4 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, 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). 2020002729 5 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 March 16, 2021 Date