0120160947
05-24-2018
Selina S.,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
Selina S.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120160947
Hearing Nos. 480-2012-00757X, 480-2014-00459X
Agency No. PE-FY13-036
DECISION
On February 1, 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 December 9, 2015, 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., 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 which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision which found that Complainant did not demonstrate that she was subjected to discrimination or harassment as alleged.
ISSUE PRESENTED
The issue presented in the case is whether the AJ erred in finding that Complainant was not subjected to discrimination or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Guidance Counselor, PT-15 at the Agency's Daegu High School facility in the Korea District, DoDEA Pacific. After it was discovered that Complainant had not calculated graduation credits correctly which left some students without enough credits to graduate, she was placed on administrative leave and her access to the high school was restricted. She was also placed on administrative leave after she was accused of encouraging a parent to verify that she had homeschooled her child so that the child could receive credit and graduate on time.
On December 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (60), and reprisal for prior protected EEO activity when she was subjected to harassment by the Agency from August 2011 through January 2012, Complainant offered the following incidents in support of her claim:
a. On January 17, 2012, Complainant found out that the Principal, DHS excluded her from preparations of the 2013 DHS Master Schedule.
b. On December 2, 2011, the Area Superintendent, DoDEA Pacific, accused Complainant of "jerri-rigging" and manipulating graduation waiver requests.
c. In November 2011, during a staff meeting, a coworker stated, "Now let's get the job done you 'MoFo's' (Complainant felt this word was derogatory since another employee was an employee of ethnic decent).
d. On November 28, 2011, the Principal directed Complainant to write to the Area Superintendent and explain to her why she did not meet the suspense deadline for submitting graduation waivers.
e. On November 30, 2011, Complainant found out that the Principal withheld information regarding a request for transcript reviews and the suspense date she set.
f. On August 29, 2011, the Principal refused to move Complainant from the office he assigned her to that contains a siren, school bell, and speakers, which when activated give Complainant headaches.
g. On August 29, 2011, the Principal assigned Complainant additional administrative duties increasing her current workload.
h. On August 29, 2011, the Principal reduced Complainant's Extra Duty Contract (EDC) compensation for the current year by making changes in School Year 2012 EDC compensations.
i. To present date, DoDEA- Pacific management has not acknowledged or resolved the union grievance that Complainant filed in June 2011.
j. On August 29, 2011, the Principal removed some of Complainant's counselor's functions impacting her job as a counselor.
k. Starting August 29, 2011, the Principal would not respond to Complainant's verbal and email requests to meet with her to prioritize work assignments.
l. On August 22, 2011, a coworker introduced another coworker to Complainant stating that the coworker used to be a woman.
m. On August 18, 2011, Complainant reported to the Principal that a female coworker, acted unprofessionally during her presentation on Advance Placement. When Complainant reported this incident, the Principal was complacent and informed her that "it only happened once."
Further, Complainant alleged that she was subjected to harassment based on her race, sex, age, and reprisal in EEO complaint PE-FY11-088 filed on May 31, 2011, when:
1. From August 2011 to present, Complainant was harassed (nonsexual) by the Agency. The following incidents were provided in support of the harassment claim:
n. On March 1, 2012, the Principal issued Complainant a Notice to Suspend Graduation Consultations and Approvals.
o. On or about March 6, 2012, the Principal suspended Complainant's rights to the ASPEN computer database.
2. On March 16, 2012, the principal notified Complainant that her Transfer Program application was denied, and she was not permitted to participate in the transfer round for School Year 2011-2012.
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. The claims in this matter were consolidated under EEOC No. 480-2012-00757X, and EEOC No 480-2014-00459X. Over the Complainant's objections, the AJ assigned to the case granted the Agency's June 19, 2015, motion for a decision without a hearing and issued a decision without a hearing on November 4, 2015.
The AJ found that Complainant failed to establish that she was subjected to reprisal because she did not show that management was aware of her prior EEO activity with respect to incidents b,f,g,h,i,j,k,l, and m.2 Notwithstanding, the AJ found that assuming arguendo that Complainant established a prima facie case of reprisal and discrimination, the Agency articulated legitimate, nondiscriminatory reasons for actions with regard to each incident. Namely, the Agency indicated that Complainant complained of incidents that were either not in her job duties or description, incidents that where at the discretion of the Principal, or incidents that involved coworkers and did not involve her. The Principal explained that Complainant was placed on administrative leave and removed of her substantive duties to allow her sufficient time to complete the procedures related to her separation from employment. Her access to Daegu High School was restricted because she had no duties that required her to be on campus and because she had been found to have engaged in unethical conduct regarding a student's records. Management explained that a white male employee had also been restricted from his campus after he received notice that he would be terminated.
Further, management explained that Complainant was suspended from graduation consultations and approvals because she had a high number of complaints from parents and a high number of transcript errors that resulted in seniors not having the credits needed for graduation. The Principal wanted Complainant to cease graduation work until he could examine the issues and determine the scope of the problem. The Principal also explained that the restrictions on Complainant's rights to the ASPEN computer database was because of the investigation into her allegedly falsifying a transcript for a senior in jeopardy of not graduating. Finally, Complainant was not allowed to participate in the job transfer program because she was not meeting critical elements of her job and would not receive a favorable evaluation. The AJ found that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that all of her incidents should be read together and that they show that she was subjected to a pattern of hostility. Complainant submits two affidavits from her coworkers. The affidavits indicate that Complainant was a good teacher who cared about her students. They also indicated that the Principal seemed to have wanted a group of people who just went along with anything he wanted. Finally, one co-worker indicated that the Principal seemed to have a problem with Black women, and indicated that other black women may have filed complaints.
In response, the Agency contends, among other things, that Complainant "suffered no adverse action by management and her allegations of harassment are manufactured silliness." The Agency maintains that Complainant cited numerous allegations that were not involved in this case but were from other cases that she has had; and moreover, she cites to evidence that had not been admitted to this case, i.e., depositions that should not be considered in this case.
Finally, the Agency maintains that there are no genuine issues as to any material fact or credibility, and that Complainant's appeal brief does nothing to change this fact.
ANALYSIS AND FINDINGS
Standard of Review
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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). Based on our review of the record, we find that there are no material facts at issue and that the AJ's determination to issue a decision without a hearing was appropriate.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination with regard to all of her bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not show that those reasons were pretext for discrimination.
Further, with respect to Complainant's allegation that she was subjected to a hostile work environment, even if we considered all of the incidents set forth in her complaint together, we find these incidents are work-related matters that do not involve discriminatory animus based on race, sex, age, and reprisal. Specifically, Complainant complains about assignments, work load, rude coworkers, and the failure of management to understand how she feels. We find that the incidents cited are not severe or pervasive enough to establish a hostile work environment.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order which found that Complainant did not establish that she was subjected to discrimination and harassment as alleged.
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
_5/24/18_________________
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.
2 The AJ dismissed incident i, for failure to state a claim as the matter concerned the disposition of a union grievance.
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