Hayden K.v.Dep't of Def.

Equal Employment Opportunity Commission

Jan 24, 2018

EEOC Appeal No. 0120151347 (E.E.O.C. Jan. 24, 2018)

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

Hayden K.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120151347

Hearing No. 480-2013-00069X

Agency No. PE-FY12-065

DECISION

On February 27, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency’s February 5, 2015, final action
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII),
42 U.S.C. § 2000e et seq. Our review is de novo. For the following reasons, the Commission
MODIFIES the Agency’s final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Teacher at the
Agency’s CT Joy Elementary School at a Naval station in Chinhae, South Korea. Complainant
was hired on September 3, 2010, and had a two-year probationary period.

On May 24, 2012, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Caucasian), sex (male), and in reprisal for his
prior protected EEO activity under Title VII when he was terminated from his position on March
23, 2012, during his probationary period.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing by video conference on November 12-13, 2014, and issued a decision on
December 9, 2014.

The AJ found that no discrimination occurred. The AJ stated that the CT Joy School is a school
with only four to five teachers and 20 to 27 students. The AJ noted that Complainant also served
as the faculty representative charged with raising concerns with the school Principal. According
to the AJ, the Principal (African-American female) began serving in her position at the school in
August 2011, and had fourteen years of experience with the Agency. The AJ stated that the
Superintendent of the Korea School District (African-American male) was based in Seoul and
had no direct working relationship with Complainant. The Principal was the official who
decided to terminate Complainant. The AJ noted that the Principal discussed her decision with
the Superintendent and the Agency’s labor-management officials. The AJ stated that the
decision to terminate was based on Complainant’s consistent inability to keep students on task
and maintain effective classroom discipline and management.

The AJ stated that the Principal cited several incidents in support of her decision. The AJ stated
that the Principal testified that during room observations she conducted of Complainant’s
classrooms, students were off task; two students were disruptive without consequences; and
students were unaware of what they should be doing. The Principal stated that she observed on
one occasion in December 2011 that Complainant was still preparing for class when class should
have started, thus not fulfilling the bell-to-bell instruction policy. The Principal stated that in
September 2011, Complainant breached confidentiality when he released confidential
information on an employee. The Principal testified that on October 4, 2011, she learned that
Complainant did not leave emergency lesson plans. The AJ stated that on December 9, 2011, a
fire extinguisher was discharged in the classroom by two of Complainant’s students. The AJ
noted that the Principal criticized Complainant concerning the incident, blaming it on his
inadequate management and supervision of his students. Complainant denied the Principal’s
statement that he had not reviewed safety precautions in the classroom. Complainant stated that
the fire extinguisher was installed within easy reach of the students in the doorway with no
enclosure. Complainant asserted that he removed the students from the classroom and the two
students involved were suspended.

The Principal cited four dates where she informed Complainant that his classroom door was not
locked at the end of the school day. The AJ noted that on November 2, 2011, the Principal had a
conference with Complainant concerning his failure to obtain approval for a Christmas program.
The Principal testified that Complainant had not sought approval for a program that was not part
of the regular curriculum and it involved students from other classrooms over which he had no
authority. The AJ noted that the Principal also relied in part on her March 6, 2012, unannounced
classroom observation. The Principal testified that she observed ineffective discipline arising
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from student interruptions, ineffective teaching to two ESL students, and an inability to assess
progress of all students.

The Principal stated that when she discussed Complainant’s performance with him, he was
confrontational and demonstrated resistance to constructive feedback and recommendations.
The Principal asserted that she counseled Complainant for his inability to differentiate
instructional techniques and strategies, the importance of having quality emergency lesson plans,
to improve his teaching methods to engage all students in the learning process, about students
being off task and not understanding lessons and him not checking for learning. According to
the Principal, she counseled Complainant for students not following instructions, for lack of
routines, and that student accountability became a safety and security issue.

The Principal asserted that in November 2011, she met with Complainant as a follow-up to his
poor performance during a walkthrough evaluation. The Principal stated that in December 2011,
she had a conference with Complainant regarding classroom management where she shared
concerns from other staff about the behavior of his students. According to the Principal,
Complainant had been counseled that bell-to-bell teaching was expected. The Principal asserted
that Complainant was counseled on three occasions that the agenda-standards-objectives should
be posted prior to the start of instruction. The Principal stated that in December 2011,
Complainant received a second notice that his classroom was unsecured. Additionally, in
December 2011, the Principal noted that she had a conference with Complainant after the fire
extinguisher incident. In February 2012, the Principal rejected Complainant’s request for a
transfer based on his performance.

