[Redacted], Nancey D., 2 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Oct 13, 2022

Appeal No. 2022001494 (E.E.O.C. Oct. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nancey D.,2 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2022001494 Hearing No. 480-2021-00033X Agency No. PE-FY20-132 DECISION On January 24, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 3, 2022 final order 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. BACKGROUND During the relevant period, Complainant worked as a Kindergarten Teacher at the Agency’s Bob Hope Primary School in Okinawa, Japan. On May 4, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (African American) and color (Black) when: 1 2 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. 2022001494 2 1. On or about January 15, 2020, the Principal filed a child abuse report and assigned Complainant to an alternate workstation.3 2. On or about March 30, 2020, the Superintendent issued a decision to suspend Complainant. 3. On or about April 7, 2020, the Principal extended Complainant’s Alternate Work-Site (AWS). After its investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely 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 issued its final order adopting the AJ’s finding of no discrimination. 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). 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 for Complainant. 3 Complainant was also removed from the classroom and assigned to an AWS from November 2018 through August 2019 due to her pending FAP investigation. 2022001494 3 Suspension In January 2020, the Principal proposed suspending Complainant for five days based on four charges: Failure to Follow School Procedures (Charge I), Absence Without Approval of Leave (Charge II), Inattention to Duty (Charge III), and Inappropriate Conduct Towards a Child (Charge IV). According to the Principal, charges I - III arose when Complainant left the school campus on December 16, 2019, at 10:35 a.m. without signing out. Complainant’s absence exceeded her scheduled break, causing her to be Absent Without Leave (AWOL) from 11:10 a.m. to 12:00 p.m. As a result, Complainant’s classroom assistant had to supervise recess in Complainant’s room, causing her to miss her own lunch period. In addition, the Principal noted that Complainant did not conduct guided reading and ELA centers with her students that day.4 Regarding the physical force charge, the classroom assistant reported to the Principal that a student told her that Complainant had painfully grabbed him by the shoulder. The student started crying so the classroom assistant took him out of the classroom to get a drink of water and calm down. Complainant acknowledged that she had taken a child by the arm to guide him in line. Subsequently, the child’s parents complained to the Principal about Complainant’s conduct. Thereafter, the Principal filed a physical force report with Family Advocacy (FAP) and placed Complainant at an alternate workstation while the matter was being resolved. Prior to the event at issue, in May 2019, Complainant had been issued an earlier reprimand for using physical force on students. The record contains a copy of the March 30, 2020 final Decision on the proposed suspension. In the decision, the Superintendent stated that on March 17, 2020, he met with Complainant, the Pacific South, District Superintendent Office (DSO), the AEAO President and FEA Pacific Area Director. The Superintendent upheld the suspension, but reduced it to a three-day suspension effective April 13 - 15, 2020. The Superintendent placed Complainant on notice that any future misconduct on her part could result in a proposal for more severe disciplinary action, up to and including removal from the Federal Service. Alternative Workstation and its Extension When the Principal filed the report with FAP regarding the accusation of Complainant using physical force on a student, Complainant was placed at an alternate workstation while the matter was investigated and resolved. Complainant’s personal residence was to serve as her alternate workstation via telework. The Principal said she did it on the advice of Labor Management and Employee Relations (LMER) and the District Office. 4 The ELA abbreviation is not identified in the record. 2022001494 4 The FAP completed the investigation by mid-March 2020, concluding that the incident did not meet the criteria for child abuse. While the Principal acknowledged the FAP’s finding, she believed that the “incidents represent conduct issues that must be addressed before [Complainant’s] return to the classroom.” The Principal stated that she was working with LMER to address Complainant’s conduct issues. The AJ noted that the Principal was required to report the incident even if she believed or suspected the student was “telling tales.” He asserted that there was no evidence to suggest that the Principal failed to forward to FAP any similar allegation she received or knew about. Complainant does not dispute that during the relevant period, the Principal reported at least two non-black, non-African employees to FAP for abuse allegations. Regarding the issuance of an AWS, the AJ also noted that an investigation had been required under the Agency child abuse program. The AJ acknowledged that the Agency approach is “patently overinclusive, but understandably so,” given the cost of failure to investigate even the “flimsiest” allegation. Moreover, the AJ found nothing improper about the decision to extend the AWS. The AJ noted that the Agency’s own policy was more expansive than FAP’s interpretation of child abuse, and that Complainant’s alleged actions violated Agency policy even though the actions did not result in harm to the child. In addition, there were additional conduct issues concerning the AWOL incident. On appeal, Complainant also argues the Principal subjected her to excessive management oversight from December 2019 through May 2020, when the Principal allegedly directed several junior employees to observe and report back to her on the Complainant’s conduct and performance, and when she required Complainant to do re-writes of her Kindergarten classroom lesson plans. However, it seems more likely than not that any extra scrutiny of Complainant was motivated by legitimate concerns about her work performance and conduct rather than discriminatory animus. 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. 2022001494 5 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). 2022001494 6 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 October 13, 2022 Date