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

Equal Employment Opportunity Commission

Jul 23, 2019

0120180667 (E.E.O.C. Jul. 23, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shaniqua W.,1
Complainant,

v.

Dr. Mark T. Esper,
Acting Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120180667

Hearing No. 570-2014-01069X

Agency Nos. EU-FY13-120 & EU-FY15-005

DECISION

On December 18, 2017, 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 27, 2017 final order concerning her equal employment opportunity (EEO) complaint.
She alleged 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.

BACKGROUND

At the time of events giving rise to these consolidated complaints, Complainant worked as a
Principal of the AF North International Middle School/High School (AF North) at the Agency’s
Defense Education Activity - Overseas Schedule facility in Great Britain.

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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Complaint EU-FY13-120

On September 17, 2013, Complainant filed her first EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), national origin (French),
color (Black), and age (59) when:

1. On or about August 16, 2013, the Superintendent of Schools for the Isles District
(“RMO 1”) involuntarily reassigned Complainant from her position as Principal
of the AF North Middle/High School to the position of Principal of Lakenheath
Middle School.

2. On or about August 16, 2013, Complainant was rated as “progressing” on her
Multi-Dimensional Administrator Performance Appraisal (“MAPA”).

Complaint No EU-FY15-005 (filed on January 21, 2015)

3. Whether Complainant was subjected to unlawful harassment based on her race,
color, national origin and / or in retaliation, when:

a. From October 7, 2013 through March 3, 2014, the Assistant Superintendent
(“RMO2”) directed Complainant to write up or counsel employees.
b. On December 2, 2013, March 6, 2014, June 12, 2014, and September 10 and
12, 2014, RMO2 called Complainant into his office to justify her decisions in
front of her subordinates.
c. On numerous occasions between October 7, 2013, and March 3, 2014, RMO2
questioned Complainant’s leadership activities, but did not question other
employees when they promoted this school activity.
d. From June through October 2014, RMO2 summoned Complainant’s
employees to his office without Complainant’s knowledge.
e. On September 10, 2014, RMO2 instructed Complainant “to meet him in his
office to discuss serious morale issues that were not raised.”
f. On October 10, 2014, RMO2 threatened Complainant when she tried to
explain that she could not pay a substitute teacher a full day’s pay for a half
day’s work.;
g. On October 28, 2014, RMO2 instructed Complainant’s subordinates not to
follow her directive on informing parents about their delinquent student lunch
accounts.
h. On September 12, 16, and October 10, 2014, RMO1 failed to respond to
Complainant’s allegations of harassment perpetrated against her by RMO2.
i. On numerous occasions, RMO2 placed her in hostile confrontational
situations with an employee’s relative.
j. On December 18, 2014, RMO 2 instructed Complainant’s secretary not to
prepare resignation paperwork for a substitute teacher, contradicting
Complainant’s instructions.
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k. On several unspecified occasions, RMO1 and RMO2 contradicted
Complainant’s instructions; and RMO2 provided his cell phone number to
Complainant’s staff to encourage them to call him directly.

Claim 1 – Reassignment

On August 5, 2013, Complainant was notified of the decision to reassign her to the position of
Principal of the Lakenheath Middle School (“LMS”). The directed reassignment was effective
as of October 7, 2013.

The pertinent record reveals the following facts. Complainant had been employed by the federal
government for over twelve years. Complainant began her tenure as a school principal during the
school year 2011-2012. She was promoted to the position of Principal directly from a curriculum
position. She had not worked as an Assistant Principal prior to her promotion to Principal.

As background, the AF North International Middle/High School is one of three international
schools run by the Agency. The AF North educates the children of the allied forces, as well as
those of the North American Treaty Organization (NATO) members.

During the School Year (SY) 2012 – 2013, an influx of elementary school students led to the
“split” of AF North into an elementary school and a middle/high school. Complainant worked as
the principal of the middle/high school. A cohort worked as the elementary school’s principal.

In September of 2012, a new Superintendent was hired and became Complainant’s supervisor.
He worked in a different country. Complainant contends that in 2012, she was pressured by
RMO1 to hire an Administrative Officer (“AO”). Complainant insisted that she did not need an
AO because she had an Assistant Principal. Complainant felt she was being forced to hire her
cohort’s husband.

Complainant claimed her superiors asked her to violate the Office of Special Counsel’s
Prohibited Personnel Practices, the hiring freeze and the Agency’s policies by hiring for this
position.

Without Complainant’s permission, the hiring process was initiated. Complainant cancelled the
hiring request because she did not authorize it. Ultimately, RMO1 chose not to pursue the hiring
of the AO, as a hiring freeze was instituted.

Complainant also challenged certain international traditions that had been in place at the school
before she became Principal. She would not allow American students to take Canadian classes.
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She made unilateral decisions regarding the school’s curriculum, homework policy, the grading
system and a holiday celebration.2 RMO1 averred that this evidenced “Complainant’s lack of
support for the internationalism of AF North.”