The Principal maintained that she treated all employees fairly and equitably. The Principal
explained that Complainant as a probationary employee required several formal observations
unlike two teachers on professional growth plans. According to the Principal, a Caucasian
served as a substitute teacher during the school year when Complainant was terminated. The
Principal acknowledged that the only disciplinary action Complainant received was a verbal
warning in January 2012. The Principal admitted that other teachers did not post their standards
but that Complainant was the only teacher who was repeatedly not ready for class. The Principal
acknowledged that she did not adhere to past practice by failing to issue Complainant a mid-year
rating. The Principal asserted that Complainant was informed, counseled and had the
opportunity to request assistance for areas where he needed support.

The Principal stated that the other teachers had emergency lesson plans, that the other teachers
did not spend large amounts of time with one or two students while the rest of the class worked
on something else, and that one of the teachers was not interrupted often by students. The
Principal asserted that she did not remember one of these teachers having multiple outbursts
during staff meetings. The Principal acknowledged that this teacher left students working
unsupervised in the staff kitchen but said she counseled the teacher. The Principal asserted that
the same notification regarding security was sent to the two other teachers who left their
classroom doors unlocked.

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The AJ stated that Complainant testified that the Principal observed him on numerous occasions
in 2011 and 2012, and did not criticize his performance or ever tell him that his performance was
deficient. The AJ noted that one of Complainant’s students was the Principal’s son and that
Complainant had informed the Principal that her son was not using his time wisely. Complainant
testified that the Principal advised him that it was not a beneficial practice of his students to use
the teacher’s manual to check the score. Complainant testified that he and the Principal had
philosophical differences in teaching methods. According to Complainant, he encouraged
students to motivate themselves but the Principal regarded this approach as a weakness and
ineffective. The AJ noted that in one or two instances, Complainant presented seminars on
differentiation teaching. This method of teaching relates to instructing different students or a
group of students within different achievement levels. The AJ stated that Complainant also
developed clear student expectation rules and issued newsletters to parents.

With regard to the Principal’s statement concerning bell-to-bell instruction, Complainant stated
that while he accessed the necessary materials, he wrote the daily question on the board, or while
students answered the daily question, he would review their homework and notes from parents,
but that he did not waste instructional time. According to Complainant, another teacher was
observed not being ready for class and frequently wasting up to twenty minutes getting ready for
a lesson. Complainant further stated that his October formal observation was conducted in the
upper grades math class which was not his primary assignment, a class that he took over for the
teacher who resigned.

Complainant argued that the Principal targeted him for termination early in the year and then
sought opportunities to misconstrue situations and events to justify her decision. Complainant
stated that instead of valuing his classroom management approach, the Principal passed
judgment on him when one student was off task. Complainant maintained that the Principal
refused to accept his intervention techniques because they were not aggressive enough and he did
not humiliate students publicly. Complainant asserted that when he took over the math class of
the teacher who resigned, the Principal took over his class for a few months. According to
Complainant, she yelled at the students when frustrated and had an aggressive management
approach. Complainant claimed that his classroom management style was evaluated by many
past administrators as appropriate and effective. Complainant asserted his philosophy of
instruction was based on students having different needs and him meeting those needs.
Complainant stated that his lesson plans outlined how he used flexible skill groups to
differentiate learning. Complainant noted that at one unannounced visit by the Principal, she
witnessed what she interpreted as inconsistent classroom management, but rather what it
reflected was the effectiveness of his differentiation. Complainant explained that each student
had target behaviors. As an example, Complainant stated that the Principal witnessed a student
shout out answers and receive leniency because for that student, Complainant was targeting
being engaged and on task so he was willing to overlook the shouting since he was making
progress toward other goals.

Complainant asserted that he encouraged a positive learning environment and that students had
autonomy over their learning and the freedom to ask for support when needed. Complainant
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claimed that others in his work unit had a similar approach and did not receive similar negative
reaction or any discipline. With regard to the Principal’s accusation that he did not actively
engage all students in the learning process, Complainant stated that he observed two other
teachers spend large amounts of time with one or two students while the rest of the class worked
in small groups, but they were not reprimanded. Complainant added that the two other teachers
did not have a sightline of their students when working with other students.

