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

Equal Employment Opportunity Commission

Mar 24, 2021

Appeal No. 2020001380 (E.E.O.C. Mar. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rachel T.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020001380 Hearing No. 430-2016-00214X Agency Nos. DD-FY15-100, DD-FY15-106, DD-FY15-107 DECISION On September 4, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning her 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 action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant Principal, AD-1710-08, at the Agency’s Gordan Elementary School at Fort Bragg, North Carolina. On August 6, 2015, August 10, 2015, and August 12, 2015, Complainant filed three EEO complaints that collectively alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Brown), age (53), and in reprisal for prior protected EEO activity 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. 2020001380 2 1. on July 15, 2015, the Superintendent of the Georgia/Alabama School District did not select her for the position of Principal, Maxwell Elementary and Middle School, Maxwell Air Force Base, under RPA No. 15JUN7XHEAL209658; 2. on June 29, 2015, the same Superintendent did not select Complainant for the position of Principal, Stowers Elementary School, Fort Benning, Georgia, under RPA No. 15JUN7XHEAL2095343; 3. on July 21, 2015, the Superintendent, New York, Virginia, Puerto Rico School Districts, did not select Complainant for the position of Principal, Antilles Middle School, Fort Buchanan, Puerto Rico, under RPA No. 15JUN7XHE41205402; and 4. on July 28, 2015, the Superintendent, North Carolina/Camp Lejeune School District did not select Complainant for the position of Principal, Heroes Elementary School, Camp Lejeune, North Carolina, under RPA No. 15JUN7HXENC209745. In Claim (1), Complainant was one of 32 qualified internal candidates, and in Claim (2), Complainant was one of 30 internal candidates. A three-person interview panel engaged in a single, uniform interview process for both positions in these claims. The selectee in Claim (1) had an overall interview score of 55.3 and favorable work references. Similarly, the selectee in Claim (2) had an overall interview score of 51.3 and had favorable work references. However, Complainant’s interview score was 45.2, and she did not have favorable work references. In Claim (3), Complainant was one 53 candidates, but was not one of seven candidates the Agency referred for an interview. The selectee was ranked as the top candidate and had prior experience at the middle school level. The Agency noted that the selectee was also bilingual and “familiar with the culture and school operations whose parent-student population is 85 percent Spanish speaking.” Complainant was also not interviewed in Claim (4). At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings. The complaints were subsequently consolidated. On April 30, 2019, the AJ assigned to the matter notified the parties that she had determined sua sponte that the complaint did not warrant a hearing and sought comments from the parties. Over Complainant's objections, the AJ issued a summary judgment decision on June 19, 2019, finding that Complainant was not subjected to discrimination or reprisal as alleged. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that she is a pro se class agent and seeks class certification of her complaint. In addition, Complainant raises arguments regarding the Agency’s failure to issue a final order. Accordingly, Complainant requests that the AJ’s decision be overturned. 2020001380 3 ANALYSIS AND FINDINGS As a preliminary matter, we note that Complainant seeks class certification for the first time in her appellate brief. The record is devoid of evidence that Complainant requested the AJ to consider this matter a class action. We note that 29 C.F.R. § 1614.204 (b) states that a Complainant may move for a class at any reasonable point in the process, and that class certification may be denied when the Complainant has unduly delayed in moving for certification. See Milano v. Soc. Sec. Admin., EEOC Appeal No. 05A50732 (Apr. 26, 2005) (Complainant's request for class certification was raised for the first time on appeal, and thus was not properly before the Commission). Complainant has not provided any justification for the undue delay in requesting class certification; therefore, we will not address this matter herein. Moreover, regarding Complainant’s arguments concerning the Agency’s failure to issue a final order, as noted above, 29 C.F.R. § 1614.109(i) anticipates this exact possibility and provides that the AJ’s decision becomes the Agency’s final action after the Agency fails to issue a final order within 40 days of receipt of the AJ’s decision. Therefore, the Commission finds no basis to grant Complainant’s request for relief in that regard. The Commission will now address the merits of this matter. 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). 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). An AJ may issue a summary judgment decision 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 summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 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. 2020001380 4 Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. As explained above, Complainant was not referred for an interview in connection with two of the job vacancies but was interviewed in two others. For the two in which Complainant was interviewed, the selectees both had higher interview scores, better applications, and positive work references. Regarding the position at issue in Claim (1), Agency officials confirmed that the eventual selectee had an exceptional interview and effectively demonstrated his experience during the interview which resulted in an overall score of 55.3 which was higher than Complainant’s score of 45.2. Complainant’s former supervisor provided a reference and stated that she would not hire or rehire Complainant because Complainant did not “possess the leadership readiness for the position of Principal” and that Complainant struggled with making sound decisions and received numerous complaints from parents and staff regarding her inability to manage the school. As to Claim (2), the selectee was chosen based on her seven years of experience, an excellent interview with a score of 51.3, and outstanding supervisory reference. By contrast, Complainant had an overall interview score of 45.2 and unfavorable references. Regarding the positions at issue in Claims (3) and (4), Complainant was not referred for an interview and further consideration as a review of her application materials revealed she was not among the best-rated candidates. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Construing the evidence in the light most favorable to Complainant, the Commission finds no evidence that Complainant's protected classes were a factor in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. 2020001380 5 As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action, because the Equal Employment Opportunity Commission Administrative Judge's issuance of summary judgement was appropriate and a preponderance of the evidence of record does not establish that discrimination occurred. 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). 2020001380 6 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 March 24, 2021 Date