0120111356
04-18-2012
David F. Osborne, Jr., Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
David F. Osborne, Jr.,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120111356
Hearing No. 540-2008-00112X
Agency No. BIA-06-023
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 9, 2011 final order concerning his 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. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a substitute teacher at the Tohono O'Odham High School in Sells, Arizona. Complainant was hired in Fall 2001 and taught Language Arts for approximately two months because the school had not hired a teacher for that position. Substitute teachers worked on a daily basis as needed; however, Complainant worked full time. P1 asked Complainant to create and run an alternative education program for students who had been expelled. Complainant began the program in March 2002, and it eventually became known as in-school suspension (ISS). Complainant taught the students several subject areas and awarded credit. In addition to expelled students, Complainant taught suspended students and obtained assignments for those students while they were assigned to ISS.
In September 2001, Complainant signed a blank Employee Performance Plan and Results report. On May 24, 2002, Complainant was given his performance evaluation and told to sign it before it was completed to obtain a contract for the following school year. Complainant signed it and received an "Achieved" summary rating. Complainant believed that the evaluation should have included all of his work, including the work on the ISS program. Complainant received a contract for the next school year, but claims he did not receive a copy of the performance evaluation.
In August 2002, Complainant taught a journalism class for four to five weeks and then resumed teaching the ISS program. The ISS program included some special education students. In late 2002, some of the teachers began expressing dissatisfaction with Complainant's work as a substitute teacher. Specifically, they had concerns that Complainant was not following lessons plans and students' work had not been completed. Additionally, teachers expressed concerns about the ISS program during a March 2003 staff meeting. The meeting was heated, and some teachers yelled at Complainant. One teacher was particularly angry with Complainant and was required to apologize later.
During the 2002-2003 school year, Complainant expressed interest in participating in the "Grow Your Own" Professional Development Program. The "Grow Your Own" program was an initiative designed to provide teachers and aides with training to teach special education. Complainant claims that his requests to enroll were denied. Additionally, Complainant asked to attend a "Newspapers in Education" training session in March 2002. P1 initially approved Complainant's attendance but subsequently selected a certified teacher who would be using the program in the classroom.
In March 2003, P1 sent a group of teachers to visit a reading program in Tuba City, Arizona to gather information about programs that the school might incorporate. P1 decided to only send regular Language Arts and Social Studies teachers who may use the program in their classes. In addition, in March 2003, a training class called "A Community of Caring," was scheduled to educate staff about being more sensitive to reservation life. All staff was allowed to attend but, on the day of the event, P1 required Complainant to stay at the school to supervise a special education student who did not end up attending on that day.
In February 2003, P1 and a school psychologist placed a student in the ISS program at the request of the student's father. The psychologist, P1, and the student's father revised the student's individual education plan to show that she had been moved to ISS. In addition, Complainant developed coursework for the student. On March 11, 2003, Complainant sent a fax to the Special Education Coordinator (SEC) stating that the student had been transferred to ISS full-time. The Acting Education Line Officer (ELO) discovered the fax and learned for the first time about the school's ISS program and that Complainant was acting as a full-time alternative education instructor. On March 17, 2003, ELO met with P1, Complainant and others to discuss the situation. ELO was concerned that moving the student to ISS violated special education laws as Complainant did not have the special education qualifications to provide these services. ELO questioned whether a substitute teacher was the appropriate person to run the ISS program and was very concerned that P1 had created a new program without obtaining the school board's approval. ELO became angry and told Complainant that he should have not have been assigned responsibility for a special education student and that he did not have the qualifications necessary for teachers working with special education students.
After Complainant left the meeting, ELO continued meeting with P1. ELO told P1 that ISS was not an appropriate environment for the special education student and that P1 should only use Complainant in his substitute teacher role. P1 informed ELO about complaints he had received from other teachers regarding Complainant's performance as a substitute teacher and asked for guidance. ELO explained to P1 several options including terminating Complainant, but did not specifically order P1 to terminate Complainant. After the meeting, P1 informed Complainant that he was ending the ISS program. Around March 23 or 24, 2003, P1 told Complainant that, according to ELO, creating the ISS program and assigning Complainant to administer it were mistakes. P1 sent Complainant home and informed him that he would be on call. Subsequently, Complainant was terminated effective April 4, 2003.
