0120162720
02-15-2018
Vernita L.,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
Vernita L.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120162720
Hearing Nos. 570-2014-00642X, 570-2015-00397X
Agency Nos. EU-FY-13-043, EU-FY-14-031
DECISION
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 July 29, 2016, final order concerning her equal employment opportunity (EEO) complaints. 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 this complaint, Complainant worked as a Teacher at the Agency's "Mixed Elementary, Rainbow Elementary School," in Ansbach, Germany.
On February 20, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic), national origin (Mexican), sex (female), color (Brown), and age (39 in 2012) when:
1. Beginning May 2, 2012, she was reassigned from a full-time position to a part-time position;
2. The Principal denied Complainant's subsequent requests for a full-time position;
3. On December 1, 2013, Complainant's working environment became hostile, when her co-worker interfered with Complainant's ability to teach and the Principal did nothing to stop the interference;
4. On November 20, 2013, her responsibilities were broadened due to discriminatory harassment; and
5. On December 6, 2013, Complainant learned that the Principal did not select her for a full-time position.
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 pertinent record shows the following facts. Complainant was the only Hispanic teacher among the 20 Caucasians and three African-American professional educators on staff at the time of the alleged events. There is no evidence that Complainant had engaged in any EEO activity prior to the time she became a part-time teacher.
Complainant had been employed by the Department of Defense Dependents Schools ("DODDS") for ten years. She reported directly to the school principal (Caucasian, female, American, over age 40). Complainant was viewed as a good teacher. She had no disciplinary actions on her record.
Claim 1 - Reassignment to Part-Time Position
In late April of 2012, the Principal asked Complainant if she would be interested in moving from her full-time teaching position to a part-time teaching position. Complainant stated that she would not be interested. The Principal was persistent in her efforts to encourage Complainant to take the position. On May 2, 2012, Complainant sent an email to the Principal. Complainant states that "the email sought to understand the proposal and its implications, if the offer was accepted." The Principal did not respond to the email. Complainant went on summer break.
The Principal testified that Complainant had agreed to the reassignment. The record included several emails where Complainant stated, "I am interested in the .5 Learning Impaired assignment for 2012-2013 school year." Hearing Transcript (HT), p. 242. There were three emails sent by Complainant to the Principal during the period of May to October of 2012.
The DoDEA policy required a request for Personnel Action, together with a signed, voluntary written agreement from an employee in order to facilitate a reassignment. Complainant asserted that there was no agreement or any voluntary statement of acceptance of part-time work. The Principal testified that Complainant verbally told the Principal that she was interested in the job. Complainant was. the only part-time teacher at the school.
The Principal placed a younger male employee (Caucasian, under age 30) and an older female employee in full-time teaching positions. Complainant averred that the Principal did so by forcing Complainant to go to a part-time position, teaching special education students. The Principal testified that the Agency changed Complainant's status to part-time because Complainant expressed interest in it and confirmed her interest in writing.
The Principal sent an email dated May 2, 2012 to the District Superintendent with a copy to the Interim Superintendent and the Senior Human Resources Specialist. The Principal was told that that the May 2, 2012 email could not be used to process a change in status. Complainant was left in the part-time position for two years.
Claims 2 and 5 - Non-Selection
When a full-time teaching position became available in the 2012 - 2013 and 2013 - 2014 school years, the Principal refused to place Complainant in the position, and instead, the Principal chose the younger, less qualified Caucasian student teacher for the position.
Claim 3 - Hostile Environment / Harassment
Complainant also testified that in 2011, four years earlier, a group of five teachers made fun of her culture by referring to Complainant as the "Mexican," mistreating her and mocking her ethnicity. One witness (Caucasian male), testified regarding the racially derogatory statements made by the group of women who sat in the library every day to eat their lunches. He testified that on numerous occasions, the group referred to Complainant in a racially derogatory way, as "the Mexican" and referred to her Mexican mother. The record shows that there was friction between Complainant and the co-workers.
Complainant testified that she reported the harassment to the Principal and later to the Interim District Superintendent, who was a good friend of the Principal.
On May 12, 2012, the Principal met with the Complainant for the purpose of issuing her final appraisal. Complainant objected to the appraisal because it contained a notation that said that she accepted the part-time position. Complainant explained to the Principal that she had not agreed to accept the part-time position. The Principal testified that she believed the May 2, 2012 email from Complainant was adequate to convey an acceptance.
The Principal placed a younger Caucasian male employee into the teaching position that Complainant had held. Complainant had not signed any voluntary written agreement of acceptance of part-time work and the Principal had not completed a Request for a Personnel Action (RPA). HT at 619 - 625.
Because the necessary paperwork had not been done, Complainant continued to be paid as a full-time teacher, which resulted in a substantial "overpayment." Complainant reported her concerns from August 2012 to December 2012, but the Principal did not take steps to rectify the "overpayment."
Claim 4 - Change in Schedule and Duties
The Agency changed her schedule to five half days, based on the needs of the learning impaired students. In October 2012, Complainant met with the Assistant Superintendent (Caucasian, female) to complain about her work schedule, because Complainant had originally agreed to two and a half days.
