0120170671
09-26-2018
Jadwiga B.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jadwiga B.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120170671
Hearing No. 570-2015-01098X
Agency No. EU-FY15-001
DECISION
On December 6, 2016, 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 November 28, 2016, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established that she was discriminated against based on National Origin (American) and reprisal (prior EEO activity) when she was subjected to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a 0220 Teacher (Social Studies), TP-CE-14 at the Agency's Aviano High School (HS) facility in the Europe South District, DoDEA-Europe. On December 23, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (American) and reprisal.
Complainant alleged that a former Principal of the school at which she was teaching disclosed information about her prior EEO complaint to a newspaper reporter. Complainant alleged that as a result of that disclosure she was subjected to a hostile work environment that involved the current Principal (P1), and his Assistant Principal (P2) failing to defend her from negative comments and sabotage from her co-workers, failing to cure the hostility and lack of cooperation from the Italian teacher, removing half of her students from her class and sending them to another teacher's class, and causing the Italian Union to intervene in the issue of local nationals teaching in the Department of Defense Dependents Schools (DoDDS).
Complainant stated that on September 21, 2014, she saw a newspaper article in a newspaper that stated "(t)he reassignment of Aviano's high school Italian language teacher follows the filing in May of an Equal Employment Opportunity formal complaint by another teacher at the school. The teacher is presumed to be a U.S. citizen though DoDEA officials decline to comment on the complaint as a matter of policy."
Complainant stated that she had withdrawn her prior EEO complaint on September 3, 2014, after she was reinstated as an Italian teacher at the HS. She identified the former Principal as the responsible official in her prior EEO complaint. She stated that he was the only person who knew about her complaint and the exact time frames apart from the Agency's EEO office. She also stated that he "favored the host-nation Italian teacher and was upset at being named in Complainant's prior EEO complaint.
The former Principal stated that he became aware of the prior EEO Complaint when he was contacted by the EEO office. He denies disclosing any information to a reporter from the newspaper or to P1 or P2. The reporter declined to answer questions related to the matter.
Complainant chaired the Foreign Language Department at the HS. She maintained that the C1, the Spanish teacher, was unresponsive to emails and did not attend meetings related to Foreign Language Department matters. Complainant stated that on September 30, 2014, C1 "refused to cooperate with her and berated and ridiculed her in front of the entire staff." Complainant stated that she was offended and sent an email on October 1, 2014 to P1. She stated that P1 never responded.
C1 denied that the incident occurred, and stated that she had "never in any private or professional setting berated or ridiculed anyone," and stated that she had no knowledge of Complainant's prior EEO activity. P1 stated that he had no recollection of Complainant reporting negative comments or "sabotage" by her co-workers. He stated that he spoke to C1 and reported that she did not berate Complainant, but simply did not answer her. The record includes a statement that Complainant told P1 that she had been embarrassed. P1 also stated that he was unaware of Complainant's prior EEO activity.
Complainant further stated that she was notified about a student with special needs and requested documentation from the Counselor. She stated that the Counselor did not respond, thus failing to provide her with professional support. The Counselor denied having responsibility for special education documentation and asserted she "was mystified and offended by this claim." The Counselor stated that the information was available to the teachers through the ASPEN student database or in the records room. The Counselor also stated that she was unaware of Complainant's prior EEO activity. P1 stated that it was not the Counselor's job to provide special education information on students, that the special education teachers were responsible, and that Complainant was aware of that process.
Complainant stated that the host-nation Italian teacher failed to cooperate with her and had refused to speak with her since the beginning of the year. Complainant asserted that she asked P1 to intervene with regard to negative comments from staff and that he did not do so. P1 stated that he inquired into the matter and that the host-nation Italian teacher was "shaken up" by the situation, and was uncertain if the relationship could be repaired. P2 looked into the matter and concluded that Complainant had erroneously assumed that the host-nation Italian teacher had locked cabinets in the classroom with teaching materials inside. P2 stated that only personal items had been locked up, and he checked to see if Complainant had everything that she needed.
Complainant stated that no warning or explanation was given when students were removed from her class. P1 informed Complainant that because the number of students exceeded thirty students, he requested and received approval to split the class. P1 stated that the class population was too large for a teacher to be effective. He further stated that students are moved for many reasons, but not for prior EEO activity.
Complainant stated that she was blamed for the Italian Union intervening in the issue of local nationals teaching in the DoDDS. P1 told Complainant that he never blamed her for the issue. The Italian Union was involved because it was improperly notified of the host-nation Italian teacher's reassignment. According to P1, the actions by the Italian Union were based on information from the host-nation Italian teacher, and the matter had nothing to do with Complainant.
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. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant filed a brief. Among other things, she asserts that there is a present and ongoing effort to discriminate against her predominately based on the disclosure of her filing of an EEO complaint that was leaked to the press. She also asserts that she is mistreated and marginalized.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Harassment
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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 to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. The evidence presented by Complainant simply does not establish that the conduct for which she complains took place because of her national origin or previous EEO activity. In this regard, we note the lack of any persuasive evidence that P1, P2, C1 or the counselor where even aware of Complainant's prior EEO activity, and the denial of the former Principal that he disclosed any information to the reporter about Complainant. Moreover, we find that the conduct at issue was neither severe or pervasive but was more akin to the normal workplace interactions and tensions that are found in a work environment. Consequently, Complainant did not demonstrate that the purported harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or an offensive work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final 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. 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
____9/26/18______________
Date
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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