Complainant stated that the Principal accused him of allowing constant interruptions during
instructional time, but that his wife observed on multiple occasions students interrupting another
teacher and she was not reprimanded. Complainant claimed that the Principal said he was
confrontational but a teacher who had multiple outbursts during staff meetings was not
reprimanded. According to Complainant, he was reprimanded and was the only teacher
investigated regarding leaving his classroom door unlocked, but that two other teachers also left
their door unlocked.

Complainant stated that the Principal inquired about whole group instruction and he responded
that he did not believe it would provide the differentiation needed by students in a four-grade
span in one hour. Complainant stated that he created a table for students to work together when
needed and they often helped each other on the computers. Complainant maintained that he
made an effort to check the learning of each student every day. Complainant contended that the
Caucasian teacher who resigned was harassed by the Principal and left after one week.
Complainant noted that when he discussed his feeling of harassment with the two Korean
teachers, they reported their interactions with the Principal were entirely different. According to
Complainant, after he was terminated, there were no Caucasian staff members. Complainant
stated that at the Christmas performance, the Principal recognized the contributions of Korean
staff members but not him, even though he directed at least half of the program.

Complainant asserted as to his formal observation on October 19, 2011, it was brought to the
attention of the Superintendent that he had been observed in the upper grades math class rather
than his primary assignment. Complainant maintained that the Superintendent agreed that he
should have been evaluated based on his primary assignment. According to Complainant, the
Principal used documentation from the upper grades math class as grounds for his termination
and omitted documentation for his primary assignment in the second grade classroom.

One witness at the hearing was the Command Ombudsman (African-American female). The
Ombudsman testified that the Principal made inappropriate comments to her about Complainant
very early in her tenure at the school. According to the Ombudsman, the Principal mentioned
after the sudden resignation of a teacher (Caucasian) the second week of school that it was one
down, two to go, with one of the two being Complainant. The Ombudsman stated she asked the
Principal why she said that and the Principal replied she did not trust Complainant but that it
sounded like he had questioned her authority. The Ombudsman testified that she did not believe
the Principal would follow through because everyone in the community thought Complainant
was a pretty good teacher. The Ombudsman further testified that she believed Complainant was
discriminated against when he was terminated but she could not say for sure it was racism. As
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for the other individual who the Principal wanted to get rid of, the Ombudsman stated that this
was a Korean national who was serving as the Principal’s secretary. According to the
Ombudsman, the Principal asserted that she wanted to replace her secretary because he had a
doctorate and could be teaching instead of being a secretary and he was not a good secretary.

Another witness at the hearing was a parent (Caucasian male) of one of Complainant’s second
grade students. He testified that Complainant was regarded in the community as the best teacher
at the school. He stated that his son no longer looked forward to going to school after
Complainant was terminated and that he left the Naval base in order to get away from the
school’s discriminatory nature. The parent testified that he was also a youth sports coach to kids
including the Principal’s son. The parent recalled the Principal came once to practice and
offered cake to two African-American coaches but not to him. He stated that on another
occasion African-American coaches were invited by the Principal to a dinner but he was
excluded. He further stated that in another instance some African-American friends heard the
Principal say you dance pretty good for a white girl. The parent testified that at an additional
social gathering, the Principal invited only high ranking officials along with African-American
enlisted military members.

The Principal had been transferred from her prior position as an Assistant Principal at an Agency
school in Germany. Another witness (Caucasian male) had been a teacher at that school as well
as the faculty representative. This witness testified that the Principal harassed him for two years
and mistreated him based on his race and sex. The teacher testified that after a parent at the
school adopted an African-American child, the Principal said that white people should not be
allowed to adopt black children. The teacher maintained that the Principal had conflicts with
nearly every Caucasian woman within weeks of her arrival. The teacher stated that when the
Principal yelled at the Caucasian art teacher, an African-American student told the art teacher not
to take it personally because she hates white people, everybody knows that. According to the
teacher, African-American students who were sent to the Principal’s office were given candy and
sent back to class with no official response while non-African-American students were treated
harshly and often given detention, Saturday school assignments and work details. The teacher
speculated in his affidavit that the Principal hates Caucasians, and especially Caucasian females,
due to her first marriage and the manner in which it ended. The teacher further speculated that
the Principal uses her positions to release all of her anger and frustration at her first husband on
any Caucasian target she can find.

