0120162115
03-15-2018
Zandra N.,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
Zandra N.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120162115
Hearing No. 480201400809X
Agency No. PEFY13143
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission"), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 2, 2016, final decision concerning her 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 worked as a Business and Computer Science Teacher (Mixed Secondary) (TP-1701) at the Agency's Zama American High School in Japan.
On January 4, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), age (68), and reprisal for prior protected EEO activity2 when:
On August 20, 2013, the Principal of Zama High School relieved her from her Extra Duty Compensation ("EDC") assignment as Head Coach Cheerleading.
After the EEO 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 and engaged in the discovery process with the Agency, but subsequently withdrew her request. On February 25, 2016, the AJ dismissed Complainant's hearing request and ordered the Agency to issue a final decision ("FAD"), which it did, pursuant to 29 C.F.R. � 1614.110(b).
Based on a thorough review of record and the Parties' submissions on appeal, we have determined the following undisputed facts:
Complainant had been teaching at Zama Middle and High Schools for 15 years. Her first level supervisor was the Assistant Principal at Zama High School (African American, 35) ("S1") and the Principal, Zama High School (Caucasian, age "older than Complainant") was her second level supervisor ("S2"). Additionally, Complainant served as the Zama High School Cheerleading Head Coach for seven (nonconsecutive) years including the 2012-2013 academic year. The Cheerleading Head Coach assignment was part of the EDC Program governed under the Agency's Regulation 5550.9. All EDC applicants had to be Agency employees, and teachers working at the school where the EDC Program was located received priority selection. As with the previous year, Complainant was the only candidate for the Cheerleading Head Coach position in 2013-2014, which included $3,915.00 compensation.
On June 5, 2013, via faculty-wide email, Complainant was named Head Coach Cheerleading on the EDC assignment roster for the 2013-2014 school year. receiving the email, Complainant conducted cheerleading try outs, and requested the documentation for medical and power of attorney waivers from the students, to ensure they could participate in practice when she returned from summer vacation. Complainant left for vacation, returning August 13, 2013. The cheerleading team's first scheduled performance during the football game on August 23, 2013, the Friday before school started.
Unbeknownst to Complainant or faculty, the cheerleading team, eager to practice and learn new stunts, sought out a volunteer coach on Facebook while Complainant was away. The individual who responded ("C1") (Caucasian, 28) C1 had a combined total of 12 hours training at a Cheer Judge Clinic (both safety and panel judging), "multiple years" between 2005 and 2011 as a cheer/tumbling coach at "various high schools," and a background in gymnastics and competitive cheerleading, with 4 years cheerleading at the high school level (on a team that won state champion one of those years), and 1 year on the Georgia State Cheerleading team, which won 5th place at Nationals. S2 became aware of the arrangement sometime during the summer, as C1 and the cheerleaders practiced on school grounds. Although the cheerleaders had not provided the required paperwork and C1 had not undergone a background check and was not affiliated with the Agency, S2 allowed the practices to continue.
On August 15, 2013, at C1 and the cheerleaders' request, S2 unlocked Complainant's office located the cheerleading uniforms, and distributed them to all the cheerleaders, including those who had not formally made the team. Later that day, Complainant became aware that S2 distributed the uniforms when she contacted the Head Cheerleader ("HC") to schedule their "first" practice. As the cheerleaders had plans that weekend, they scheduled practice for August 19, 2013, 4 days before their first scheduled performance. The record contains an application for the EDC Head Coach Cheerleading position signed by C1, and dated August 15, 2013.
On August 19, 2013, Complainant met with the cheerleading team for practice in the school gym, and was dismayed to learn that most had not brought the release forms they needed to be able to practice. Then, the Athletic Director opened the door to check if the cheerleaders had adult supervision. For the first time, Complainant became aware that the cheerleading team had been practicing in her absence, without forms and unsupervised on school grounds. As S2 was on furlough that day, Complainant attempted to ask the cheerleaders about the early distribution of uniforms. C1, who Complainant had never met, came forward and allegedly told Complainant not to "point fingers" or question the team, but to direct her questions to S2. Complainant responded that she was not "pointing fingers," but simply wanted to know what was going on. Then, a parent Complainant recognized, and her daughter, who had not tried out for the team, stepped in and told Complainant to direct her questions to S2. Complainant noted that C1 "spoke with assuredness" about "changes" she would make if she were able to work with the cheerleaders, as though she, not Complainant, was their coach.
On August 22, 2013, Complainant, accompanied by the Faculty Representative Spokesperson ("FRS") (Native American, 53), met with S1 and S2. S2 asked Complainant about complaints he received from parents the previous year about her performance as Cheerleading Head Coach, including complications with uniform orders and payments, cheerleaders not performing at all the basketball games, and instances of cheerleaders practicing without adult supervision, which was prohibited and a safety concern. Complainant was blindsided, as the only two complaints she recalled from parents concerned students who did not make the team (S2 overrode both decisions). FRS asked for copies of these complaints and S2 responded that he did not have any complaints in writing, but could obtain them if necessary.