RMO1 averred that Complainant, as a first-year principal, was not prepared to lead a K-12
school, operating in a “unique international environment.” RMO1 asserted that Complainant’s
“application and execution of her actions at times did not reflect a sensitivity of a caring leader.
i.e. not listening or considering others’ input before making decisions.” Report of Investigation
(ROI) at 942.

Complainant averred that her refusal to violate the rules and her reporting alleged violations to
higher leadership motivated RMO1 to punish her by reassigning her to another school.
Complainant averred that she was the only principal involuntarily reassigned at a time when the
Agency had canceled “principal rotations.” The Agency suspended the Administrator Rotation
Program for the School Year 2013 to 2014 in order to “slow down spending.”

Another management official, RMO3, stated that the reassignment from one type of school to
another is not a demotion, but she conceded that high school principals are paid more than
principals of the middle or elementary schools.

Complainant was placed on the lower Middle School pay grade, but Complainant received a
salary increase from $99,000 to $101,540.

The Agency chose another principal for the spot that Complainant had held. The replacement
was younger and not African-American. The replacement worked at LMS for six years at the
time of her reassignment. During the replacement’s tenure, LMS had earned the Department of
Education’s Blue-Ribbon Award for sustaining consistently high student performance.

Claim 2 – Performance Appraisal

On August 16, 2013, Complainant received her performance appraisal for the 2012-2013 school
year. Compliant averred that RMO1 lowered her MAPA rating in retaliation for Complainant’s
refusal to promote nepotism. She also averred that the low rating was based upon anonymous
comments received prior to the 2012-2013 school year. Her affidavit noted that RMO1
supervised seven principals and the only person to receive a less than “exemplary” rating was
also another African-American principal.

2 Complainant averred that the AF North had a long tradition of celebrating the traditional
Sinterklaas holiday, in December, during Christmas. Complainant objected to the school’s
participation in this celebration on the grounds that the celebration is racist. The Netherlands’
holiday celebration includes a character called “Zwarte Piet,” Black Pete. Complainant averred
that this character is offensive to many people, including people of color. RMO1 criticized her
for her opposition to celebrating Sinterklaas.
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RMO1 admitted that Complainant’s performance rating was negatively affected when
Complainant chose not to utilize the school’s “full FTE authorization” i.e. when she chose not to
hire an AO. RMO also claimed that other factors contributed to his rating decision. In
Complainant’s evaluation, he asserted that Complainant’s staff did not “have confidence” on her
leadership. He averred that he recommended a management directed reassignment because he
believed it was in the “best interest of AF North and Complainant.” RMO1 stated his belief that
Complainant, as a first-year principal, was not prepared to lead a K-12 school, operating in a
“unique international environment.” RMO1 stated that Complainant was “not listening or
considering others’ input before making decisions.” Other management officials stated that
Complainant made unilateral decisions regarding the school’s curriculum, homework policy,
grading system and holiday celebrations which evidenced Complainant’s “lack of support for the
internationalism of AF North.”

Claim 3 – Hostile Work Environment

Complainant averred that when the Director of DoDDS-Europe, who was RMO1’s immediate
supervisor, first came to AF North, she greeted Complainant; and her first question to
Complainant was, “How did you get this position?” Complainant averred this was a curious
question to ask of an African American principal.

After the reassignment, the Assistant Superintendent (RMO2) became Complainant’s immediate
supervisor. She states that RMO2 knew of Complainant’s September 2013 complaint
concerning her transfer and performance appraisal. In retaliation, Complainant averred that
RMO2 interfered with her management decisions and undercut her in front of her staff.

Complainant averred that she was harassed and bullied by RMO2. She said that almost from day
one, RMO2 created a hostile work environment and made it “nearly impossible” for
Complainant to perform her job duties by obstructing her and conspiring with her staff to
diminish her authority and to humiliate her. Her allegations detail the incidents that formed the
basis of her hostile work environment claims regarding the actions of RMO2.

Complainant also averred that RMO2 did not try to undermine the authority of other principals,
but, instead, singled out Complainant for harsh treatment and RMO1 “refused to intervene to
stop RMO2’s conduct. Complainant states that on at least five occasions, RMO2 summoned
Complainant to his office and interrogated her, forcing her to “justify” her decisions in front of
the assistant principal and subordinates. Complainant averred that she “complained constantly to
[RMO1] about the harassment on the part of RMO2 and attributed it to reprisal and
discrimination. She points to the filing of her second complaint for the purpose of asserting her
discrimination and reprisal claims based on RMO2’s conduct.

It was undisputed that on five occasions, RMO 2 called Complainant into his office and
questioned her about her decisions.
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In addition, on numerous occasions between October 7, 2013 and March 3, 2014, RMO 2
questioned Complainant’s leadership activities, but she averred that he did not question two other
principals when they promoted this school activity. Complainant averred that he threatened
Complainant after she tried to explain that she could not pay a substitute teacher a full day’s pay
for a half day’s work. On several occasions, RMO2 contradicted Complainant’s instructions and
gave Complainant’s subordinates his cell phone number to encourage them to call him directly.

