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

Equal Employment Opportunity Commission

Feb 7, 2023

Appeal No. 2021005298 (E.E.O.C. Feb. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linn A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2021005298 Hearing No. 480-2019-00868X Agency No. PE-F419-022 DECISION On September 30, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 22, 2021, final order 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., 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as a Teacher at the Agency’s Unit 2037, Pacific West District Schools in Osan Air Base, South Korea. On January 4, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (physical), age (60), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, 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. 2021005298 2 the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when: 1. On May 1, 2017, Principal issued her a letter of realignment involuntarily reassigning Complainant from her position as a 6th Grade Teacher at Osan Middle and High School to the position of Special Education (SPED) Teacher for the 2017/2018 school year; 2. From May 1, 2017, to November 29, 2018, Principal subjected her to harassment. The following incidents of harassment were provided in support of your claim: a. May 1, 2017, Principal issued her a letter of realignment involuntarily reassigning her from her position as a 6th Grade Teacher at Osan M/HS to the position of Special Education (SPED) Teacher for the 2017/2018 school year; b. From May 2017 to June 2017, Principal denied Complainant’s request to remain in her position as a 6th grade teacher; c. From May 2017 to June 2017, Principal did not provide Complainant with additional training she requested for her new SPED position; d. On June 1, 2019, Principal issued Complainant a less than favorable performance evaluation that falsely alleged other teachers did not want to work with her because she was hostile and that she stated she hated her job; e. From August 2017 to November 29, 2018, Principal sent Complainant several disparaging email communications and verbally reprimanded her; f. [withdrawn]; g. [withdrawn]; h. [withdrawn]; i. On November 29, 2018, Principal directed Complainant to attend a pre-action investigation for issues related to learning strategies grades and possible insubordination; j. From November 2018 to January 2019, Principal directed Complainant to spend every A-day planning period with the 6th, 7th, and 8th grade math co- teachers, denying her the opportunity to utilize study hall on A-days; and k. From November 2018 to January 2019, Principal did not allow Complainant the opportunity to complete the recertification requirements outlined in the Notice of Deficiency dated October 1, 2018; 3. On June 1, 2018, Principal issued Complainant a less than favorable performance evaluation that falsely alleged other teachers did not want to work with her our because she was hostile and that she stated she hated her job; 4. In September 2018, Principal did not select Complainant for the extra duty contract (EDC) assignment of Opportunity Hall Tutor; 5. In September 2018, Principal did not select Complainant for the extra duty contract assignment of CSC, Co-Chair; 6. In September 2018, Principal did not select Complainant for the extra duty contract assignment of Sponsor, Geography Bee; 7. In September 2018, Principal did not select Complainant for the extra duty contract assignment of Coordinator, Multi-Ethnic Activities; 2021005298 3 8. In September 2018, Principal did not select Complainant for the extra duty contract assignment of At-Risk Mentor; 9. In September 2018, Principal did not select Complainant for the extra duty contract assignment of Gifted Mentor; and 10. On January 24, 2019, Principal issued Complainant a Letter of Reprimand for the charge of failure to follow instructions. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 30, 2020, motion for a decision without a hearing and issued a decision without a hearing on September 21, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to 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). 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. (Aug. 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). In order 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 factfinder could not find in Complainant’s favor. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, they must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2021005298 4 The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant has established a prima facie case of discrimination, we now turn to the Agency to provide a legitimate, nondiscriminatory reason for its actions. We find that they have done so here. Principal stated that he issued a letter of realignment to Complainant and five other teachers. Report of Investigation (ROI) at 1549-50. Principal said that Complainant, and the other teachers, were realigned because Osan Middle School and Osan High School were consolidated, resulting in the loss of several teaching positions. ROI at 1536. He said that, in light of these changes, teacher certifications were checked and, because Complainant was certified in all four subject areas and special education, it was determined that her experience and education “would allow her to work with students who needed a qualified individual who could assist these students in being successful.” ROI at 1536. Complainant has presented no evidence that she was ever denied training for her assignment as a special education teacher. Principal proffered that Complainant, by virtue of her education and certification, was trained to work with Special Education students. ROI at 1536. Moreover, Principal said that Complainant requested and received assistance from Instructional Support Specialists and they provided additional support to Complainant. ROI at 1536. Indeed, Complainant, herself, stated “Special Education Training was never denied, I just never received adequate training…” ROI at 1501. Likewise, Complainant has not established that she was given a “less than favorable” performance evaluation. Principal asserted that the only available ratings for a teacher under his supervision were “Meets Standard” and “Does Not Meet Standard.” ROI at 1537. He said that Complainant received a “Meets Standard” rating. ROI at 1537. Complainant confirmed that she received an “Acceptable” rating, which was what “any employee could get.” ROI at 1506. Complainant said, however, that “the additional comments are the basis for favorable or less than favorable influence on future employment endeavors.” ROI at 1506. Complainant asserted that additional comments included assertions that she said she hated her job and that other teachers did not want to work with her because she was hostile, which she alleged to be false. ROI at 1506. Principal rebutted Complainant’s accounts, stating that Complainant told him on multiple occasions that she did not like her job, and this issue was brought to his attention to a representative of bargaining unit employees who were “concerned of retribution by [Complainant].” ROI at 1537. Principal further stated that these comments were not in her performance appraisal; he said that he removed comments from her performance evaluation regarding the need to be productive and not antagonistic in her communication with peers and office staff. ROI at 1537. Complainant could not provide corroborating evidence that any such comments were on her performance evaluation. ROI at 1506. 