Iris D., Complainant,v.James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

May 23, 2019

2019001738 (E.E.O.C. May. 23, 2019)

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

Iris D.,
Complainant,

v.

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

Request No. 2019001738

Appeal No. 0720150013

Hearing No. 430-2012-00352X. 430-2013-00290X

Agency No. DD-FY-11-106, DD-FY12-137, DD-FY13-109

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0720150013 (Oct. 24, 2018). EEOC
regulations provide that the Commission may, in its discretion, grant either parties’ request to
reconsider EEOC’s previous decision, if the party requesting consideration demonstrates: (1) the
appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the
appellate decision would have a substantial impact on the policies, practices, or operations of the
agency. See 29 C.F.R. § 1614.405(c).

During the period at issue, Complainant worked as a principal at the Agency’s elementary school
in Laurel Bay, South Carolina. Between March 2012 and August 2013, Complainant filed three
complaints that alleged she had been discriminated against based on sex (female), race (African
American), color (brown skin hue), age (49 years), and in reprisal for protected EEO activity when,
among other things, she was subjected to ongoing harassment, including a number of issues
surrounding her 2012 and 2013 performance appraisals and a February 2013 letter of reprimand.
After receiving the Agency’s investigative report on her EEO allegations, Complainant requested
a hearing.

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In March 2014, an EEOC AJ held a hearing where Complainant and seven other witnesses
testified. On June 10, 2014, the AJ issued her decision finding Complainant had failed to prove
the discriminatory incidents as alleged. However, the AJ also found Complainant had substantiated
one claim that the Agency unlawfully retaliated against Complainant. Specifically, the AJ
concluded the Agency transferred Complainant to a different school in Butner, North Carolina, in
reprisal for Complainant’s opposition to asserted discriminatory treatment of a female African
American kindergarten teacher.

In October 2014, the Agency issued a final order declining to fully implement the AJ’s decision
and appealed the retaliation finding to this Commission. On October 24, 2018, the decision in
EEOC Appeal No. 0720150013 affirmed the AJ’s findings of no discrimination regarding the bulk
of Complainant’s originally accepted claims.

However, the decision determined that while the AJ advised the parties that the Butner transfer
would only be considered as background evidence, the AJ ultimately made a discrimination
finding on that matter. The prior decision also noted that the Agency claimed that the AJ
improperly determined that the coerced transfer began in January 2012, when it was actually
January 2011. Because of the AJ’s actions and a potentially determinative factual dispute, the prior
decision remanded the Butner transfer issue for further processing because the parties had been
deprived “of the opportunity to fully develop the factual record on this matter.”

On November 28, 2018, the Agency filed the instant request for reconsideration of EEOC Appeal
No. 0720150013 on grounds that testimony from the AJ’s hearings had developed sufficient record
evidence concerning the Agency’s alleged retaliatory transfer of Complainant.1 On
reconsideration, the Agency contends the AJ’s finding of retaliation was improper because the AJ
had already considered and rejected retaliation as a basis in analyzing Complainant’s other
allegations. The Agency argues that the Commission should issue a decision that affirms the
Agency’s final order in a manner that ends the processing this case.

1 At the onset of its reconsideration request, the Agency stated that Complainant had first requested
reconsideration in a document dated November 27, 2018, entitled “Complainant’s Statement
Requesting Reinstatement of the Decision and Damages Order for Conjoined Agency Case No.
DD FY13-109 per EEOC Ruling Contained in Hearing Transcript.” However, we construe
Complainant’s submission as expressing support for the AJ’s decision to sua sponte raise the
matter of Complainant’s transfer to Butner, for the AJ’s finding retaliation and for the AJ ordering
relief. A fair reading of both Complainant’s November 27, 2018 statement and Complainant’s
December 10, 2018 response opposing the present Agency request revealed Complainant declined
contesting nondiscrimination determinations on her other EEO claims.

To the extent that Complainant can be construed as requesting reconsideration of any aspect of the
prior decision, we find that no arguments were raised by Complainant meriting a grant of any such
request.

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After a thorough examination of the record, we determine that our prior appellate decision
contained no erroneous factual or legal interpretation. Furthermore, we were not persuaded the
appellate decision impacted the Agency’s policies, practices, or operations. Based on the
particular situation presented, the record requires further development before a considered decision
can be made on the retaliation claim related to the Butner transfer.

CONCLUSION

After reviewing the entire record and previous decision, EEOC finds the instant request failed to
meet 29 C.F.R. § 1614.405(c) criteria. The Commission denies the Agency’s reconsideration
request. EEOC Appeal No. 0720150013 remains in effect. Here, we determine that the prior
decision properly affirmed the AJ’s findings of no discrimination on various other claims raised
by Complainant. We also determine that the prior decision properly remanded the Butner transfer
claim to the Agency for further processing in accordance with the ORDER below.

ORDER

Regarding the Agency’s alleged retaliatory transfer of Complainant to Butner, the Agency is
directed to submit a copy of the relevant complaint file, as well as the decision in EEOC Appeal
No. 0720150013 and the instant denial of its request for reconsideration, to the Hearings Unit of
the EEOC’s Charlotte District Office within fifteen (15) calendar days of the date this decision is
issued. The Agency shall provide written notification to the Compliance Officer at the address set
forth below that the complaint has been transmitted to the Hearings Unit. Thereafter, the
Administrative Judge shall hold a hearing and issue a decision on the Agency’s alleged retaliatory
transfer of Complainant to Butner in accordance with 29 C.F.R. § 1614.109 and the Agency shall
issue a final action in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)

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 Complainant and
her representative.

If the Agency does not comply with the Commission’s order, Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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).
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Alternatively, 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 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.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This EEOC decision is final, and there is no further right of administrative appeal from the
Commission’s decision. 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.

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

May 23, 2019
Date