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

Equal Employment Opportunity Commission

Sep 14, 2021

Appeal No. 2020000822 (E.E.O.C. Sep. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Torie A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020000822 Hearing No. 570-2017-01450X Agency No. DE-FY17-118 DECISION On November 12, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an October 8, 2019 final Agency decision (FAD) dismissing her complaint of 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 At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Assistant Principal, AD-1710-08, at the Domestic Dependent Elementary and Secondary Schools, Gary I. Gordon Elementary School at Fort Bragg, North Carolina. In August 2017, after Complainant initiated contact with the Agency’s EEO office to obtain EEO counseling, she submitted a Pre-complaint Intake Form. In the pre-complaint form, Complainant alleged the Agency subjected her to discrimination based on race (African American/Black), color (brown), and reprisal for prior protected EEO activity under Title VII by withholding her time-in-service certificate and pin. She identified August 2017, as the date discrimination occurred. 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. 2020000822 2 She also alleged the same discriminatory practice (withholding time-in-service certificates and pins) occurred to a class of employees based on their race (African American/Black) and reprisal. On September 7, 2017, the Agency forwarded Complainant’s case to an EEOC hearings unit to decide if her “class complaint” should be certified. By letter to Complainant the same day, the Agency notified her it was doing this, and advised that since she moved for class certification in her Pre-complaint Intake Form, no EEO counseling would be conducted. On March 28, 2018, an EEOC Administrative Judge (AJ) issued his initial letter to the parties requesting Complainant identify each of the employment actions that were the subject of her “class complaint”, the time span covered by her allegation, and instruction that she establish that her complaint met the regulatory criteria for class certification. It appears this was a form letter used for all class complaint and was not tailored to this particular case. Thereafter, the Agency filed a brief opposing class certification. In her reply to the AJ, Complainant, then represented by counsel, identified many more employment actions as the subject of her class complaint, including travel, assignments, performance appraisals, denial of administrative leave, discipline ranging from letters of caution to demotions, and promotions, and wrote these events spanned October 1, 2008 to the present.2 2 In EEOC Appeal No. 0720150013 (Oct. 24, 2018), request to reconsider (RTR) denied, EEOC Request No. 2019001738 (May 23, 2019), the Commission found that the Agency did not discriminate against Complainant based on her race and/or reprisal, as applicable regarding her annual school year performance ratings in June 2011, July 2012, and July 2013, and when she was reprimanded in February 2013. In EEOC Appeal No. 0120150849 (April 20, 2016), the Commission procedurally dismissed Complainant’s complaint that she was discriminated based on her race and reprisal during the 2013-2014 school year regarding a directed reassignment and not getting a promotion. In EEOC Appeal Nos. 200120170347 & 0120171016 (Dec. 21, 2017), RTR denied, EEOC Request Nos. 0520180211 & 0520180434 (Jun. 20, 2018), the Commission found Complainant was not discriminated against based on her race and reprisal when she was not selected for promotions around October 2014 and April 2015. In EEOC Appeal No. 2020001380, the Commission found that Complainant was not discriminated against based on her race and reprisal when she was not selected for four competitive promotions in June and July 2015. In EEOC Appeal Nos. 0120180009 & 0120181896 (Feb. 21, 2019), RTR denied, EEOC Request Nos. 2020005512 & 2021000138 (Nov. 9, 2020), the Commission denied class certification on Complainant’s claims that African American/Black employees seeking promotion were discriminated against because selections were based on reference checks and management contacts (case began in March 2016) and seeking promotions per vacancy announcements published from January 1, 2016 - December 1, 2016 due to denial of scoring points since they were denied professional awards, and in EEOC Appeal No. 2021001846 (Apr. 19, 2021), the Commission affirmed the dismissal of Complainant’s individual complaints for failure to cooperate. On the above claims Complainant often also alleged discrimination on other protected groups - no discrimination was found on these bases either. 2020000822 3 On September 4, 2019, the AJ issued a decision which characterized the “class complaint” as alleging harassment when the Agency withheld time-of-service certificates and pins to a putative class of employees based on their prior EEO activity and being African American/Black.3 The AJ denied class certification. He reasoned, for example, that Complainant did not show there were questions of fact common to the class because she offered no evidence substantiating the claim that these awards were withheld from African American employees and only Caucasian employees receive them, and Complainant, as putative class agent, did not show her claims were typical of the class because she failed to show she was ever denied a length of service award. The AJ instructed the Agency to either accept, reject, or modify his decision, and that the dismissal of a class complaint must inform the class agent that the complaint was being filed as an individual complaint or also being dismissed as an individual complaint. Thereafter, by email to Complainant, the Agency’s EEO function