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

Equal Employment Opportunity Commission

Aug 18, 2021

Appeal No. 2020003539 (E.E.O.C. Aug. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marina A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020003539 Agency No. PE-FY18-084 DECISION On May 11, 2020, 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 final decision, dated April 14, 2020, concerning an equal employment opportunity (EEO) complaint 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Mixed Teacher/Specialist at the Agency’s Humphreys High School located at Camp Humphreys in South Korea. On May 3, 2018, the Principal issued Complainant a Letter of Reprimand for tardiness, failure to follow leave procedures, inattention to duty, and disrespectful conduct.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 According to the Agency, on June 1, 2018 Complainant contacted the EEO office and filed a class complaint regarding the Letter of Reprimand and the pre-action investigation. The Agency forwarded the matter to an EEOC Administrative Judge (EEOC No. 480-2018-00601X). On May 2020003539 2 Thereafter, on March 1, 2019, Complainant was issued a Notice of Proposed Suspension, citing similar conduct. The Superintendent issued a Notice of Decision, on April 25, 2019, upholding a three-day suspension. Complainant served the suspension between May 5 and May 7, 2019. On June 3, 2019, Complainant filed a formal EEO complaint based on race (African American), color (Black), and in reprisal for prior protected EEO activity.3 The Agency framed the claims as follows: Whether Complainant was discriminated against when 1. On April 25, 2019, she was suspended for three-days (served May 5 - May 7, 2019); 2. On May 3, 2018, she was issued a Letter of Reprimand; and, 3. A pre-action investigation was conducted. On July 29, 2019, the Agency accepted claim (1) for investigation. The Agency dismissed claims (2) and (3) on the grounds that Complainant raised the matters in a May 16, 2018 grievance. After an investigation of claim (1), 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its April 14, 2020 decision, the Agency determined that Complainant failed to present a prima facie case of discrimination based on race or color, because he did not show that similarly situated individuals outside of her protected bases were treated more favorably. Similarly, the Agency reasoned that Complainant did not establish a prima facie case of reprisal, because he did not show that management officials were aware of her prior EEO activity and she did not show a nexus between that prior activity and her suspension. Nevertheless, assuming arguendo that Complainant did present a prima facie case, the Agency considered management’s proffered legitimate, non-discriminatory reasons. According to the Superintendent, he considered the information contained in the proposed suspension, the related case file, Complainant’s written response, and aggravating and mitigating factors. He believed that a three-day suspension was the minimum penalty necessary to correct Complainant’s behavior and promote service efficiency. 1, 2019, the AJ dismissed the class complaint and remanded the matter to the Agency to process as an individual complaint. On May 9, 2019, Complainant received EEO counseling. 3 The record indicates that Complainant filed a “corrected” complaint on June 14, 2019, after the EEO Counselor contacted her for clarification. 2020003539 3 The Principal, who proposed the suspension, stated she did so because Complainant’s behavior was repetitive and the previous discipline (May 3, 2018 Letter of Reprimand) was not effective. The Principal believed that a lesser penalty would not correct or deter future misconduct by Complainant. Regarding claims (2) and (3), the Agency reiterated the matters were properly dismissed for being previously raised in the grievance process. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Standard of Review 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 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”). Claim (1) - Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Regarding claim (1), the Agency asserts that Complainant was issued the three-day suspension based on the following: inattention to duty, failure to follow instructions, tardiness, and failure to follow leave procedures. More specifically, in December 2018, Complainant did not attend a meeting with the parents of a child failing her mathematics class. 2020003539 4 Despite receiving emails regarding the meeting, Complainant did not attend and failed to notify the meeting organizer or her supervisor of her absence. Complainant does not dispute her absence, but argues she had been absent and fell behind in reading her emails. On December 13, 2018, the staff, including Complainant, was instructed to complete and return a letter of intent. As of January 15, 2019, Complainant had not submitted the required letter. Additionally, the Agency identified two dates in January 2019, where Complainant was late to a meeting or late in reporting for duty. These conduct issues were preceded by a May 3, 2018 Letter of Reprimand which identified instances of tardiness, disrespectful conduct, and a failure to follow leave procedures in February and March 2018. Complainant does not dispute the misconduct occurred, but considers the offenses to be “minor errors” that management should have addressed during her performance reviews or by issuing less severe discipline (i.e. counseling or Letter of Caution). While Complainant may disagree with management regarding the type of discipline imposed, this disagreement is insufficient to establish that the Agency’s actions were discriminatory. Complainant argues, without specificity, that employees outside of her protected basis who committed the same infractions were not similarly disciplined. However, when asked to identify similarly situated employees, Complainant declined to do so. We find that Complainant has failed to establish a nexus between her color, race, or EEO activity, and the suspension. The record does not indicate that the Agency’s proffered reasons for imposing the suspension were pretext to mask discriminatory animus. Claims (2) and (3) - Dismissal pursuant to 29 C.F.R. 1614.107(a)(4) EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination. Here, as noted above, the agency dismissed claims (2) and (3) on the grounds that these claims raised the same matter that was the subject of a grievance filed by Complainant. In its decision, however, the Agency itself noted that “Complainant’s grievance is not dated and there is no evidence that the Agency ever received the grievance.” Additionally, the Report of Investigation noted that no grievance was filed. The record does contain a document that appears to be a grievance, but, as stated by the Agency, it is not dated. The Agency has not shown that Complainant filed her grievance prior to filing her EEO complaint, thereby electing to pursue the grievance process. 2020003539 5 Additionally, while the Agency has provided portions of the grievance procedure, these sections do not demonstrate that the agreement permits claims of discrimination. The Commission has long held that it is well-settled that the agency bears the burden of providing evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 1991). Based on the instant record, the Agency has not supported its dismissal of claims (2) and (3) pursuant to 29 C.F.R. § 1614.107(a)(4). However, we do find that claim (3) fails to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In claim (3), Complainant alleges that the “pre-action investigation” leading to her May 3, 2018 Letter of Reprimand was discriminatory. Complainant has not alleged a loss or harm to a term, condition, or privilege of her employment with respect to the investigation itself. The resulting harm, the reprimand (claim (2)), does state a claim. Therefore, on remand, while the pre-action investigation may be considered in the processing of claim (2), it shall not be investigated as its own separate justiciable claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination in claim (1) and dismissing claim (3). The Agency’s dismissal of claim (2), however, is REVERSED. Claim (2) is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claim (claim (2)) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. 2020003539 6 As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a final agency decision, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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 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 2020003539 7 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 2020003539 8 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 August 18, 2021 Date