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

Equal Employment Opportunity Commission

Nov 2, 2022

Appeal No. 2022001477 (E.E.O.C. Nov. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colby S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2022001477 Hearing No. 570-2019-00978X Agency No. EU-FY18-089 DECISION On January 21, 2022, 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 December 22, 2021 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, which began in August 2017, Complainant worked as a 5th Grade Teacher, TP-CL 09, at the Agency’s Smith Elementary School (Smith ES), U.S. Army Garrison Rhineland-Pfalz in Kaiserslautern, Germany. 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 2022001477 On September 17, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (Traumatic Brain Injury [TBI]), and in reprisal for prior protected EEO activity (2017 report of harassment to management) when: 1. From August 2017 to present, the Smith ES, Principal, the Smith ES Assistant Principal, Europe East District Superintendent, and Europe East Community Superintendent, subjected Complainant to harassment and failed to stop harassment by co-workers (including over 40 various discrete incidents as described by Complainant). 2. On June 8, 2018, the Smith ES Principal issued Complainant a Letter of Instruction pending an investigation into his alleged behavior directing him to work from home. 3. On June 15, 2018, the Smith ES Principal issued Complainant a Letter of Reprimand. 4. On October 3, 2018, the Europe East Community Superintendent issued Complainant a Letter of Instruction removing him from the classroom and directing him to work from home. After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s May 20, 2020 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on November 12, 2021. The Agency failed to issue a final order within forty days of receipt of the AJ’s decision, so the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination or retaliation as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. ANALYSIS AND FINDINGS 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. 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”); EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.B. (Aug. 5, 2015) (providing that an AJ’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. 3 2022001477 In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. Id. at Ch. 9, § VI.A. (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”). 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. See Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where an AJ determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the AJ 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 AJ 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 AJ could find in favor for the non-moving party. See 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. 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. 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 failed to present argument or evidence to challenge the adequacy of this record’s development. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. First, the AJ examined Complainant’s characterization of his co-workers and supervisors at Smith ES as “mean girls” in the context of disparate treatment based on sex. For example, Complainant described staff meetings where he was told to be quiet, but that the Smith ES Principal and Assistant Principal tolerated female teachers expressing their opinions and talking over one another. To the contrary, witnesses described Complainant raising his voice with his supervisors and yelling at other teachers during the meetings. The record indicates that Complainant was discouraged from speaking up during group discussions because he had done so in a manner that was deemed as emotional or disrespectful. 4 2022001477 Next, the AJ analyzed Complainant’s claims that the Agency had subjected him to a hostile work environment because of his disability (TBI). Complainant suffered symptomatic episodes of TBI that have temporarily impaired him from performing his job. After he suffered an TBI incident while teaching his class on December 6, 2017, the Agency sent the parents of Smith ES students a letter from the Smith ES nurse that stated the following: Today students . . . witnessed [Complainant] have a medical episode. Due to a past injury, [Complainant] can have sudden symptoms that look like a severe stroke. The episode is painful for him but does resolve shortly after taking medication. These episodes are also seldom in occurrence but have the possibility to occur at any time. Around 9 AM, [Complainant] began to have stroke like symptoms. The students were removed from the class and taken to the cafeteria. In the cafeteria I explained the symptoms that [Complainant] had and what the class should do if these symptoms occur again. [Complainant] had previously given students an action plan in the event of a medical event. Following this morning's episode, the students were understandably concerned and had many questions. I answered all of the questions asked but they may have more questions in the future. Please encourage them to come to my office if they need to discuss this incident further. Please call me if you have any questions or concerns. The Smith ES Principal and I would like to express that your student's safety is a priority, and we will continue to ensure that they remain safe at Smith ES as we also support [Complainant]. We observed, as did the AJ, that this letter to parents was carefully written in an appropriate manner to explain the situation and express management’s support for Complainant without disclosing his confidential medical information. Meanwhile, other than his bare allegations themselves, no testimony or documents supported his position that the Agency mistreated him or harassed him as a result of his TBI disability. Finally, the AJ considered but properly rejected, Complainant’s claims that he was disciplined and instructed to work from home, as opposed to teaching at Smith ES, in reprisal for reporting that students were being bullied. Additionally, Complainant stated that two of the three witnesses improperly accused him of misconduct after he had accused those teachers of harassing him. Here, however, the record revealed that on two occasions other employees overheard Complainant using violent language while speaking in a voice mimicking the Sesame Street character Elmo. Complainant did not deny that he had said words to the effect of “Welcome to Elmo's world. In Elmo's world, we kick in teeth and put them back in your face.” Instead, Complainant insisted that he was clearly joking. We find Complainant’s verbalizations of violent intent to be inappropriate in any workplace and therefore the Agency’s investigation into the matters and their decision to discipline Complainant was wholly justified as opposed to being retaliatory. Vaughn C. v. Dep’t of State, EEOC Appeal No. 2021000317 (Jan. 26, 2022). 5 2022001477 In sum, we agree with the AJ, finding no evidentiary support for Complainant’s accusation that he had been mistreated based on unlawful animus against his EEO protected statues. Rather than discrimination or harassment, Complainant’s claims described events comprised of routine supervision, personality conflicts, or general indignities that are typical of a common workplace. Hertha W. v. Dep’t of State, EEOC Appeal No. 2021002040 (May 23, 2022). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s summary judgment decision finding that Complainant failed to prove discrimination as alleged. 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). 6 2022001477 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. 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 2, 2022 Date