asked her to clarify when management officials delayed issuing the time-in-service certificate and pin to her, and when she received them. Complainant replied by writing asserting it was not credible this inquiry was necessary, labeling it an interrogation, and quoting religious verses about treachery and lying. Thereafter, the Agency issued a FAD dismissing Complainant’s individual complaint for failure to state a claim. It reasoned Complainant declined to provide the duration of the delay for issuance of her time-in-service certificate and pin or any further information, and found she did not show a delay rendered her aggrieved. On appeal, Complainant argues in favor of class certification, and represents that she has yet to receive her time-in-service certificate for her 20 years of service with the Agency. In reply, the Agency counsel argues against class certification and in support of its FAD. ANALYSIS AND FINDINGS 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 .204(c).4 3 Citing to an EEO counselor’s report, the AJ wrote that Complainant also alleged hostile work environment discrimination against employees based on their race/color (Black) and reprisal, citing numerous (unspecified) incidents from July 2016 to the present. However, Complainant did not receive EEO counseling or allege this in her Pre-Complaint Intake Form or response to the AJ’s March 28, 2018 information request. 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 2020000822 4 Here, the Agency incorrectly processed Complainant’s case by forwarding Complainant’s class pre-complaint form to the AJ without counseling or the filing of a formal complaint, and the AJ incorrectly did not advise the parties that Complainant’s EEO case was prematurely forwarded to the EEOC hearings unit. Nevertheless, given the unique circumstances of this case, which includes Complainant availing herself of the opportunities to explain her claims with voluminous filings, we find there is sufficient information in the record to make a decision on her appeal. After an agency forwards a class complaint to an EEOC hearings unit, an AJ may dismiss part or all of the complaint for the reasons listed in 29 C.F.R. § 1614.107 or because it does not meet the criteria for class certification under § 1614.204(a)(2). Thereafter, if certification of the class complaint is denied, the class complaint becomes an individual complaint, which the Agency may accept, or dismiss per § 1614.107. See 29 C.F.R. § 1614.204(d)(2) & d(7). Based on a review of the record, we find the issue raised by Complainant in her pre-complaint form, which we now treat as a formal class EEO complaint due to the unique circumstances in this case, is that the Agency subjected putative class of employees to discrimination and harassment based on their EEO activity and being African American/Black by withholding their time-in-service certificates and pins. We decline to find that the large range of additional employment actions - at least 17 - Complainant identified as being the subject of her class complaint in response to the AJ’s March 28, 2018 inquiry were ever part of her constructive class complaint. Here, we need not decide whether the AJ correctly denied class certification because we find that Complainant’s class complaint fails to state a claim. 29 C.F.R. § 1614.107(a)(1). Complainant does not indicate the duration that the time-in-service certificates and pins were delayed for class members, and prior to the appeal did not cooperate when the Agency asked how long hers were delayed. On appeal, Complainant represents that she has yet to receive her time-in-service certificate for her 20 years of service with the Agency. We decline to consider this representation because Complainant raises it for the first time on appeal after refusing to cooperate with the Agency’s inquiry on the same. But even if we considered Complainant’s representation, a review of case files in other appeals by Complainant, which include her resume up to around 2011, reveals she started at the Agency in August 1990, left the Agency in June 1995 to for a non-Agency school in Clarksville, Tennessee, and then returned to the Agency in August 1997. Taking her interruption in service into account, Complainant likely reached 20 years of Agency service around 2012. 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). 2020000822 5 She does not indicate she inquired after her missing time-in-service certificate and pin prior to waiting five years to initiate EEO counseling in August 2017, which lends some support to the Agency’s finding she was not aggrieved by this.5 In McGrath v. USPS, EEOC Appeal No. 01A12418 (May 31, 2011), the Commission found that a complainant who had 35 years of service in November 1998, but did not receive his service pin until July 2000, was not harmed. In Mathews v. USPS, EEOC Appeal No. 0120131012 (May 24, 2013), the Commission found a complainant who discovered about three years after he retired that he should have been presented with his 40 year service award pin was not aggrieved nor set forth a viable claim of reprisal. We find the same regarding Complainant’s class complaint and individual claim. Complainant’s class complaint and individual claim is DISMISSED for failure to state a claim. 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 5 We also note that 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. There is no explanation from Complainant about why she waited approximately five years after she believed she had earned her 20-year certificate and pin to raise this issue to an EEO counselor. 2020000822 6 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. 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. 2020000822 7 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 September 14, 2021 Date