On October 10, 2014, Complainant met with RMO1 and RMO2. The three discussed various
personnel issues, including the termination of one of the school’s office staff. During this
meeting, Complainant informed RMO1 that she believed she was being harassed by RMO2.
During the meeting, and in her memo for the record penned after the meeting, however,
Complainant did not state that the alleged harassment she perceived was perpetrated because of
her protected status.

At the meeting, RMO1 informed Complainant that RMO2 was her supervisor and it was
appropriate for him to discuss her performance and to provide her feedback. While he did not
believe RMO2’s supervision of her work performance to be harassing, RMO1 directed RMO2 to
direct Complainant’s staff to speak with her, not RMO2.

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.

Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 30,
2016, motion for a decision without a hearing and issued a decision by summary judgment in
favor of the Agency on November 3, 2017.

The AJ Decision

The AJ stated that she “failed to find any evidence that Complainant identified the harassment as
unlawful and discriminatory.” The AJ found that the incidents of which Complainant
complained did not rise to the level of unlawful harassment. The AJ found that the evidence of
record failed to establish a nexus between Complainant’s membership in protected groups and
the actions Complainant considered harassing.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

On appeal, Complainant maintains that the AJ ignored genuine and disputed material facts
offered by Complainant and improperly weighed conflicting factual accounts in favor of the
Agency. Complainant asserts that the Agency failed to provide specific examples of wrongdoing
on the part of Complainant to justify the drastic step of a forced reassignment and the decision
was based on RMO1’s “perception” of performance, without specificity.
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Complainant states that her race was a factor because Complainant expressly opposed the
celebration of Sinterklass as racist and RMO1’s criticism was used as a basis for her being traded
for a white principal. Complainant states that this was an important link between what happened
to her and her race, which the AJ failed to recognize. She states that the AJ ignored evidence that
the replacement was a “problem performer and white and she got promoted, while Complainant
got demoted.” She also asserted that RMO1 refused to intervene to stop RMO2’s conduct. She
argues that RMO2’s treatment of her and disrespect did rise to the level of a hostile work
environment.

ANALYSIS AND FINDINGS

On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are
material facts at issue. However, 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. While Complainant has, in a very general sense, asserted that
facts are in dispute, she has failed to point with any specificity to particular evidence in the
investigative file or other evidence of record that indicates such a dispute.

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 her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Disparate Treatment: Reassignment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
or she must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Center v. Hicks, 509 U.S. 502, 519 (1993);
Burdine, 450 U.S. at 256.

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination.
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See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990);
Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even assuming for purposes of analysis that she established the elements of her case, the Agency
provided a legitimate, non-discriminatory reason for reassigning Complainant. With regard to the
first claim, the record appears to be undisputed regarding RMO1’s negative perception of
Complainant’s management style as a new principal and his belief that Complainant was not
supportive of the AF’s multinational traditions. Moreover, whether the perceptions were justified
is not material to the question at issue of whether the decision was based on Complainant’s
protected groups. As to the issue of whether this reassignment was discrimination-based or due
to retaliation, we agree that there was insufficient evidence to raise a genuine issue of material
fact regarding the Agency’s stated reasons for its actions.

Regarding the second claim, we note that Complainant withdrew her claim regarding her
performance appraisal.

Harassment

To establish a claim due to a hostile work environment on any basis, a complainant must show
that: (1) he or she is a member of a statutorily protected class; (2) he or she was subjected to
unwelcome conduct; (3) the harassment complained of was based on his / her protected class or
EEO activity; and (4) the harassment had a purpose of effect of unreasonably interfering with his
/ her work performance and / or creating an intimidating, hostile or offensive work environment;
and (5) there is a basis for imputing liability to the employer. No finding of harassment will be
found where Complainant has failed to establish that any of the Agency’s actions were motivated
by discriminatory animus.

The record, looking at the evidence in the light most favorable to Complainant, did not show
harassment based on her protected class or EEO activity. Other than her own testimony, there
was insufficient evidence to link the Agency’s actions to her race, national origin, age or prior
EEO activity.

The record is undisputed that upper management doubted her leadership and management skills.
We also find that the conduct of management, even if assumed to be true and considered in the
aggregate, could not be considered sufficiently severe or pervasive so as to create a hostile work
environment. The Supreme Court has noted that the legal standards for assessing discrimination
claims must ensure that the EEO laws “do not become a ‘general civility code’ [and must be
sufficiently rigorous to]…filter out complaints attacking the ‘ordinary tribulations of the
workplace.”” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

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CONCLUSION

Accordingly, for the reasons stated herein, we AFFIRM the Agency’s Final Order.

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 tends 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.
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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

July 23, 2019
Date