The District President of the teacher’s association (Asian female) testified that the Principal
discriminated against Complainant. This witness stated that she read all correspondence between
Complainant and the Principal and there was one oral reprimand, but nothing substantial enough
to justify termination. The witness further testified that the Principal treated the other staff
equally so it was clear she targeted Complainant. The witness asserted that she informed the
Superintendent that the Principal was not listening to Complainant and had a set agenda that she
was pushing through without listening to reason. According to the District President, on March
8, 2012, she and Complainant met with the Superintendent concerning Complainant’s problems
with the Principal. The District President testified that the Superintendent suggested they discuss
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the situation with the Principal so she could explain why Complainant was at risk. The District
President stated that a meeting was set up and the Principal terminated Complainant at the
beginning of the meeting.

The Superintendent testified that Complainant’s termination was based on classroom
performance and observations made by the Principal, and was not disciplinary. The
Superintendent testified that Complainant was counseled many times by the Principal on his
performance, but failed to improve sufficiently. The Superintendent stated that after
Complainant was terminated, the faculty consisted of two Asians and one African-American.
According to the Superintendent, all educators new to the Agency were placed at a provisional
level for a two-year period. The Superintendent stated that educators were rated on five critical
professional performance elements, for which the rating was “meets” or “does not meet.” These
performance elements were mastering content and curriculum; presenting organized instruction;
managing for effective learning; monitoring and assessing student achievement; and promoting
diversity and equity. The Superintendent explained that the final rating system summarized
annual performance as either acceptable or unacceptable.

One of the other teachers (Asian female) stated that prior to working with small groups of
students, she planned a lesson for the rest of the class. She testified that she had emergency
lesson plans as of October 2011. The teacher denied being interrupted multiple times by students
but recalled having a student who usually arrived late and she sometimes had to stop the lesson
to accommodate him. The teacher testified that the Principal did not reprimand her concerning
this matter. The teacher denied having outbursts at staff meetings but said she was assertive in
expressing her opinions in an orderly way. According to the teacher, she was not aware of the
Principal targeting Complainant for issues occurring in other classrooms, but acknowledged that
the non-Caucasian staff members were left alone. The teacher testified that the Principal
instructed her to lock her classroom doors and that the Principal addressed the situation with her
concerning her students being unsupervised in the kitchen.

Another teacher (Asian female) testified that she kept her class actively engaged in differentiated
centers, independent work, and small group structured settings. She stated that she had a full-
time teacher’s aide in her class to monitor students while she worked with small groups. The
teacher stated that she had emergency lesson plans as of October 2011. The teacher testified
there were times she left her classroom door unlocked and the Principal informed the entire staff
they had to secure their classroom doors before leaving the school. According to this teacher,
she posted standards in her classroom as of January 2012.

An additional witness was a former teacher (Caucasian female) at the South Korea school who
departed the school before the Principal arrived. This witness testified that Complainant was a
very good teacher who was well-organized in his lessons and had good classroom management
when he was in her classroom. The witness testified that she observed Complainant teach music
during specials and also teach her students lessons on behavior and respect.

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The Assistant Superintendent testified that she observed Complainant’s math class for 15-20
minutes in November 2011. She testified that she did not observe much teaching but rather
Complainant checking the students’ work against a book. According to the Assistant
Superintendent, it concerned her that it looked like he was checking homework and there was not
much interaction with the other students. She stated that she disagreed with this approach in an
elementary school and that she relayed her concern to the Principal.

The AJ found that Complainant failed to establish a prima facie case of discrimination under the
alleged bases of race, sex and reprisal. The AJ stated that there were no similarly situated non-
Caucasian or female employees who had the same problems as Complainant yet were retained.
The AJ noted that a probationary biracial female was terminated by the Principal due to her
performance in 2012 or 2013. The AJ found that the Principal credibly testified regarding her
observations of Complainant’s teaching deficiencies, a problem with planning when he did not
have an emergency lesson for his math class, and the fire extinguisher incident. The AJ stated
that the Principal notified Complainant of his performance problems.

