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

Equal Employment Opportunity Commission

Jun 15, 2021

Appeal No. 2020000839 (E.E.O.C. Jun. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frederick A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020000839 Hearing No. 570201800246X Agency No. EUFY160130 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403(a), concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was an employment applicant and former Agency employee, having previously worked for the Agency’s Department of Defense Dependents Schools (“DoDDS”). On September 21, 2016, Complainant filed a Formal EEO Complaint alleging discrimination by the Agency on the bases of race (White/Hispanic), national origin (Hispanic), sex (orientation), age (52), and reprisal (prior protected EEO activity) 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. 2020000839 2 From May 1, 2016 through September 19, 2016, Complainant was not referred or selected for the following positions for which he expressed interest on his EAS resume: a. 0101-0103 Grades, 1, 2, 3 b. 0104-0106 Grades 4, 5, 6 c. 0148 Grades 1, 2, 3 Lang Immersion d. 0149 Grades 4, 5, 6 Lang Immersion e. 0158 Elementary School Spanish (Foreign Language Elementary School) f. 0436 Elementary ESL g. 0438 Secondary ESL h. 0470 Hearing Impaired (K-12) i. 0148S Grades 1, 2, 3 Lang Immersion-Spanish j. 0149S Grades 4, 5, 6 Lang Immersion-Spanish k. 0096S Kindergarten Lang Immersion-Spanish l. Virtual School (Teaching Online) 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 timely requested a hearing. The parties were provided an opportunity to further develop the record by engaging in discovery, then afterwards, the Agency submitted a Motion for Summary Judgment. Over Complainant’s objection, the AJ subsequently issued a decision without a hearing in favor of the Agency. The record, developed during the investigation and through discovery, shows that August 2009 through June 14, 2014, Complainant worked as a DoDDS Educator (TP-1701) at Graffenwhohr Elementary School (“GES”) in Graffenwhohr, Germany. Complainant’s first level supervisor (“S1,” White, 40) was the Principal at GES, and his second level supervisor (“S2,” White, 62) was the Superintendent of the Bavaria District. During the relevant time frame for this complaint, S1 and S2 were aware that Complainant engaged EEO activity.2 On April 15, 2014 Complainant entered into a settlement agreement with the Agency, where, among other things, he agreed to withdraw a grievance and voluntarily resign, effective June 14, 2014, in exchange for, among other things, “a written letter of reference that states the inclusive dates of [Complainant’s] employment with DoDEA, with his performance rating listed as ‘acceptable.’” The record includes copies of the evaluation and written letter of reference. 2 On August 8, 2014, Complainant filed a formal EEO complaint (Agency Case No. EUFY14107), alleging that S1 subjected him to a hostile work environment/harassment. On March 23, 2015, after the matter was investigated, Complainant requested a hearing, then, on December 15, 2015, he withdrew the request and removed the matter to federal court. 2020000839 3 Complainant effectuated his resignation by accepting a Voluntary Separation Incentive Package (“VSIP”) that had been offered to employees that year.3 In accordance with the terms of the VSIP, by accepting an incentive payment of $11,007, Complainant was ineligible for re- employment “anywhere in the Federal service or under a personal services contract for five years following separation, unless the full amount of the incentive (before taxes) is repaid in full before the first day of employment.” It also stipulated that Complainant was ineligible for re- employment with the Agency for “one year after separation, even if the full amount of the incentive is repaid.” Complainant alleges that he never received the $11,007 incentive award, and while it is referenced in Complainant’s retirement documents, there is no proof of payment. Between May 1 and September 19, 2016, Complainant sought re-employment with the Agency as an educator for the 2016-2017 School Year through the Agency’s Employment Application System (“EAS”). Complainant listed his current address in San Antonio, Texas, but stated that he was interested in any of the positions listed in Claims 1(a) through 1(l), in any DoDDS location (Korea, Italy, Japan, Bahrain, Guam, Belgium, Germany, Turkey, United Kingdom, Okinawa, Japan, Cuba, Spain, Netherlands, Spain, Turkey, and United Kingdom.) Complainant submitted another form identifying the same positions, but with respect to vacancies within the Agency’s Domestic Dependent Elementary and Secondary Schools (“DDESS”), which covers locations within the continental United States, Guam and Puerto Rico. As Complainant now lived in the continental United States, the Agency categorized him as a “CONUS” candidate. To be considered for an educator position with the Agency, Complainant had to apply through EAS, and indicate his CONUS status on the application. As a former DoDDS employee, Complainant had to submit a written professional evaluation from his most recent DoDDS supervisor (S1) with his application, an established requirement of DoDDS employees seeking re-employment with the Agency. In June 2016, S1 sought to fill a vacancy for the position of ESL Educator at GSE. After an unsuccessful attempt to hire