U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jocelyn R.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity (DoDEA)), Agency. Appeal No. 2020004563 Hearing No. 570-2019-00499X Agency No. DE-FY19-073 DECISION On August 13, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), 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 BACKGROUND 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 Complainant submitted the appeal to the Agency using a superseded EEOC 573 notice of appeal form that instructed it be filed using an EEOC mailing address that is 13 years out of date.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a Form 573 was enclosed, but because a copy is not in the complaint file, we do not know if the Agency enclosed the superseded version or if Complainant obtained it elsewhere. Given this, we deem Complainant’s appeal timely. 2020004563 2 At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Educational Aide, TP-1701-KD, at the Department of Defense Domestic Dependent Elementary and Secondary Schools, Fort Campbell High School in Kentucky. On January 22, 2019, via email, Complainant initiated EEO counseling by submitting a Pre- complaint Intake Form. Therein, she alleged that the Agency subjected her, and a class of employees based on race/color (African-American/Black) and reprisal for prior EEO to a hostile work environment from August 30, 2016 to December 7, 2018. While Complainant generally alleged the DoDEA Headquarters Cabinet perpetrated the hostile work environment, almost all the perpetrators in her illustrative examples thereof worked at Fort Campbell High School where all, except perhaps incident 10 below, occurred including: 1. Around August 30, 2016, at the beginning of the school year, she and other paraprofessionals were required to arrive at 7:05 AM, rather than their scheduled start times of 7:10 AM and 7:15 AM, and to work with Special Education students, which is difficult, albeit she personally does not have a problem with the arrival time or accommodating these students’ needs. 2. Starting in September 2016, case managers in the Special Education department asked her and other paraprofessionals to give students answers while they took tests. 3. In late July 2017, when training started for the new school year she was reassigned to work with the special education teacher for students in the Moderate to Severe program - profound disabilities, which involves less popular things such as changing diapers and assistance in the bathroom and eating as well as lifting beyond her restrictions, and other African-American/Black paraprofessionals were reassigned without their input to different areas within the school and to other schools, including disproportionally being reassigned and/or continuing to be assigned to the two self-contained Special Education classrooms, which is more difficult. 4. On April 23, 2018, she was informed by the Principal that a Letter of Caution was being placed in her file (which, based on Complainant’s description appeared to be for disruptive behavior and/or not following instructions, albeit this is unclear). 5. On or about April 26, 2018, two students told her the Principal asked them if Complainant was mean to them. 6. Beginning around August 2018, with a new school year in a new high school building paraprofessionals were not given keys for their classrooms even though they arrive before teachers; she and the three other departmental aids who because of their duties are not assigned to self-contained classrooms were assigned student lockers to store their belongings which was embarrassing since students asked why they had lockers with them, they were not assigned laptops which they need to serve students by keeping up with Schoology, missing assignments, grades and the like, instead the Principal delegated 2020004563 3 to an Information Technology person control over their access to laptops who sometimes made it difficult, the Principal, with input from Teacher 1 decided not to give them designated workspaces to use laptops even though there were two unused department hub desks, a teacher offered his area in a department hub for this purpose and to store her belongings but Teacher 1 blocked her use but not a Caucasian aid from using a nearby desk, Teacher 2 blocked her from eating lunch in a departmental hub area by locking the door but Teacher 1 allowed a Caucasian aid to do so by letting her use her key, and some classrooms do not offer her a chair to sit in. 7. On August 24, 2018, a teacher upbraided her for reporting to class seven or eight minutes late after hall duty. 8. Around September 2018, she was accused by the Principal or a teacher of being untrustworthy to remain in her workplace area, a defamation of character. 9. On December 6, 2018, in accordance with high school practice, she texted the secretary’s personal phone number requesting a substitute for the day, who replied she needed to contract administration, not her. 10. On December 7, 2018, she attended a meeting requested by the DoDEA Kentucky Community Superintendent with Assistant Principal 1 and her union representative to discuss complaints she communicated to the Superintendent via email, and learned there that the secretary reported to administration she used her personal phone number. Complainant included a memo with her Pre-complaint Intake Form requesting that her class pre- complaint be transmitted directly to the Commission for processing, not forwarded to the DoDEA EEO office in Peachtree City, Georgia. The Agency sent a letter to Complainant dated January 29, 2019, to Complainant notifying her that it was forwarding her class pre-complaint to an EEOC AJ to determine whether to certify it as a class action. It advised that under EEOC regulations, as soon as a complainant moves for class certification the Agency must forward their case to the EEOC for processing. It advised that because moved for class certification prior to EEO counseling she would not receive any 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 other information designed to elicit whether her complaint met the regulatory criteria for class certification. In reply, the Agency filed a brief opposing class certification. In her reply, other than very generally raising directed reassignments largely or fully Agency wide, Complainant did not raise anything resembling the hostile work environment claim recounted in her pre-complaint, and instead alleged African-Americans time in service awards were delayed or denied, after engaging 2020004563 4 in EEO activity African-American employees were subjected to salary reduction, suspension, letters of reprimand, denial of leave, removal from their permanent position; not selected for promotion, extra duty positions and transfers; placed under investigation, directed to report to an isolated work site, did not get mid-year reviews, and got disparaging comments in performance appraisals with lowered ratings. While Complainant’s pre-complaint regarded things that happened to her and other paraprofessionals at Fort Campbell High School, her reply to AJ 1’s information request represented the class was made up all 1,250 African-American/Black DoDEA employees largely or fully throughout the Agency with various careers, including 43 known but mostly unidentified ones. On June 17, 2020, AJ 2 issued a decision finding Complainant did not meet the criteria for class certification because she did not offer any specifics, affidavits, or anecdotal evidence to establish even a minimal evidentiary basis from which one could reasonably infer the Agency’s policies or practices resulted in discrimination, in her reply to AJ 1’s request for information she cited many examples of alleged class discrimination, supported by uncited statistics, nearly all of which were irrelevant since she did not raise them in her pre-complaint, and her pre-complaint hostile work environment claim (at Fort Campbell High School) did not support her assertion that her claim is typical of and raised common questions of fact as the claims of the putative class. 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 the final Agency 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. In reply, the Agency argues that Complainant’s complaint does not meet the criteria for class certification.3 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 3 The Agency also argues Complainant untimely filed her appeal brief. We disagree. She filed her brief with the EEOC on August 20, 2020, one week after she 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. 2020004563 5 .204(c).4 Here, the Agency incorrectly processed Complainant’s case by forwarding her class pre-complaint to the AJ without EEO counseling or receipt of a formal EEO 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, via a non-attorney representative, in argument labeled “Exhibit 9”, 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 a Complainant identify the issues in their case and elicit information for the record so a determination can later be made on whether allegations should be accepted or procedurally dismissed. Here, Complainant’s class pre-complaint regarded the Agency subjecting her and other paraprofessionals at Fort Campbell High School to a hostile work environment based on race and reprisal, but at the hearings level she represented her class action claims involved mostly other matters perpetrated against employees in various careers mostly or fully Agency wide. But because Complainant was not given EEO counseling and not instructed to file a formal EEO, we are not confident about the identity of her individual and class claims, and hence whether any are subject to dismissal under 29 C.F.R. § 1614.107, or should be certified. Accordingly, the Agency’s final order is VACATED. ORDER The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. Part 1614, starting with § 1614.105(b)(1), and to include adherence to the regulatory timeframes. 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). 4 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). 2020004563 6 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 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 2020004563 7 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 (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. 2020004563 8 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 19, 2021 Date
