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

Equal Employment Opportunity Commission

Aug 5, 2021

Appeal No. 2020001031 (E.E.O.C. Aug. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nakesha T.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020001031 Hearing No. 570-2017-00121X Agency No. EU-FY16-014 DECISION On October 26, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the EEOC’s Administrative Judge’s (AJ) 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. BACKGROUND During the period at issue, Complainant worked as a Teacher, TP-1701-16, at the Agency’s Stuttgart High School (SHS) in the Bavaria District, in Germany. On December 7, 2015, Complainant filed a formal EEO complaint alleging that the Agency unlawfully retaliated against her for engaging in prior protected EEO activity when: 1. From August 26, 2015, and ongoing, the Principal (“P1”), Assistant Principal (“AP1”) and another Assistant Principal (“AP2”) subjected Complainant to 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 2020001031 harassment. Complainant provided the following incidents in support of her ongoing harassment claim: a. On August 26, 2015, P1 singled Complainant out in a faculty meeting by speaking to her in a tone that was angry, aggressive, and hostile, which embarrassed her in front of her peers. b. On August 26, 2015, during the Junior-Senior meeting, AP1 confronted Complainant with anger and hostility. c. Since August 26, 2015, P1 has not only ignored Complainant’s requests to address AP1’s behavior toward her, but P1 has blamed her for AP1’s inappropriate behavior. d. On September 1, 2015, during a pre-action investigation meeting with P1, he refused to provide Complainant with the Agency’s policy for teachers taking notes during meetings. e. On September 4, 2015, AP1 stood in the doorway of Complainant’s classroom and stared at her and her students before walking in and speaking to a single student, and then he sauntered out without apologizing for the interruption, introducing himself, or explaining his reason for being there and he provided no follow-up for his visit. AP1 and AP2 continued to come and stand in Complainant’s classroom doorway. f. On January 19, 2016, while the Physical Education/Health Teacher (“CW”) and P1 were walking behind Complainant, CW called her a “bitch” and P1 did nothing about this; g. On January 23 and 24, 2016, AP1 failed to respond to Complainant’s emails when she asked him how much time he would need to pass out tests to her students, and when she asked the purpose of a meeting, he scheduled with her. Instead, AP1 came to her classroom and with a patronizing and derogatory tone, he said, “[Complainant], when I email you, I expect you to reply!” h. On January 24, 2016, AP1 set up a meeting with Complainant during her planning period to tell her that she was not teaching to the syllabus. i. On January 24, 2016, while Complainant was teaching, AP1 walked up to the double glass doors that lead outside and to the stairwell, pretended to push them open, walked away, and turned back again while he proceeded to stare at her. 3 2020001031 j. On May 23, 2016, AP2 scheduled a noon meeting with Complainant to discuss her classroom observations while knowing that Complainant was scheduled for an after-school deposition in a colleague’s EEO/whistleblowing case against the Agency, which prevented her from using her planning period. k. On May 23, 2016, during AP2’s discussion of Complainant’s performance, AP2 used a condescending tone and talked to Complainant like a petulant child. This meeting was an attempt to document Complainant. l. On May 23, 2016, AP2 told Complainant to collaborate with [Dr. B] even though she had requested Ms.[M-B] to supervise her because [Dr. B] scares her. m. On May 23, 2016, Complainant asked AP2 about her history background to explore using her as a resource, but AP2 became defensive stating that she had taught history at all elementary levels and then she shouted, “But I can read a syllabus!” n. On May 26, 2016, after Complainant scanned and printed documents relative to her Educator Performance Appraisal System (EPAS) Intervention Program (IP) and sent them to AP2, Faculty Representative Spokespersons (FRS), and her representative, P1 entered Complainant’s classroom and said, “You’ve been working up a thirst sending all those emails” and plopped a bottle of Apfelschorle [a German soft drink] on her desk, which Complainant found threatening and unnerving. o. On an unspecified date, AP2 entered Complainant’s classroom, spoke to some students in the back of the room and then walked up front, rolled her eyes and shook her head. AP2 and AP1 entered Complainant’s classroom six times that day. 2. On September 24, 2015, P1 issued Complainant a Letter of Caution (LOC) for recording a staff meeting without permission and failure to follow instructions. He refused to explain the meaning of “failure to follow instructions” and he refused to state whether or not he had received her reasonable accommodation request regarding use of her IPAD to take notes during faculty meetings. 3. On April 29, 2016, AP2 presented a Letter of Instruction stating Complainant’s room was in disarray. 4. On May 16, 2016, AP2 issued Complainant a Notice of Unacceptable Performance and Offer of an Opportunity to Improve by Entering the Educator Performance Appraisal System (EPAS) Intervention Program (IP), which included fraudulent statements made without observation. 4 2020001031 5. On August 29, 2016, Complainant was forced to resign from her position, effective August 15, 2016. After an 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 assigned AJ granted the Agency’s September 20, 2018, motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on September 30, 2019. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision, concluding Complainant failed to prove that the Agency subjected her to discrimination as alleged, became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. On appeal, Complainant, through counsel, recounts her prior EEO and union activities, as far back as with her prior position at Patch High School. Complainant avers that P1, AP1, and AP2 collectively engaged in vicious retaliatory behavior, including using Complainant’s performance evaluation as a weapon. Complainant also indicates that testimony in an unsubmitted deposition corroborate her allegations against P1, AP1, and AP2. Complainant goes on to make various statements and arguments on appeal. Complainant also includes an appellate decision, finding discrimination, in a matter that she states she was involved. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). 5 2020001031 Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates a dispute of material fact necessitating a hearing. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). In other words, Complainant must show that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the AJ properly determined that Complainant did not meet her burden by demonstrating that the Agency’s rationale for various discrete actions was pretextual. The AJ found that Agency managers provided legitimate, non-discriminatory reasons for the disputed actions in their affidavits prepared during the investigation. The AJ properly determined that Complainant’s assertions regarding these allegations “amount to broad, unsupported attacks that are simply no supported by the record evidence.” As the AJ found, and the record supports, there is “insufficient probative evidence” to withstand summary judgment. Finally, on the claim regarding a forced resignation, the AJ again properly found that Complainant failed to present evidence sufficient to establish a genuine issue of material fact to warrant a hearing on this matter. The central question in a constructive discharge (forced resignation) case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). Upon review, we find that Complainant failed to show that her working conditions were so intolerable that she was forced to resign. We agree with the AJ’s conclusion, as described above, Complainant has not demonstrated that the alleged harassing conduct constituted discriminatory treatment and we find that Complainant has failed to establish that any of the alleged conduct, either singly or collectively, was sufficiently severe or pervasive to rise to the level of a hostile work environment. We therefore conclude that Complainant did not establish that her resignation constituted a constructive discharge. 6 2020001031 On appeal, Complainant continues to make assertions without providing evidence that the actions of Agency management were motivated by retaliation. Complainant avers that instances, that the Agency defends as regular business practices, policies, or misunderstandings, are somehow targeting her for her prior protected activity. The record does not support Complainant’s version of why each event occurred, or even corroborate the occurrence of incidents. Complainant bears the burden in identifying, with specificity, facts in dispute either within the record or by producing further supporting evidence that are material under applicable law. She fails to do so here. CONCLUSION The AJ’s decision by summary judgment finding no retaliation, which became the Agency final order in the absence of the Agency issuance of a final order, is AFFIRMED. 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. 7 2020001031 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). 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. 8 2020001031 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 August 5, 2021 Date