On March 14, 20061, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of national origin (Native American and Hispanic) and in reprisal for prior protected EEO activity when:
1. He was denied training in Fall 2002 and continuing;
2. He was not provided with performance evaluations during the course of his employment;
3. From October 2002 through April 2003, he was harassed and subjected to racial comments and other comments by his supervisors;
4. On or about April 3, 2003, Complainant was terminated from his position as a substitute teacher.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on July 28 and 29, 2010, and issued a decision on November 22, 2010.
Initially, the AJ assumed arguendo that Complainant had established a prima facie case of discrimination and reprisal and determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding training opportunities, the AJ determined that Complainant failed to show that he was actually denied admission into the "Grow Your Own" program. Specifically, the AJ determined that Complainant offered no evidence that he actually applied or formally asked to attend the program or that he received any response from the Agency denying his admission into the program. The AJ noted that by the date of the March informational "Grow Your Own" meeting, P1 had decided to terminate Complainant; therefore, he no longer could be admitted into the program. The AJ found that Complainant had presented no evidence that he was denied admission into the "Grow Your Own" program based on his protected classes.
As to the 2002 "Newspapers in Education" and the 2003 reading program trainings, the AJ found that P1 credibly testified that he selected regular classroom teachers to attend those training sessions. The AJ found that there was no evidence of discriminatory or retaliatory motive in the Agency's decisions to deny Complainant's requests to attend these training classes. Additionally, the AJ found that Complainant failed to show that his exclusion from the "Community of Caring" event was an adverse action that had any effect on the terms and conditions of his employment.
Regarding Complainant's performance evaluations, Complainant was required to sign a performance evaluation in May 2002 that he believed was blank in order to get a contract for the next school year. Complainant received an "Achieved" overall rating, but did not receive a copy of the evaluation. The AJ determined that Complainant had not offered evidence sufficient to establish a prima facie case that this conduct occurred due to his protected classes. Complainant offered no evidence that other employees obtained their evaluations, or that other employees were not required to sign an evaluation before it was complete, in order to get a contract.
As to his termination, the AJ found the testimony of ELO highly credible. ELO testified that it appeared that the special education student's placement in the ISS program run by Complainant was likely a violation of the Individuals with Disabilities Education Act and other regulations. ELO criticized P1's decision to create the ISS program and informed P1 that the program could not continue. After Complainant left the meeting, P1 discussed options with ELO and P1 ultimately decided to terminate Complainant. The AJ determined that P1 chose to terminate Complainant based on ELO's criticism of the creation of the ISS program and her order to discontinue it. The AJ concluded that P1 could have retained Complainant as an on-call substitute teacher until the end of the school year, but chose not do to so and there was no evidence that any rules barred this decision.
The AJ determined that Complainant had presented no evidence showing that the Agency's reasons for its actions were pretextual. As a result, the AJ concluded that Complainant had not been discriminated against as alleged.
Finally, as to Complainant's hostile work environment claim, in October 2002, Complainant claimed that P1 made an offensive remark about Native Americans in the Managers Dam community. However, the AJ found that it was an isolated remark and was neither severe nor pervasive enough to establish a hostile work environment. Additionally, Complainant claimed that P1 made remarks about Native Americans being drug-addicted, drunk, or neglectful. However, the AJ found P1 credible in stating that he only made statements regarding specific individuals in the course of assessing students who were facing problems and might need assistance. Thus, the AJ determined that these remarks were not harassment of Complainant as a Native American.
Regarding ELO's comments, the AJ found ELO credible in stating that she was only concerned about the improper placement of a student and P1's inappropriate creation of a program without going through the proper channels. ELO was angry and made harsh statements to both Complainant and P1; however, these remarks pertained to legitimate concerns and not Complainant's protected classes. As a result, the AJ found that Complainant had not been subjected to a hostile work environment as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination, reprisal, or a hostile work environment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the Agency discriminated against him and withheld data and testimony to cover up the unequal terms and conditions of his employment. Complainant argues that the AJ failed to see the totality of the harassment and intimidating actions against him. Further, Complainant contends that the AJ ignored contradictory testimony regarding why he was terminated. Accordingly, Complainant requests that the Commission reverse the final order.
STANDARD OF REVIEW
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. Nat'l Labor Relations Bd., 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. Swim, 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 me testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment
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 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr, Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248. 256 (1981).
