Otis H.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

0120182573 (E.E.O.C. Nov. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Otis H.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120182573

Hearing Nos. 480-2015-00276X,
480-2015-00277X

Agency Nos. PE-FY14-104,
PE-FY14-135

DECISION

On July 23, 2018, 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
June 14, 2018, final order concerning his 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. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

ISSUE PRESENTED

The issue presented herein is whether the AJ properly issued a decision without a hearing and
properly determined that Complainant failed to show that he was subjected to discrimination as
alleged.

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.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant was a former limited-term
substitute teacher at the Agency’s Daegu High School in Daegu, South Korea. The management
at the school included the Principal, the Superintendent, and the Assistant Superintendent.
Complainant indicated that his wife also worked for the school and had engaged in prior EEO
activity. Complainant asserted that he contacted the Superintendent concerning the harassment
experienced by his wife.

The Assistant Superintendent issued Complainant a termination letter effective April 12, 2013,
for threatening the Principal in an email with physical violence. Subsequently, Complainant
sought reinstatement to his position. However, on April 19, 2014, the Superintendent did not
reinstate him. Complainant asserted that the Principal made slanderous remarks about
Complainant on May 22, 2014. Subsequently, Complainant was issued a letter by the Assistant
Superintendent on May 29, 2014, barring him from the Daegu High School.

On June 25, 2014, Complainant filed his first EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), color (Black), and age (48)
when:

1. On May 29, 2014, the Assistant Superintendent issued a letter barring
Complainant from the high school;

2. On May 22, 2014, the Principal issued an email with slanderous remarks about
Complainant; and

3. On April 19, 2014, Complainant was not reinstated as a substitute teacher.

Complainant applied for the position of teacher at the Ryukyu Middle School in the Okinawa
District. The Ryukyu Principal did not select Complainant for the position advertised under
Number 14-MAY7XHE70089727.

On September 30, 2014, Complainant filed a second EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), color (Black), age (48), and
in retaliation for prior protected activity alleging discrimination in violation of Title VII or the
ADEA when:

4. On August 29, 2014, the Ryukyu Principal failed to select Complainant for a
science teacher position under Vacancy Number 14-MAY7XHE70089727.

The Agency investigated both formal complaints. At the conclusion of the investigations, the
Agency provided Complainant with a copy of the reports of investigation and notices of his right
to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested
a hearing on both complaints. The AJ consolidated the hearing requests for his EEO complaints.
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Over Complainant’s objections, the AJ assigned to the case granted the Agency’s June 29, 2016,
motion for a decision without a hearing. The AJ issued a decision without a hearing on May 21,
2018.

The AJ noted that the termination was not an issue in the complaint at hand. Further, the AJ
found that Complainant continued to engage in harassing conduct towards the employees within
the district through emails. The AJ noted that Complainant’s representative during the EEO
complaint process also advised Complainant that he was making a mistake with his
correspondence and suggested that he stop sending emails. Following Complainant’s
correspondence, the Assistant Superintendent sent Complainant a letter indefinitely barring him
from entry to the Daegu High School property. The Assistant Superintendent cited the
antagonism displayed by Complainant toward the Principal and faculty as the reason for the
action. During this time, the Principal sent an email to other Principals addressing concern that a
private volleyball program run by Complainant and his wife appeared to be school sponsored. In
his May 22, 2014 email, the Principal noted that Complainant is not an approved volunteer at the
high school. As to claim 3, the AJ indicated that Complainant never applied for reinstatement as
he claimed in his complaint. Finally, as to claim 4, the AJ noted that Complainant applied for
the position at the Ryukyu Middle School. The Ryukyu Principal had tentatively selected
Complainant for the position. However, when the Okinawa Superintendent learned that
Complainant was terminated from his Daegu position for threatening violence against the
Principal, Complainant’s tentative offer of employment was rescinded. The AJ found that these
facts were not in dispute.

As for claims 1 – 3, the AJ noted that Complainant failed to have standing to file the EEO
complaint, and in the alternative, failed to show that he was subjected to unlawful discrimination.
The AJ found that Complainant lacked standing to allege claims 1-3 as Complainant is not an
employee nor applicant for employment. Further, the AJ determined that there was no question
that Complainant engaged in a pattern of conduct that was harassing and threatening to Agency
officials. As such, the AJ found that the record supported the letter barring Complainant from
entry to Daegu High School. Further, as to claim 2, the AJ held that Complainant failed to show
that the Principal’s email clarifying that Complainant’s volleyball camp was not affiliated with
the high school constituted unlawful discrimination. Finally, as to claim 3, the AJ determined
that there was no evidence nor dispute that Complainant never applied for reinstatement to his
substitute teacher position at Daegu High School. Therefore, the AJ concluded that Complainant
failed to show that he was subjected to discrimination with respect to claims 1-3.

As to claim 4, the AJ found that Complainant failed to demonstrate that the Agency’s failure to
hire Complainant for a science teacher position at Ryuku Middle School constituted
discrimination and/or retaliation. The AJ held that the Agency provided legitimate,
nondiscriminatory reasons for rescinding Complainant’s tentative offer of employment. The
Agency showed that the offer was rescinded after the Ryuku Principal learned that Complainant
had been terminated from his prior substitute teaching position in Daegu for threatening violence
towards the Principal. The AJ noted that it was undisputed that Complainant engaged in
misconduct and was terminated.
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Finally, the AJ determined that Complainant did not provide any evidence to demonstrate that he
was subjected to discrimination based on his race, color, age, and/or prior EEO activity.
Therefore, the AJ concluded that there were no material facts in dispute and that Complainant
failed to substantiate his claims of discrimination and unlawful retaliation.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant appealed, asserting that Complainant was subjected to retaliation based on his close
association with his wife, who had engaged in prior protected EEO activity by filing complaints
against the Daegu High School. He further argued that he was subjected to retaliatory
harassment and that the Agency could not justify its actions taken against Complainant. As such,
Complainant argued that the Commission should reverse the AJ’s grant of summary judgment
and remand the matter for a full hearing.

The Agency did not submit any argument in response to the instant appeal.

ANALYSIS AND FINDINGS

Summary Judgment

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. Here, Complainant
argued that there were credibility determinations which were outstanding. He argued that the
Agency failed to provide justification for treating Complainant “so horribly.”
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However, we note that Complainant did not identify any inconsistencies in accounts from
witnesses or specific genuine issues of material fact. As such, we are not persuaded by
Complainant’s assertion that there were outstanding credibility determinations. Ultimately, the
AJ correctly determined that there are no genuine issues of material fact or credibility that
merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate.

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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory
reasons for its actions. The Agency demonstrated that Complainant’s abusive emails and threats
justified the letter raised in claim 1 barring Complainant from Daegu High School. Further, the
Principal sent the email at issue in claim 2 in order to clarify that Complainant’s volleyball camp
was not affiliated with the High School. As to claim 3, the Agency did not reinstate
Complainant to his former substitute teacher position for Complainant failed to make any such
request. Finally, as to claim 4, the Agency demonstrated that Complainant’s tentative offer was
rescinded when the officials at Kyuku Middle School learned that he was removed from his
former substitute teacher position at Daegu High School for threatening the Principal. Finding
that the Agency has met its burden, we turn to Complainant to establish that the Agency’s
reasons were pretext for discrimination and/or retaliation. Upon review, we find that
Complainant failed to do so. Accordingly, we conclude that the AJ properly issued her decision
finding no discrimination.
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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 implementing the AJ’s
decision without a hearing finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

November 5, 2019
Date