With respect to the alleged comments and actions of the Principal regarding the adoption of
black children and not offering cake, the AJ stated that these remarks demonstrated poor
judgment but were insufficient to show a racial motivation for the termination. The AJ noted
that the Ombudsman had credibly testified that the Principal desired to terminate Complainant
because she did not trust him as he questioned her authority. The AJ reasoned that this was due
to Complainant’s role as a faculty representative rather than his race or gender. With respect to
Complainant’s reprisal claim, the AJ stated that the Principal was not aware of Complainant’s
complaint to the Superintendent at the time she terminated him. The AJ found that the Principal
credibly testified that she decided to terminate Complainant a few weeks before that meeting
occurred. The AJ further found that the Agency articulated nondiscriminatory reasons for the
termination, which Complainant had failed to prove were pretext for discrimination.

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

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ overlooked evidence at the hearing and in the
report of investigation. Complainant states that the AJ did not consider the Agency’s past
knowledge of the Principal’s previous discriminatory behavior toward individuals at other
schools. Complainant notes that the teacher at the school in Germany had been falsely accused
of child abuse by the Principal, and a settlement agreement led to the removal of the child abuse
allegation from his record. Complainant points out that since his termination, the Principal was
placed on administrative leave for what he claims was psychological and verbal abuse of
children at the school.

Complainant maintains that he did not receive formalized criticism utilizing the performance
elements and was not afforded the opportunity to formally challenge the validity of the
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Principal’s claims. Complainant states that interactions with the Principal were mischaracterized
as counseling sessions by the Principal and he was not shown documentation of these events at
the time. Complainant references his positive performance review from the prior Principal at the
South Korea school as well as before and after his termination in a school district in Kentucky.
As to the fire extinguisher incident, Complainant states that he was assisting another student who
was leaving the class that day when the incident occurred. Complainant asserts that the students
were stopped before a large amount was expelled. Complainant contends that he was formally
investigated and the incident was utilized toward his termination, but a non-Caucasian teacher
who left students unattended in another room only received a verbal reminder. Complainant
states that he was the only teacher who was formally investigated concerning the classroom
doors being left unsecured. Complainant further claims that the AJ did not include all of the
witnesses he wanted to testify. Additionally, Complainant argues that the Agency was not
forthcoming with documentation pertaining to the termination and that evidence was presented at
the hearing that had not been previously disclosed.

In response, the Agency asserts that half of Complainant’s non-management proposed witnesses
lacked contact information. The Agency maintains that four proposed witnesses had never met
Complainant and possessed no knowledge relevant to the termination. Moreover, the Agency
states that Complainant raised no objections to the AJ’s pre-hearing ruling on witnesses and thus
waived the issue concerning limiting witnesses. The Agency opposes Complainant’s argument
concerning a lack of discovery by pointing out that all of its hearing exhibits were provided to
Complainant both eighteen months and a week before the hearing. The Agency asserts that
although Complainant argues that four of his witnesses testified in support of his teaching ability,
not one of them witnessed him teaching in his classroom.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Disparate Treatment/Reprisal

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
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U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
he 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. Tx. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

With regard to Complainant’s contention concerning the AJ’s refusal to allow all of his proposed
witnesses to testify, we find that Complainant has not presented convincing evidence that the AJ
acted improperly in the exclusion of any of the witnesses at issue. As for Complainant’s claim
that evidence was presented at the hearing that had not been previously disclosed, we observe
that Complainant has not refuted the Agency’s position that all of its hearing exhibits were
provided to Complainant both eighteen months and a week before the hearing.

We observe that the Agency adopted the AJ’s decision which found that Complainant failed to
establish a prima facie case of discrimination under the alleged bases. The AJ stated that there
were no similarly situated non-Caucasian or female employees who had the same problems as
Complainant yet were retained. We disagree with the AJ’s prima facie finding in light of the
evidence in the record. Establishment of a prima facie case is not an onerous burden. Everett v.
Environmental Protection Agency, EEOC Appeal No. 01941977 (April 21, 1995); Burdine, at
253. We have concluded that “the elements for establishing a prima facie case are not inflexible
and must necessarily vary with the factual circumstances and bases of discrimination alleged.”
Thomas v. Department of Transportation, EEOC Appeal No. 01945798 (December 12, 1996);
Scura v. United States Postal Service, EEOC Appeal No. 01965021 (October 8, 1998), request to
reconsider denied, EEOC Request No. 05990154 (May 10, 2001).

