Alana W.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Jan 14, 2020

2019001245 (E.E.O.C. Jan. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alana W.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2019001245 Hearing Nos. 570201501151X, 570201600799X Agency Nos. EUFY15029, EUFY15065 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 19, 2018 Final Order concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. ,and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. During the relevant time frame, Complainant was employed by the Agency as a Guidance Counselor at Naples Elementary School from July 2009, until August 2016, when she began working as a Guidance Counselor at Naples Middle/High School. Both facilities were located in Naples, Italy within the Agency’s Europe Activity, Mediterranean District. The instant appeal concerns a single decision addressing two complaints. 2 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The Agency’s Motion for Summary Judgment included a third complaint, which was dismissed in a separate decision without a hearing, and is cited in the instant reprisal allegations. See Madelaine E. v. Dep’t of Defense, EEOC Appeal No. 0120180588 (May 30, 2019) (affirming 2019001245 2 Complaint 1: EEOC Hearing No. 570201501151X, Agency No. EUFY15029 On February 23, 2015, Complainant filed a Formal EEO Complaint alleging discrimination by the Agency on the bases of sex (female), age (55), and reprisal for prior protected EEO activity when: During the winter of 2014, Complainant learned that the Principal of Lakenheath Middle School, (female, 59, no prior EEO activity) did not select her for the Guidance Counselor position at Lakenheath Middle School. Complaint 2: EEOC Hearing No. 570201600799X, Agency No. EUFY15065 On May 29, 2015, Complainant filed a Formal EEO Complaint alleging harassment and discrimination by the Agency on the bases of sex, age, and reprisal for prior protected EEO activity (including activity related to Complaint 1) when: a. During 2013-2014, the Principal for Naples Middle/High School (“P1,” male, 67, prior EEO activity) stopped announcing Middle and High School extracurricular/ coaching positions at the elementary school in an effort to prevent Complainant from applying for these positions and he did not allow Complainant to apply for Coach of the girls' high school soccer team until no one else was interested at the Middle or High School, b. On January 24, 2014, P1 excluded Complainant from applying for Boys' Soccer Coach when he made a non-competitive selection, c. On March 17, 2014, the Assistant Superintendent, Mediterranean District (male, 53, no prior EEO activity) prepared an Executive Summary regarding Complainant's son being bullied by other students, which included erroneous information and disparaged Complainant, d. In June 2014, P1 changed the rubric used to determine candidates for Europe Athlete of the Year to prevent Complainant's daughter from being considered, e. From August 26 to September 3, 2014, P1, the Seventh Grade World History Teacher/Women’s Volleyball Coach at Naples Middle/High School (male, 32, EEO activity not specified), and the Physical Education Teacher at Naples Middle/High School (male, 73, EEO activity not specified) retaliated against Complainant when her son was cut from the Boys' Volleyball Team, and, the Agency’s final order adopting the AJ’s summary judgment finding that Complainant failed to prove discrimination as alleged) (EEOC Hearing No. 570201401204X, Agency No. EUFY1410). 2019001245 3 f. As of September 8, 2015, the Agency has failed to provide Complainant an Executive Summary in response to a letter she sent to Senator Chris Murphy on December 29, 2014, regarding a report of other children attacking and bullying her son. After investigating each complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and a notice of her right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested hearings. The Agency submitted a combined motion for a decision without a hearing for both complaints. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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). 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.3 Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 3 Complainant offers no evidence, such as witness testimony or comparator employees to support her statements regarding Complaint 1 (alleging that the Agency “played fast and loose” when applying hiring eligibility policy). Likewise, for Complaint 2, Complainant makes much of the AJ’s characterization of her allegations as a group of “normal” supervisor-subordinate and parent-school official interactions, yet fails to provide evidence that the incidents had the effect of “unreasonably interfering with her work performance or creating a hostile or offensive working environment,” a threshold requirement for a harassment complaint, even when considering the broader standard of review afforded to reprisal claims. 2019001245 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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 (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. 2019001245 5 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 14, 2020 Date