locally, S1 submitted a Request for Personnel Action (“RPA”) and a Human Resources (“HR”) Specialist provided him with a referral list of qualified candidates ranked by their EAS scores. The handful of candidates that S1 was interested in declined his invitations to interview, so S1 canceled the RPA and reassigned a first-grade educator to the position. S1 reasoned that filling the vacated first grade educator position would be less of a challenge, as there were multiple local candidates. It is undisputed that the educator S1 reassigned to the ESL Educator position was qualified, as she had been teaching at GES for the past five years and her professional certifications included ESL. 3 Complainant disputes that his resignation was voluntary. However, he does not dispute signing the April 15, 2014 settlement agreement, and the record contains personnel documents reflecting that he voluntarily retired because he was offered VSIP, and that he understood the VSIP terms. 2020000839 4 Complainant’s name was not on the referral list S1 received, nor was it on any other referral list. Referral lists for DoDDS vacancies are processed by the HR Division at Agency Headquarters in Alexandria, Virginia, while DDESS educator vacancies are processed by the Agency’s Americas HR office in Peachtree City, Georgia. Both offices exclusively use EAS to identify and score applicants to generate referral lists. Using EAS, HR generates a list of applicants that meet the minimum requirements of the position. HR forwards the list to an Agency Licensure Specialist, who verifies that each of the applicants have the necessary certifications to teach at the grade level posted in the vacancy, and, any other relevant certifications (e.g. language skills). The Licensure Specialist sends a list of the “qualified candidates” whose certifications have been verified, back to HR to be scored and ranked using EAS. The EAS scoring process awarded qualified candidates up to 130 points, with a separate 35-point competency score. Scores vary based on specific requirements set out in Agency position descriptions. After the applicants are scored, HR compiles a referral list of all qualified internal candidates and the top 25 qualified external candidates (CONUS and Veteran) and sends it to the management official that submitted the RPA. If a selection is made, HR contacts the candidate with a tentative offer. A referral list may be sent to multiple hiring officials if it meets the specifications of more than one RPA. Given the volume of CONUS applicants it is not unusual for a qualified candidate to be left off the list. Further, Preference Eligible Candidates are prioritized (veteran and service connected disability status). Complainant contends that he should have been on the referral lists because his experience and education make him more qualified than the selectees for the positions he applied to. Complainant holds master’s degrees in Education and History, as well as in Bi-Cultural Studies. He also has over 20 years of experience teaching in elementary and middle schools, much of it at various Agency locations. Based on this evidence, the AJ concluded that Complainant failed to establish discrimination as alleged. The AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). 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). 2020000839 5 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. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This 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. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (Jun. 28, 1990), Peterson v. Dep’t. of Health & Human Serv., EEOC Request No. 05900467 (Jun. 8, 1990), Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). For Claims 1(f), 1(g), and 1(l), which reference the positions of 0436 Teacher, ESL (Elementary), 0437 Teacher, ESL (Middle) and, 0438 Teacher, ESL (Secondary), respectively, Complainant does not dispute the Agency’s assertion that no referral or selection lists were generated for these positions during the relevant time frame. For Claim 1(h), Complainant does not dispute the Agency’s legitimate nondiscriminatory explanation for his nonselection for the position of 0470 Hearing Impaired (K-12) that he did not meet the qualifications for the position. For the positions listed in Complainant’s remaining claims, the Agency’s legitimate nondiscriminatory reason for Complainant’s nonselection was that his name was not on any of the referral lists. In other words, Complainant either did not meet the qualification requirements for the specific position, or he did not score among the top 25 applicants. 2020000839 6 The Agency asserts that all of the selectees were more qualified than Complainant by virtue of their EAS scores, which were all higher than those of Complainant. The Agency established that EAS allowed it to apply a neutral process for scoring and ranking applications. When used to match applications with the qualification requirements of a position, or to identify the status of candidates (e.g., internal, veteran, CONUS), EAS was simply organizing existing data. When used to score and rank qualified candidates, EAS did so by applying existing criteria to all applicants in the same manner. The only human intervention appears to be where an HR Specialist reviewed the qualified candidates’ applications for completeness, and an HR Licensing Specialist verified that the applications identified by EAS meet