Shela O.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120172964 (E.E.O.C. Dec. 12, 2018)

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

Shela O.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120172964

Hearing No. 570201600509X

Agency No. EUFYIS086

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s [insert date]
Final Order concerning an 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Teacher (Social Studies), at the former Patch High School,2 Bavaria District, DoDEA-Europe,
located in Stuttgart Germany.3

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 In 2015, Patch High School was moved to a new facility and renamed Stuttgart High School.

3 The DoDEA school districts have since been restructured.
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On August 10, 2015, Complainant filed an EEO complaint alleging discrimination by the
Agency on the bases of sex (female), age (65), and reprisal (engaging prior protected EEO
activity) when:

1. Throughout the 2014/2015 school year, the Patch High School Principal (“P1”)
and Assistant Principal (“AP”), failed to act or conduct an investigation when she
reported that she was the subject of ongoing harassment and hostility from a
group of male students, and

2. On June 6, 2015, P1 and AP advised her that for the 2015/2016 school year, she
would be assigned to teach a group of male students who continually harassed her
despite her complaints and requests to be reassigned.

After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”).
Complainant timely requested a hearing. The Agency submitted a motion for a decision without
a hearing. On June 23, 2017, the AJ issued a decision by summary judgment in favor of the
Agency.

The record developed during the investigation of the complaint revealed the following pertinent
evidence.

Claim 1

Complainant worked at Patch High School as a Social Studies Teacher for 28 years. Patch High
School fell within the Bavaria school district, which was one of four school districts comprising
DoDEA-Europe. Complainant reported to AP (53, male, prior EEO activity) and P1 (61, male,
prior EEO activity) as her first and second level supervisors. P1 and AP reported to the Bavaria
District Superintendent (“DS”) (60, female, prior EEO activity), who in turn reported to the
DoDEA-Europe Director (“D1”).

For school year 2014/2015, Complainant taught 5 classes, including World History 9 and 10, and
coached the Debate Team. Beginning in August 2014, a group of 10th grade male students in her
5th period World History 10 class, would harass Complainant, derailing her lesson plans by
raising unrelated topics, talking over her, and acting out. Throughout 2014/2015, Complainant
repeatedly sent these students to the principal’s office. At times, she was forced to call AP or P1
to intervene, as the boys would taunt her by refusing to leave. Additionally, these boys, and
students Complainant did not know, began calling out her name as they passed by her class
room. The students’ tone was “joking” but it developed a “derisive intonation” with “deliberately
derogatory intonations meant to be disrespectful, degrading, insulting, and humiliating.”
Complainant repeatedly contacted AP and P1 for assistance, regarding the students shouting her
name, starting in September 2014.

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On November 25, 2014, Complainant copied D1 and SD on her emails to AP and P1, stating that
they “will not assist with disruptions.” She also felt she did not have the administration’s
support, citing an instance when, as the “ultimate affront,” P1 or AP let a student return to her
classroom after she kicked him out. Complainant also began requesting administrative support,
meaning that an administrator would be in the room during her 5th Period World History 10
class. According to Complainant, a student in another of her classes, and a student on her Debate
Team both told her that they overheard other students planning and discussing ways to annoy
her. Complainant also alleges that other teachers were aware of the harassment, and some even
attempted to help, by talking with one of the boys, and telling students knocking on her door and
running away to stop.

Over the months, Complainant reported various instances of disrespectful, harassing behavior.
For instance, on December 10, 2014, a large group of students barged into Complainant’s
classroom when she was prepping with debate team during lunch. When she locked the door,
they kept banging on it, and rattling the handle. In that instance, P1 banned the students from the
annex, where Complainant’s classroom was located, during lunch. However, Complainant also
reported harassment where she was not sure which student was to blame. Among other things,
she cited two instances when her dry erase markers and eraser were taken and hidden, another
time, a student threw a marker at her, narrowly missing her head, and she noticed that her coffee
pot had been switched off multiple times. In one instance, Complainant alleges that she found a
wad of chewing gum at the bottom of her coffee mug.

In a December 3, 2014 email to P1, AP, SD, and D1, Complainant reiterated her request for “an
administrator in [her] classroom during 5th period.” P1 responded in a December 5, 2014 email,
instructing Complainant to meet with him “to review your classroom management
responsibilities as part of the critical elements of your position and discuss current classroom
management strategies.” Complainant responded that she managed her other 4 classes just fine,
and that in her 44 years of teaching experience, had “never” made such a request before.
Complainant requested an investigation to determine which student was responsible, as she had
with the students she did not know shouting her name in the hallway. On December 9, 2014,
Complainant emailed a list of students she believed to be harassing her to AP and P1, while
copying DS and D1, and requested an investigation. She also attached an October 7, 2014 email
where she requested an investigation. Ultimately, Complainant alleges that P1 and AP
intentionally failed to adequately respond to the student harassment.

