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

Equal Employment Opportunity Commission

Mar 23, 2021

Appeal No. 2020000470 (E.E.O.C. Mar. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerold Y.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020000470 Hearing No. 480-2019-00156X Agency No. PE-FY18-023 DECISION On October 22, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 24, 2019 final order concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Teacher assigned to Kubasaki High School (KHS), Pacific South District, DoDEA Pacific in Okinawa, Japan. On February 13, 2018, Complainant filed a formal complaint alleging he was subjected to unlawful retaliation for prior EEO activity when:2 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 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1-2. 2020000470 2 1. from October 25, 2013 to March 1, 2018, the former Area Director of DoDEA-Pacific, the Superintendent of DoDEA-Pacific South District, the former Director of Student Excellence for DoDEA-Pacific, and the former Principal of KHS, subjected him to harassment/a hostile work environment as follows: a. on October 25, 2013, the former Area Director of DoDEA-Pacific did not allow Complainant to select the chaperone for the Kubaski Girls Volleyball team. The former Area Director opted to select [a named Pacific Area Office employee]; b. in November of 2013, the Superintendent of DoDEA-Pacific South District subjected him to a management investigation; c. on November 4, 2013, the Superintendent recommended firing him; d. on November 26, 2013, the Superintendent delayed in approving the Kubasaki Girls Volleyball team’s trip to Tokyo; e. on March 5, 2014, the Superintendent delayed in approving the Kubasaki Girls Volleyball team’s trip to Tokyo; f. on April 21, 2014, the Superintendent delayed in approving the Kubasaki Girls Volleyball team’s trip to Taiwan; g. on October 8, 2015, the former Principal of Kubasaki High School (KHS) denied his request to hold a fundraiser for the Kubasaki Girls Volleyball team; h. on December 7, 2015, the Superintendent accused him of recruiting students from Kadena High School to play volleyball at KHS and Complainant stated the allegation disturbed him; i. on December 7, 2015, the Superintendent declined to meet with him; j. on March 9, 2016, the former Principal of KHS delayed sending his trip requests for the Kubasaki Girls Volleyball team’s trip to the Superintendent; k. on May 26, 2016, the Superintendent denied his request to take the Kubasaki Girls Volleyball team to a tournament in Taiwan; l. on July 12, 2016, the former Principal changed his classroom assignment from room 509 to room 115; m. on August 17, 2016, the former Principal warned the Superintendent that Complainant had asked her to support his efforts to take the Kubasaki Girls Volleyball teams on trips; 2020000470 3 n. in October of 2016, the former Principal directed Complainant to return a donation from the American Women’s Welfare Association charity; o. in October of 2016, the former Principal yelled at him and ordered him to use his credit card to secure hotel rooms for the Kubasaki Girls Volleyball team; p. on October 26, 2016, the former Principal ordered him to use his credit card to secure hotel rooms for the Kubasaki Girls Volleyball team; q. in November 2016, the Superintendent directed him to stay at the Walker Barracks rather than the Dragon Hill Lodge during a trip to Korea with the Kubasaki Girls Volleyball team; r. on November 14, 2016, the former Principal conducted a classroom observation of his class; s. on August 24, 2017, the Superintendent stated he would be fired if he took leave to attend a volleyball tournament in Taiwan with a local volleyball club; t. on September 5, 2017, the former Director of Student Excellence for DoDEA-Pacific declined to meet with him; u. on November 7, 2017, the Superintendent stated he “had better watch it” or he would be fired; v. on November 7, 2017, the Superintendent did not approve funding for two trips for the Kubasaski Girls Volleyball team; and 2. on March 1, 2018, he was not selected for the position of Far East Soccer Tournament Coordinator. 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. Complainant did not respond to the motion. 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 that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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). 2020000470 4 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 in Complainant’s favor. 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. We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no discrimination.3 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. 3 On appeal, Complainant does not challenge the March 16, 2018 partial dismissal issued by the Agency regarding six other allegations. Therefore, we have not addressed these issues in our decision. 2020000470 5 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). 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. 2020000470 6 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 March 23, 2021 Date