With regard to disparate treatment, the Commission notes that while comparator evidence is
usually used to establish disparate treatment, Complainant need only set forth some evidence of
Agency actions from which, if otherwise unexplained, an inference of discrimination can be
drawn. See Furnco. The statements by various witnesses suggest that the Principal may have
held a bias against Caucasians and men. In light of those statements, we find that Complainant
set forth a prima facie case of race and sex discrimination with regard to his termination.

As to Complainant’s reprisal claim, the record indicates that the Principal was intent on
terminating Complainant before Complainant and the District President of the Teacher’s
Association raised their concerns about discrimination with the Superintendent in March 2012.
The Principal consulted with the Superintendent and Agency labor-management officials a few
weeks before the meeting between Complainant and the Superintendent. Although
Complainant’s termination occurred shortly after her meeting with the Superintendent, we find
that the termination had already been set into motion before Complainant began to oppose
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alleged discriminatory action. Thus, we find Complainant has not established a prima facie case
of reprisal.

The Agency explained that Complainant was terminated based on deficiencies in his job
performance. According to the Principal, the decision to terminate reflected Complainant’s
consistent inability to keep students on task and maintain effective classroom discipline and
management. The Principal cited in support of her conclusions instances where she observed
Complainant in the classroom. The Principal also focused on the fire extinguisher incident and
Complainant’s classroom door sometimes being unlocked. The Principal stated that when she
discussed Complainant’s performance with him, he was confrontational and demonstrated
resistance to constructive feedback and recommendations. The Principal asserted that she
counseled Complainant for his inability to differentiate instructional techniques and strategies,
the importance of having quality emergency lesson plans, to improve his teaching methods to
engage all students in the learning process, about students being off task and not understanding
lessons and him not checking for learning. We find that the Agency has articulated legitimate,
nondiscriminatory reasons for Complainant’s termination.

Complainant attempts to establish pretext by challenging the Principal’s characterization of his
teaching effectiveness and by presenting evidence of a bias that the Principal held toward
Caucasians and males. Complainant argues that his positive prior teacher evaluations at the
school in South Korea and in Kentucky demonstrate that he is an effective teacher. Several
witnesses at the hearing testified that Complainant was well-regarded in the community for his
teaching ability. Complainant explained that his use of differentiation was successful but did not
necessarily conform to the Principal’s philosophy. According to Complainant, the Principal did
not provide him with a mid-year review. Complainant pointed out that the Principal improperly
conducted a formal observation of him in the upper grades math class rather than the second
grade class that was his primary assignment.

It is evident that several factors contributed to the Principal’s animus toward Complainant. We
take note of the fact that both Complainant and the teacher at the school in Germany were faculty
representatives. The record indicates that the Principal’s leadership style did not tolerate
opposition and that Complainant’s status as the faculty representative represented actual and
potential confrontation. The Principal and Complainant also represented different teaching
philosophies. This added to the Principal’s disapproval over time of Complainant’s teaching
methods. However, the difference in their approach to teaching does not explain why the
Principal was intent on terminating Complainant before she became familiar with Complainant’s
teaching style.

We find that sufficient persuasive testimony was presented to establish that the Principal was
biased against Complainant based on his race and that the reasons she articulated for
Complainant’s termination were pretext intended to hide discriminatory motivation. The
Principal’s clear display of favoritism toward African-Americans was demonstrated in several
contexts. The favoritism was on display in Germany in her treatment of African-American
children as opposed to Caucasian children and when she stated that white people should not be
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allowed to adopt black children. The teacher in Germany testified that the Principal had conflicts
with nearly every Caucasian woman within weeks of her arrival. The favoritism was on display
in South Korea when the Principal invited only African-American coaches or enlisted members
to social events. Although the magnitude of the preferential treatment was not substantial when
the Principal offered cake to only the African-American coaches, it nevertheless was another
example of her favoritism on display. Further, a Caucasian teacher in South Korea resigned after
the first week of school apparently based on the manner in which she was treated by the
Principal. As the Ombudsman testified, the Principal stated after that resignation one down, two
to go. Complainant was one of those two employees that the Principal intended to target and she
did so in several ways. The District President of the Teacher’s Association testified that the
Principal treated the other staff equally and that it was clear she targeted Complainant.