2021005298 5 Complainant asserted that the “disparaging emails” were “emails reprimanding me for a lack of grades after my attempts to learn how to adequately grade students…” ROI at 1508. Complainant was sent a Letter of Reprimand citing three separate instances where Complainant had not entered the grades for her students, and she entered her students’ grades over a month late. ROI at 818. The investigation cited in claim 2(i) was issued for the tardiness of grade entry. ROI at 810-17. Complainant does not deny that she was tardy in entering the grades. As to the issue of not being allowed to utilize study halls during “A” days, Principal averred that there was no study hall on “A” days. ROI at 1541. He explained that Complainant was a co- teacher with math teachers. ROI at 1541. He said that he made Complainant a co-teacher because she expressed frustration that she wanted to teach-previously, special education teachers sat in the back of the class and took notes. ROI at 1541. Principal became concerned, however, because there was a lack of communication among the co-teachers, with confusion about what each teacher was supposed to do. Principal stated that, to alleviate the problem of miscommunication, he set aside 85 minutes to sit down together and plan for classroom instruction. ROI at 1540. Principal contradicted Complainant’s claim that he ever denied Complainant the opportunity to complete her certification. ROI at 1541. Rather, he stated that the coursework was expected to be completed after school hours, on weekends, or during the summer months. ROI at 1542. Complainant, herself, does not assert that she was denied the opportunity for her chosen course; rather, she was denied the ability to perform this certification coursework during the school hours, as she requested. ROI at 1512. Principal explained, “Teachers are expected utilize their work time to teach kids and plan for instruction during their regular scheduled work days.” ROI at 1542. Finally, as to the claims regarding the extra duty assignments, Principal provided legitimate, nondiscriminatory reasons for each of the selections. With regard to Opportunity Hall Tutor Support, the incumbent was re-selected as they had done an exceptional job for two years. ROI at 1542. The incumbent was also re-selected for the At-Risk Mentor program. ROI at 1544. For the Gifted Mentor program, an individual was selected who had served as a gifted mentor at another school and “was recognized as a great gifted mentor.” ROI at 1544. Selectee “was familiar with the requirements and child find requirements and the reports that need to be filed every year.” ROI at 1544. There was no posted co-chair position for the Case Study Committee and the selectee for the Chair position demonstrated the ability to navigate the necessary Agency programs quicker than Complainant, who had expressed discomfort in special education paperwork. ROI at 1543. Complainant was not selected for the Geography Bee position because Complainant expressed that she did not want to be considered for additional extra duty assignments due to time required to complete her certification requirements. ROI at 1543. Complainant turned down the assignment of Coordinator for Multi-Ethnic Activities. ROI at 478, 1544. Evidence in the file demonstrates that Complainant, herself, declined consideration of multiple extra duty assignments, with Principal requesting she reconsider. ROI at 478-80. 2021005298 6 Having found that the Agency has offered legitimate, nondiscriminatory actions for each of its actions, we turn to Complainant to determine whether she can provide evidence that the Agency’s actions were pretext for discrimination. A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). Agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). The question is not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). Rather, the focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. At all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. We find that she has not. Rather, Complainant relies upon beliefs, supposition, and speculation for her claim. When directly asked, Complainant stated, “I cannot explain how” a given action is related to her protected classes. ROI at 1507, 1514, 1516, 1518. To the extent Complainant argues that she should have been afforded different considerations as to the issues surrounding her continuing education because the Agency, its Virginia office, made an error in calculating her renewal date, we cannot agree. ROI at 1513. The record is clear that the Agency made an error in computing the renewal date of her certification; the record is also clear that Principal made an effort to assist Complainant in this regard. ROI at 1121-24. What is not proven, however, is that this error was due to discriminatory animus, as opposed to mistake or poor management on the part of the Agency. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus); Bodalia v. Dept. of Vet. Affs., EEOC Appeal No. 01955275 (Aug. 27, 1997) (affirming that poor management by an Agency is not, in and of itself, evidence of discrimination). Complainant also argues that the realignment was not the issue. ROI at 1501. Rather, her reassignment was because “[Reduction in Force] procedures were not followed according to regulations, procedures and protocol.” ROI at 1501. Without evidence that the regulations and procedures were not followed due to discriminatory reasons, whether or not the regulations and procedures for reduction in force were followed is outside the purview of this Commission, we have no jurisdiction over this issue, and it will not be further addressed. In this case, there is no corroborated evidence of unlawful motivation for the Agency’s actions. As a final matter, to the extent that Complainant is alleging that she was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). 2021005298 7 Complainant's harassment claim is precluded based on our finding that she failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). 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 or harassed by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 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). 2021005298 8 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 February 7, 2023 Date