certification requirements. The record reflects that HR may influence ranking to the extent that Agency policy prioritizes preference eligible candidates (veterans and veterans with a service-related disability), internal applicants, and candidates with higher competency scores. Had Complainant demonstrated that he met the Agency’s qualifications for any of the positions at issue, he would have been included on the referral lists. With respect to the GES ESL Educator vacancy specifically, S1 provided legitimate nondiscriminatory reasons for not selecting Complainant. Complainant’s name was not on the referral list S1 received from Agency Headquarters. To the extent that Complainant argues (without evidence) that S1 should have known that he was interested in getting rehired to the ESL position, Agency policy and hiring protocol limited S1 to selecting from the referral list of vetted candidates or, preferably, hiring locally. S1’s solution of reassigning a qualified educator to the ESL position was within his supervisory authority and coincided with Agency protocol and the operational needs of GES. We note that processes for hiring local educators did not involve the same processing through Agency Headquarters. The record reveals that S1 canceled the RPA for an ESL Educator on July 14, 2016, and the ESL educator was needed for the 2016/2017 school year. Complainant argues that the Agency’s reliance on an “automated system” is pretext for discriminatory intent, as “it is reasonable to assume that human intervention caused the system to deselect Complainant.” He further argues that a dispute of material fact exists over whether the EAS is non-biased, or generated “manipulated information,” citing his superior qualifications compared with the selectees. According to Complainant, given his credentials, and the amount of positions and locations he expressed interest in, it is “beyond reason and common sense” that EAS did not score his application high enough to be included among the top 25 applicants on any referral lists for educator positions for the 2016/2017 year. Notwithstanding the lack of evidence that Complainant’s qualifications were demonstrably superior to those of the selectees, the absence of Complainant’s name on referral lists, without more, is insufficient to establish that a question of material fact exists over the legitimacy of the EAS scores. Moreover, there is no evidence of discriminatory intervention aside from Complainant’s bald accusations. Complainant has not addressed the Agency’s alternate explanation, that his application was incomplete, or he was ineligible for the positions at issue. A Supervisory HR Specialist, GS-14, at Agency Headquarters in Alexandria, Virginia, who did not know Complainant but had knowledge of his applications, testified that Complainant did not include a written professional evaluation from his most recent DoDDS supervisor, nor did he include a valid copy of a state 2020000839 7 teaching license. Complainant could not have been placed on a referral list for educator positions at DoDDS and DDESS without these documents. It also appeared that Complainant would have still been ineligible for the DoDDS positions based on the timing of his separation. Complainant’s EAS form is incomplete, which would have hindered the licensing specialist’s efforts to verify his certifications. For instance, although the EAS form confirms that Complainant is National Board Certified, he leaves the responses for “Educator License Type” and “State/Territory where it was received” blank. The EAS form also contains errors. For instance, Complainant checked “no” for DDESS locations, yet indicated his interest in these positions elsewhere in the form and the record. Complainant also responded “no” where the Agency asks if he is a Former DoDEA employee, which is clearly contradicted by his work experience. Errors or missing documents are both legitimate nondiscriminatory reasons for Complainant’s applications not to be considered or included on referral lists. Breach of Settlement Agreement Throughout the complaint, Complainant alleges that the Agency is in breach of the April 15, 2014 settlement agreement, making comments such as, “[S1] is in violation of his own agreement.” Complainant also states, “it is obvious that [S1] did not provide a satisfactory evaluation since Complainant was never referred.” All of Complainant’s assertions related to the written recommendation and evaluation S1 was to provide are ultimately a dispute over a term in a negotiated, binding, settlement agreement, which is a different cause of action than the matter before us. If the Agency did not already address Complainant’s allegations of breach, and Complainant wishes to pursue them, he must do so by contacting an EEO Counselor. To the extent that Complainant challenges the validity of the VSIP, by alleging that his retirement was involuntary, and he had yet to receive the $11,007 incentive, he must address his concerns through the administrative procedure that provided the VSIP, as this matter is outside the Commission’s purview. 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 Final Order adopting the AJ’s decision. 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. 2020000839 8 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). 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. 2020000839 9 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 June 15, 2021 Date