0120091885
08-20-2009
Susan C. O'Leary, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Susan C. O'Leary,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120091885
Hearing No. 570200800541X
Agency No. EUFY07085
DECISION
On March 10, 2009, complainant filed an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Teacher (Mixed Elementary), TP-1701-03, at the Mark Twain Elementary
School (MTES) in Heidelberg, Germany. Complainant began the position
August 20, 2006 and was still in her first year probationary status during
the period at issue herein. On July 11, 2007, complainant filed an EEO
complaint alleging that she was discriminated against on the basis of
her association with a person with a disability (complainant's daughter)
when:
1. Effective June 15, 2007 complainant was removed from her position
at the agency.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the agency's
September 23, 2008 motion for a decision without a hearing after
complainant filed no objection to the agency's motion. The AJ issued
a decision without a hearing on February 12, 2009. Specifically, the
AJ found that complainant failed to establish a prima facie case of
association discrimination because she failed to show she was treated
differently than similarly situated coworkers who were not associated with
a person with a disability. The AJ further found that, assuming arguendo
that complainant established a prima facie case, the agency articulated
a legitimate, nondiscriminatory reason for its action, namely that they
terminated complainant's employment because of numerous complaints they
had received about her from parents and other teachers. The AJ next found
that complainant failed to show that the agency's articulated reason was
a pretext for discrimination. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
she was subjected to discrimination as alleged.
On appeal, complainant disputes certain statements made by agency
officials and further maintains that agency officials falsified certain
documentation but complainant does not address whether or not the agency's
articulated reason for its action is a pretext for unlawful association
discrimination.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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 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. Department of Defense, 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).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). It is unlawful under the
association provision to "exclude or deny equal jobs or benefits to,
or otherwise discriminate against" an individual based on his or her
association with an individual with a known disability. Polifko v. Office
of Personnel Management, EEOC Request No. 05940611 (January 4, 1995). In
order to establish a prima facie case of disability discrimination
by association under the Rehabilitation Act complainant must show:
(1) that she was subjected to an adverse employment action; (2) that
she was qualified for the job at that time; (3) that her employer knew
at that time that she had a relationship with an individual with a
disability; and (4) that the adverse employment action occurred under
circumstances which raised a reasonable inference that the disability of
the individual with whom she had a relationship was a determining factor
in the employer's decision. Helena v. Department of Defense, EEOC Appeal
No. 07A30108 (September 30, 2004) (citing Den Hartog v. Wasatch Academy,
129 F.3d 1076, 1085 (10th Cir. 1997)).
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory reasons
for its conduct. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). As noted
above, the termination letter states that complainant was removed during
her probationary period for unprofessional conduct based on a number
of incidents. The first incident involved a breach of confidentiality
when complainant allegedly undermined the Principal (RMO) by asking a
student intern to take minutes at a meeting between complainant and
school officials when taking the minutes was RMO's responsibility.
The second incident involved complainant being fifteen minutes late
to a class she was teaching. The third incident involved a complaint
from another teacher that complainant could be heard shouting demeaning
and belittling comments to her students during class. According to the
termination notice, complainant's work-colleague said that such behavior
had been going on for months and had been getting worse. The fourth
incident involved yet another teacher who wrote to RMO about concerns she
had concerning complainant's treatment of her students, including use of
inappropriate language. The fifth incident occurred when RMO discovered
the Individualized Education Program (IEP) of a student tucked into a
binder complainant was carrying when such documents are supposed to be
kept in a confidential file under lock and key.
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, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Following a review of the record, we find that complainant has failed
to establish that the agency's articulated reason for its action was a
pretext for discrimination. Instead complainant maintains that agency
officials tried to change the diagnosis of her daughter's condition and
points to various alleged inconsistencies in the testimony of various
agency officials to prove her point. We note, however, that even
assuming arguendo that agency officials tried to alter the diagnosis
of complainant's daughter's condition as complainant alleges, such
actions are irrelevant to the matters at issue herein. We note again
that the issue in this case is whether or not complainant's removal
from her teaching position was discriminatory, not whether or not
agency officials disagreed with and/or tried to alter the diagnosis of
complainant's daughter's condition.
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. Complainant has consistently argued that the complaints
made against her by parents and other teachers were fabricated by agency
officials and that certain statements allegedly made by parents and
teachers were falsified or fabricated and that agency officials added fake
signatures to the documents. If complainant were able to support such
claims with evidence, this would go a long way in helping her establish
that the agency's articulated reason for her removal is pretextual.
However, neither in her Formal Complaint, nor during the investigation,
nor during the hearing, nor on appeal, has complainant produced a
single iota of actual evidence to support her claims of fabrication by
the agency. This despite the fact that in her appeal brief, complainant
states "I have also included a signed statement by a parent who says
that her letter was altered and then [RMO] tried to have her sign the
letter hiding the changed information without telling her she had altered
her statements completely." A thorough review of complainant's appeal
package and the record as a whole fails to reveal any such statement by
a parent in support of complainant's claim of fabrication.
We note that, a party opposing a decision without a hearing may not rest
upon mere allegations in the pleadings or upon conclusory statements
in affidavits; rather, she must go beyond the pleadings and support
her contentions with proper documentary evidence. Celotex v. Catrett,
477 U.S. 317, 324 (1986). Here, complainant has not provided any
witness testimony or other evidence to support her version of the events
surrounding her removal. Accordingly, complainant has not shown that the
management officials responsible for issuing the removal were motivated
by discriminatory animus toward her daughter's disability. Therefore,
we discern no basis to disturb the AJ's decision and the agency's final
order is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 20, 2009
__________________
Date
2
0120091885
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120091885