Upon review of the record, the Commission finds that the AJ's finding of no discrimination is supported by substantial evidence. The Commission concurs with the AJ's finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to the 2003 education conference and the "Newspapers in Education" training program, P1 elected to send regular, certified Language Arts and Social Studies teachers to evaluate the various programs because they would be the individuals implementing the programs. Hr'g Tr., Vol 2., at 428, 434. Complainant, as a substitute teacher, would not be involved in the day-to-day curriculum that an English or Social Studies teacher would. Id. at 435. Regarding the March 2003 "Community of Caring" program, P1 affirmed that unless Complainant was subbing for someone or supervising students, he would not have been involved in this staff development program. ROI, at 131. Finally, as to the "Grow Your Own" program, the Special Education Coordinator testified that while Complainant expressed an interest in the program, he never submitted an application to be enrolled in it. Hr'g Tr., Vol. 1, at 220-22; 233.
Regarding Complainant's performance evaluation, the record reveals that Complainant was issued and signed his performance evaluation in May 2002. ROI, at 286. Complainant received an "Achieved" summary rating and his contract was renewed for the next school year. Hr'g Tr., Vol. 2, at 445-46. Complainant believed that more of his duties should have been included in the performance evaluation; however, P1 testified that the school used a standardized form and could not include every duty an employee performed. Id. at 477.
Finally, as to Complainant's termination, P1 noted, that he began receiving complaints from the regular teachers about Complainant's performance around October or November 2002. Hr'g Tr., Vol. 2, at 446-47. Specifically, teachers complained that Complainant had not followed lesson plans that they left for him and students had not completed their work. Id. at 447-52. Later, some teachers requested that Complainant not sub for them anymore. Id. at 451. P1 testified that he decided to terminate Complainant's employment after discussing the ISS program and Complainant's performance with ELO. P1 testified that he asked ELO for guidance and she provided him several options regarding Complainant. Hr'g Tr., Vol. 2, at 507. P1 testified that he ultimately decided to terminate Complainant because teachers were not happy with him as substitute and were not happy with his work in the ISS program. Hr'g Tr., Vol. 2, at 466. P1 testified that he could have simply not called Complainant in to sub anymore, but P1 did not think that would be fair to Complainant since he had already decided to not use Complainant anymore. Id. at 467.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory event, Complainant now bears the burden of establishing that the Agency's stated reasons are a pretext for discrimination. Shapiro v. Soc.Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
The Commission finds that the AJ's determination that Complainant failed to establish pretext is supported by substantial evidence in the record. The record and facts gleaned at the hearing fail to prove any evidence purporting to show the Agency's actions were pretext for discriminatory or retaliatory animus. Accordingly, the Commission finds that Complainant was not discriminated against as alleged
Hostile Work Environment
Finally, as to Complainant's hostile work environment claim, the Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected classes; (3) the harassment complained of was based on his statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that he was subjected to racial comments by his supervisors. Specifically, Complainant claimed that P1 made inappropriate remarks at staff meetings about drunk or drug-addicted Native Americans, neglectful Native American parents, and a lack of role models. The record reveals that P1's comments were made regarding specific individuals while assessing students who were facing problems and might need assistance. The comments were not directed at Complainant nor were they made with discriminatory or retaliatory animus. Additionally, Complainant claimed that P1 made an inappropriate remark about smugglers from Managers Dam, which P1 denied ever saying. Further, as to ELO's comments during the March 2003 meeting, the Commission finds that substantial evidence in the record supports the AJ's finding that ELO was expressing her concerns regarding Complainant teaching special education students, and these concerns were not based on Complainant's protected classes. Thus, after a careful review of the record, the Commission discerns no basis to disturb the AJ's conclusion that Complainant failed to establish that he was subjected to a hostile work environment.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________ April 18, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Complainant claimed that he initially contacted an EEO counselor in April 2003 and the EEO Counselor's Report indicates that the Regional EEO Manager was advised of the complaint on May 14, 2003. There is no evidence that Complainant actually received EEO counseling at that time and the record indicates that the Regional EEO Manager in question is no longer with the Agency. Complainant claimed that the matter was subsequently assigned to a Regional EEO Counselor in May or June 2004. Complainant stated that the Regional EEO Counselor told him that the previous EEO Manager had "mishandled" the matter and that his original complaint was still active. Complainant received EEO counseling beginning in May 2005 and extended to July 17, 2005. The Agency did not raise any objections regarding timeliness before the Administrative Judge or on appeal; therefore, the Commission shall deem these claims as timely filed.
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0120111356
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013