Verla G.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Dec 16, 2016

0120162039 (E.E.O.C. Dec. 16, 2016)

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

Verla G.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120162039

Hearing No. 570-2015-00452X

Agency No. EU-FY14-082

DECISION

Complainant filed an appeal from the Agency’s final order dated May 5, 2016, finding no
discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In her complaint filed on June 1, 2014, Complainant alleged discrimination based on race
(Black), sex (female), age (DOB: 1963), and in reprisal for prior EEO activity when she was
subjected to harassment in that:

(1) On March 25, 2014, her Principal (P1) announced at a staff meeting that Complainant
would be serving as Teacher of Special Education children at the Rainbow Elementary
School (ES);

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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(2) On April 3, 2014, a parent came to her class and accused her of not speaking to her
child and made it clear to her that P1 was orchestrating a campaign of parents and staff
to seek her removal from the gifted program;

(3) On April 4, 2014, she was asked to attend a meeting to discuss the gifted program
where P1 made disparaging and false statements about her;

(4) On April 15, 2014, P1 and other staff decided to temporarily reassign her to service
kindergarten students who were not part of her official program; and

(5) On April 18, 2014, she was asked to attend a meeting to discuss reading and testing
materials where her coworker shouted at her and humiliated her.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On April 13,
2016, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision. On appeal, Complainant maintains she
was discriminated against by P1 as alleged.

ANALYSIS AND FINDINGS

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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time period at issue, Complainant was a
Gifted Resource Teacher at Rainbow ES, Bavaria District (southeast Germany), Department of
Defense Dependents Schools-Europe.
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With regard to claim (1), Complainant indicated during the investigation that the meeting at
issue was actually held on March 28, 2014, rather than March 25, 2014, and the
announcement P1 made was humiliating and offensive. P1 denied making the subject
announcement during the staff meeting at issue. There is no evidence that Complainant was
actually assigned to the position of Teacher of Special Education children.

With regard to claim (2), Complainant claimed that the identified parent, who was a Learning
Impaired Aide, came into her class and accused her of not speaking to the parent’s child. The
parent however indicated that she merely went to speak to Complainant because she was
worried that Complainant was upset with her and her children as Complainant did not greet
them when they said hello to her in the hall. P1 denied any involvement with this incident at
issue or seeking Complainant’s removal from the gifted program as alleged.

With regard to claim (3), P1 indicated that P1 asked Complainant to meet with P1 to further
discuss Complainant’s electronic message P1 received from Complainant stating, “Do you
really want to know how my school year is going?” P1 stated that during the meeting
Complainant complained about the incident, described in claim (2). P1 indicated that P1, then,
talked to the parent who denied the incident as alleged.

With regard to claim (4), P1 stated that Complainant was never reassigned as alleged; rather,
Complainant along with other teachers were asked and scheduled to help cover classes during
the school collaboration time which was approximately six times a year for 40 minutes. P1
indicated that as a gifted education teacher, Complainant provided enrichment to all
classrooms.

With regard to claim (5), the coworker, identified by Complainant, denied shouting at or
humiliating Complainant during the technology meeting at issue. The coworker stated that she
merely asked Complainant if she enjoyed using the I-pad along with the other participants and
it was her impression that Complainant enjoyed the session.

It appears that Complainant did not get along well with her coworkers and P1 and she did not
feel comfortable with the manner in which they interacted with her. Complainant failed to
show that there were any similarly situated employees not in her protected groups who were
treated differently under similar circumstances. We find that Complainant failed to show that
she was subjected to harassment or that any of the Agency’s actions were motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), 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. The requests 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 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.

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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 16, 2016
Date