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

Equal Employment Opportunity Commission

Apr 18, 2022

Appeal No. 2021000379 (E.E.O.C. Apr. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emmitt E.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2021000379 Hearing No. 570-2017-00279X Agency No. PE-FY16-067 DECISION On October 19, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND Complainant worked as an English Teacher at the Agency’s Seoul American Middle School (SAMS) at Yongsan Army Garrison, Republic of Korea. During the period at issue, Complainant’s supervisor was the SAMS Principal (female, Caucasian, age 56). On July 1, 2016, Complainant retired. On April 25, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on race (Caucasian),2 sex (male), disability, age (75), and in reprisal for prior protected EEO activity (“8S0D15003”) when: 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 2021000379 1a. On February 2, 2016, the SAMS Principal met with Complainant and stated Complainant was not meeting his performance standards. 1b. On February 12, 2016, the SAMS Principal provided Complainant a “Memo for the Record” for retaliating against a student. 1c. On February 20, 2016, the SAMS Principal prohibited Complainant from showing movies, taking his class to the library, or doing class projects. 1d. On February 23, 2016, the SAMS Principal conducted an observation of Complainant’s class. 1e. On February 24, 2016, the SAMS Principal conducted an observation of his class. 1f. On March 4, 2016, the SAMS Principal stated if Complainant did not retire, she would place him on an Intervention Plan (IP) and a Performance Improvement Plan (PIP). 1g. On March 19, 2016, the SAMS Principal denied Complainant’s request to rescind his resignation. 1h. On March 21, 2016, the SAMS Principal conducted an observation of Complainant’s class. 1i. On April 11, 2016, Complainant’s co-worker, who was also a teacher at SAMS, chided Complainant for selecting his representative and referred to Complainant’s representative as a “nigger lawyer.” 2. On March 4, 2016, the SAMS Principal denied Complainant’s request for a reasonable accommodation for his disability. After an investigation, 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). On November 21, 2016, Complainant’s representative requested a hearing. On April 18, 2018, the assigned AJ issued an Order of Acknowledgment and Scheduling of Initial Conference that contained instructions to the parties for conducting pre-hearing discovery. On February 10, 2019, the Agency filed a Motion for Sanctions against Complainant’s representative for failure to appear for a scheduled deposition and failing to provide a teleconference number for the deposition. On February 12, 2019, Complainant’s Representative filed a response opposing sanctions. 2 Complainant’s EEO representative was African American. 3 2021000379 On September 30, 2020, the AJ granted the Agency’s motion and dismissed the request for a hearing as a sanction for Complainant’s representative’s repeated failures to comply with the AJ’s discovery orders. The AJ’s dismissal decision remanded the matter to the Agency for a final Agency decision. On October 19, 2020, Complainant’s representative filed the instant appeal contending that the AJ’s sanctions were unjustified. ANALYSIS AND FINDINGS In his September 30, 2020 remand order, the AJ directed the Agency to issue a final decision based on the existing record. In essence, the AJ ordered the Agency to issue a decision on the merits of the complaint pursuant to 29 C.F.R. § 1614.110(b) based on the evidence developed during the investigation. After thorough examination of the record, we conclude that although the AJ remanded the complaint to the Agency for issuance of a final decision pursuant to § 1614.110(b), the record does not contain a final Agency decision and there is no evidence that the Agency has since issued a final decision while this matter has been pending on appeal. EEOC’s regulations anticipate a final decision under § 1614.110(b) to be issued within sixty days of the Agency’s notice of the request for the decision. Therefore, we conclude that the Agency that a reasonable time for issuing a final decision in this matter has passed. We note that the instant appeal was filed less than three weeks after the AJ’s decision and appears to be an appeal directly from the AJ’s sanctions. However, EEOC regulations do not permit interlocutory appeals such as this one. Cecile T. v. Env’t Prot. Agency, EEOC Appeal No. 0120161511 (Dec. 20, 2016). Once the Agency issues a final decision and Complainant chooses to refile his appeal, he may raise his concerns about the AJ’s decision at that time. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we REMAND this matter to the Agency for the issuance of a final decision on the merits of the subject claims, pursuant to 29 C.F.R. § 1614.110(b), and in accordance with the ORDER below. ORDER To the extent it has not already done so, within thirty (30) calendar days of the date this decision, the Agency shall issue its final decision addressing the merits of Complainant's complaint pursuant to 29 C.F.R. §1614.110(b), with appropriate appeal rights to this Commission. 4 2021000379 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 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. 5 2021000379 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 6 2021000379 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 April 18, 2022 Date