Claim 2

On January 9, 2015, Complainant signed an Intent Form for the 2015/2016 school year, where
she checked the option to remain in her current position. She did not include any additional
remarks. Complainant’s Intent Form for the prior year requested reassignment within her current
school, and was accompanied by a written request to no longer teach 9th grade history, explaining
that the 9th graders immaturity, “mostly the boys,” had caused a “a continual problem dealing
with behavior rather than actually being able to teach material.” We note that the boys in her
World History 10 class, would have been in her 9th grade class the previous year.
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Instead of 9th grade World History, Complainant requested to be assigned to World History 10
(Honors or Regular level) classes, or to add a new class, such as Government 12, US History,
Street Law, and Sociology, all of which she had experience teaching, or US History 11, or a
combination of these suggestions.

On or about June 6, 2015, AP finalized the 2015/2016 schedule, and notified Complainant that
she would be teaching, among other things, World History 11. Realizing that the students from
her World History 10 class would likely be in her class again, Complainant requested that she
not have to teach those students. P1 appears to have separated the group members that targeted
Complainant for harassment, but some were still in her World History 11 class. Complainant
believed that P1 and A1 deliberately placed her in a position to be teaching the same group of
students, who would almost certainly continue the harassment.

After the Agency adopted the AJ’s finding that she failed to prove discrimination as alleged,
Complainant raised the instant appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 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).

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. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the agency was motivated by discriminatory animus.

It is well-settled that harassment based on an individual’s sex, age, and/or reprisal for engaging
in prior protected EEO activity, is actionable. See Meritor Savings Bank FSB v. Vinson, 477
U.S. 57 (1986). To prove harassment, Complainant must establish 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 based on her membership in one or more protected classes.
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With regard to her reprisal allegation, Complainant must also prove that the conduct was taken
because of her prior EEO activity. Only if Complainant establishes both of those elements,
hostility and motive, will the question of Agency liability present itself. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Sys. Inc.,
EEOC Notice No. 915.002 (Mar. 8, 1994).

For the required element of discriminatory motive, we note that our analysis focuses on Patch
High School administrators. The AJ’s Decision and the Agency’s Opposition statement to the
instant appeal, erroneously considers the motivation of the group of students that perpetrated the
harassment. Although they were the alleged harassers, the students are not Agency employees,
and they lack authority over terms and conditions of Complainant’s employment. Whether the
students responsible for the harassment were motivated by discrimination or were even aware of
Complainant’s prior EEO activity, is not relevant for determining whether Complainant was
subject to employment discrimination.

We find insufficient evidence to link the alleged harassing actions by Patch High School
Administrators P1 and AP, namely, taking inadequate measures to prevent Complainant from
being harassed by students in 2014/2015, and assigning Complainant to teach the same students
in 2015/2016 to Complainant’s sex, age or retaliation. Complainant’s reprisal claim arises from
her activity as a union representative between 2012 and 2015 for five female teachers at Patch
High School, alleging that under P1 and AP, Patch High School was, among other things, “a
workplace filled with discrimination, hostility, retaliation… abuse of power in terms of
…assignment of work, rooms, and hiring practices.” The generalized allegations of unfair
treatment of female teachers, in Complainant’s grievance procedure, and the fact that AP and P1
were named in Complainant’s reprisal case, without more, cannot establish discriminatory
motive.

Moreover, the email evidence provided by Complainant indicates that while AP and P1 did not
grant her requested remedy of administrative support in the classroom for her 5th period World
History 10 class, they did take steps to prevent further harassment by students. In the emails, P1
instructs Complainant to send the students to the office when they acted up, and on December
10, 2014, in response to a group of boys barging into Complainant’s debate team meeting during
lunch time and pounding on her door, P1 barred the students from entering Complainant’s
hallway during lunch hour. P1 and AP discussed the matter with Complainant and met with the
students. Also, the Agency provided undisputed evidence that Complainant offered to teach
World History 11. It also appears that the group of students were not all assigned to the same
World History 11 class for 2015/2016, greatly decreasing their rowdy impact on Complainant’s
classroom.

On appeal, Complainant has not offered any additional evidence to give rise to a question of
material fact on whether the Agency’s actions were motivated by discrimination, to warrant a
hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant,
a reasonable fact-finder could not find in Complainant’s favor.

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The AJ correctly determined that the preponderance of the evidence did not establish that
Complainant was discriminated against by the Agency as alleged.

CONCLUSION

Having thoroughly reviewed the record and contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order to adopt the AJ’s 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.
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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

December 12, 2018
Date