In addition, Complainant was assigned cases and tasks as a special education teacher for "more difficult students."
AJ Decision
Complainant filed two EEO complaints, which the AJ consolidated for processing. The AJ held a hearing from April 19 to April 21, 2016. Complainant was represented during the hearing. In addition to Complainant's testimony, the AJ heard from eight witnesses. The AJ issued 19 findings of facts. The record before us includes the Hearing Transcript and the entire Hearing record, including all of the pleadings and exhibits admitted into evidence. The AJ found that Complainant failed to prove the discrimination as alleged.
Reassignment
The AJ found that Complainant established her prima facie case, but the Agency articulated legitimate, non-discriminatory reasons for its actions. The AJ found that "the evidence established the Agency's explanation for its action, i.e. that the Agency changed Complainant's status to part-time because she expressed interest in it and confirmed her interest in writing." The AJ found that Complainant was not credible and that "her own writings revealed her express intent to accept the part-time position." The AJ also found that Complainant later became unhappy with the position when the change in schedule occurred requiring her to work five half days instead of two and a half days as she had originally requested. The AJ found management's explanation was credible and that the Principal believed these hours were necessary to meet the needs of the learning impaired students. The AJ found that the preponderance of the evidence does not support a finding of discrimination on any of the alleged bases on this claim.
Non-Selection
The AJ found Complainant established a prima facie claim based on race, color national origin and sex. She did not find age discrimination. The AJ found that the Agency's testimony that it selected the younger Caucasian male because he was the only qualified applicant on the Referral List sent to her for her consideration. Complainant's name was not on the Referral list and she was therefore no considered. In addition, the Principal testified that Complainant was already contracted to work part time as a Special Education teacher for the school year.
Harassment
The AJ did not find Complainant's testimony to be credible in claiming the incidents occurred due to harassment and that she reported harassment to the Principal and Superintendent. The AJ also noted that, although Complainant testified at the hearing that the offensive conduct was pervasive, she made no mention of the conduct during her EEO counseling. The AJ found that the friction between Complainant and her co-worker was due to a personality conflict. The AJ found that Complainant failed to establish that she was subjected to harassment because of her race, color, national origin, sex or age.
Reprisal
The AJ found that there was no evidence that she engaged in protected EEO activity or that her non-selection was motivated by retaliation. The AJ ruled in favor of the Agency.
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. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the AJ erred when the AJ limited Complainant's examination of Agency witnesses and erred as a matter of law in finding that Complainant failed to introduce substantial evidence to support her claims.
The Agency contends that the AJ's credibility determinations are supported by the record and entitled to deference.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015). The AJ is responsible for the hearing. We do not find that the AJ abused her discretion in this matter.
Section 717 of Title VII requires that federal agencies make all personnel actions free of race, color, national origin or sex discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on race, color, religion, sex, or national origin"). Similarly, Section 633(a) of the ADEA requires that federal agencies make all personnel actions free of age discrimination. See 29 U.S.C. � 633(a) (all personnel actions affecting federal employees or applicants "shall be made free from any discrimination based on age").
We will assume for purposes of our analysis that Complainant established a prima facie case of discrimination based on each of the alleged protected bases. Although she was 39 years old at the time of the first alleged incident, she was forty at the times of the subsequent incidents. She was qualified and a younger person who was not of her race, color, national origin or gender was offered the position she sought.
In this case, however, we find, as did the AJ, that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency transferred her to a part-time position because she expressed an interest in the position. She was not selected for the subsequent vacancy announcement because her name was not on the certificate of eligible candidates. Her duties were broadened because of the needs of the Agency to meet the needs of the special needs students. She was not immediately selected for the full-time position because she was under contract to the part-time position. She subsequently did move back to a full-time position.
The record supports the articulated reasons. The record shows that Complainant did express an interest in the position. The record shows that Complainant's name was not on the certificate of eligible candidates. The Agency officials averred that they made the decisions based on the needs of the Agency. Each of these reasons is a legitimate, non-discriminatory reason, if true. Complainant did not show that the stated reasons were untrue.
Even if we assumed that the officials involved in the reassignment decision failed to adhere to the appropriate personnel protocol and were mistaken as to whether Complainant actually accepted the offer of reassignment to the part-time position, the record does not show that Complainant's race, color, national origin, sex or age were the true reasons it decided to reassign her, alter her schedule and modify her duties.
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 Fd.2 897 (11th Cir. 1982.)
To prove a harassment claim, a complainant must establish that he or 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. The complainant must also prove that the conduct was taken because of a protected basis - in this case, because of her race, color, national origin, sex, or age. Only if a complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant did not prove that the actions were taken for reasons associated with her protected bases.
For these reasons, we find that the AJ's credibility findings and decision are supported by the record. Complainant did not prove, by a preponderance of the evidence, that the stated reasons were a pretext for unlawful discrimination.
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 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
February 15, 2018
__________________
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.
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