The Principal pursued any actual or fabricated deficiency in Complainant’s teaching methods
that she could detect or create. In light of the testimony that Complainant was generally well-
regarded as a teacher and that the Principal was biased against Caucasians, this calls into
question the validity of the Principal’s criticisms of Complainant’s teaching ability. We are not
convinced that most of the Principal’s criticisms of Complainant’s teaching methods were valid.
We recognize that Complainant was not perfect and committed a few mistakes. However, as the
District President of the Teacher’s Association testified, there was nothing substantial enough to
justify termination. We find that the AJ’s findings regarding the race discrimination claim are
not supported by substantial evidence and that Complainant’s termination was attributable to the
Principal’s intent to discriminate against him on the basis of his race.

With regard to Complainant’s claim of sex discrimination, the evidence suggests that the
Principal frequently had negative interactions with both males and females. The teacher who
resigned after the first week of school at Chinhae was female and the Principal had difficulties
with a number of female teachers at the school in Germany. We find there is insufficient
evidence to support Complainant’s claim that his sex was a factor in his termination.

CONCLUSION

The Agency’s final action is hereby MODIFIED. The Agency’s determination that no reprisal or
no sex discrimination occurred is AFFIRMED. The Agency’s determination that no race
discrimination occurred is REVERSED. The matter is REMANDED to the Agency for further
processing in accordance with the ORDER below.

ORDER

The Agency shall take the following actions:

1. The Agency shall make Complainant an offer of placement into a probationary teacher
position, either at the Chinhae, South Korea school or a substantially equivalent position
with the Agency, at the grade and step where he would have been absent the
discrimination, no later than sixty (60) days from the date on which this decision is
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issued. See 29 C.F.R. § 1614.501(a)(3). The Agency offer shall include a notice that, if
Complainant does not respond or declines the job offer within 15 days of receipt, his right
to receive further back pay and other benefits based on the job offer shall terminate as of
that date. See 29 C.F.R. § 1614.501(b)(1), (c)(1). If the offer is accepted, the Agency
shall place Complainant into the position no later than 30 days from the date of
acceptance.

2. The Agency shall issue Complainant a check for backpay with interest for the period of
time that Complainant has not been performing the position he held at the time of the
discrimination. The Agency shall determine the appropriate amount of backpay (with
interest, if applicable) and other benefits due Complainant pursuant to 29 C.F.R. §
1614.501, no later than sixty (60) calendar days after the date this decision is issued.
Complainant shall cooperate in the Agency’s efforts to compute the amount of backpay
and benefits due, and shall provide all relevant information requested by the Agency. If
there is a dispute regarding the exact amount of backpay and/or benefits, the Agency
shall issue a check to Complainant for the undisputed amount within sixty (60) calendar
days of the date the Agency determines the amount it believes to be due. Complainant
may petition for enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled “Implementation of the Commission’s Decision.”

3. The Agency shall conduct a supplemental investigation on compensatory damages,
including providing Complainant an opportunity to submit evidence of pecuniary and
non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary
and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance:
Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of
1991 (July 14, 1992) (available at eeoc.gov). The Agency shall complete the
investigation and issue a final decision appealable to the EEOC determining the
appropriate amount of damages within 90 days of the date the decision is issued. The
Agency shall pay the amount determined within 30 days from the date of that
determination.

4. The Agency shall provide at least eight (8) hours of in-person or interactive training to
the responsible management official on Title VII with an emphasis on race
discrimination.

5. The Agency shall consider taking appropriate disciplinary action against the responsible
management official. The Commission does not consider training to be disciplinary
action. Within 30 days of the date this decision is issued, the Agency shall report its
decision to the Compliance Officer referenced herein. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
If the responsible management official has left the Agency’s employment, then the
Agency shall furnish documentation of her departure date.
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The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.

POSTING ORDER (G0914)

The Agency is ordered to post at its Chinhae, South Korea school copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall be
posted both in hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous
places, including all places where notices to employees are customarily posted. The Agency
shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any
other material. The original signed notice is to be submitted to the Compliance Officer as
directed in the paragraph entitled "Implementation of the Commission's Decision," within 10
calendar days of the expiration of the posting period. The report must be in digital format, and
must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations – within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. 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
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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.

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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
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continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

January 24, 2018
Date