Then, S2 "stunned" both Complainant and FRS by informing Complainant that he was making a change, and that he was "relieving" her from her EDC assignment, as they had another coach, who had been working with the cheerleaders "all summer." When FRS showed S2 the June 5, 2012 email appointing Complainant as Cheerleading Head Coach, and another email instructing all EDC appointees, to sign their contracts, S2 explained that Complainant had technically not signed her contract and her appointment was by default, as there were no other candidates. Complainant felt publicly humiliated as the incident caused rumors and created tension and awkwardness between her and the cheerleaders and their parents. On August 23, 2013, C1 signed the Cheerleading Head Coach EDC contract. She was provided with paperwork to become a substitute teacher, to meet coaching eligibility requirements under Agency regulations.
The Agency's FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, the record supports that S2 acted within the scope of his authority as Principal when he unilaterally decided to relieve Complainant of her Cheerleader Head Coach assignment without warning, before she signed her EDC contract. S2 acknowledges that Complainant is the only individual he has ever relieved from an EDC position in this manner, but explains that he felt "compelled" to do so based on legitimate nondiscriminatory reasons concerning complaints about her performance, and the availability of a superior candidate interested in the position.
Pretext
Complainant contends that S2 is not credible and that his statements about her performance are pretext to replace her with an "attractive" white woman 40 years younger than her, and as an opportunity for retaliation. Both FRS and Complainant were "stunned" by S2's decision to relieve Complainant from her assignment, particularly because S2 admitted he could not provide them with any of the complaints he cited as the basis for his decision in writing. The record supports Complainant's contention that S2 "never notified [her] of any problems that threatened her job as coach" and Complainant found the complaints S2 described "very difficult to understand since [she] knew most of these parents and had communication with them via email and in person." Alternately, Complainant argues that even if S2 could have furnished written complaints, teachers outside her protected classes who received complaints yet were not relieved of their EDC assignments. Complainant also disputes that C1 is a superior candidate.
Complaints about Conduct/Performance
We find sufficient evidence in the record to support S2's proffered legitimate nondiscriminatory reason that Complainant had performance issues in her role as Cheerleading Head Coach, and that parents and cheerleaders complained. S1 recounts complaints from parents that Complainant "left [the cheerleaders] alone at practice, she wouldn't help them learn anything new, [and] she wouldn't let those on base who knew how to cheer assist her with coaching them even after they offered." S1 also stated that "several cheerleaders complained to [her] a few times last year that [Complainant] wasn't at practice the whole time and that they were often left alone to practice on their own." These allegations and others are raised in written statements by three parents, supplied in support of S2's decision to replace Complainant with C1 as the Cheerleading Head Coach. While one of the parents provided positive feedback about Complainant, particularly her involvement fundraising for the team, they still voiced a preference for C1 based on C1's enthusiasm and training methods.
One of Complainant's colleagues ("CW1") (Mixed Race, 42) also confirmed that administrators received complaints from a former cheerleader who "did not agree with Complainant's methods of coaching" and encouraged other cheerleaders to complain. However, CW1 emphasized that such complaints are usually not grounds for losing an EDC assignment, and based on her personal experience, she believed S2 was motivated by discrimination. FRS, who described S2's demeanor as that of an "interrogator" during the August 22, 2013 meeting, felt S2 relieved Complainant of her EDC assignment because of her race and age. According to FRS, S2, "favors younger women," and in her capacity representing employees, FRS "had several complaints [in 2013] from teachers that are young white women, concerning sexually inappropriate comments that [S2] made to them."
However, Complainant's own testimony supports some of these complaints. In both 2012 and 2013, Complainant failed to meet the Agency's Pacific Area Interscholastic Athletics Program Manual ("PAIAP Manual"), requirement that the team have 10 days of practice prior to their first performance. Complainant does not dispute that the other school sports began practice in early to mid-August, and she was aware the cheerleaders could not practice without adult supervision. Yet, she did not modify her vacation or arrange for a substitute coach so the team could practice in her absence. Instead, she argues that teachers were not required to return until the Wednesday before school starts, and (though not reflected in the schedule) that the football games they miss due to lack of preparedness are merely "scrimmages," not regular season games. By scheduling the first practice for August 19, 2013, Complainant neglected her obligation under the PAIAP Manual, and knowingly denied the cheerleading team their first opportunity of the year to perform. Further, Complainant confirms that she was regularly late to practice due to after school meetings and that practices often focused on stretching rather than routines and stunts because the cheerleaders had to master the "fundamentals" first. "Appendix D" for Agency Regulation 5550.9 provides that the Cheerleading Head Coach's responsibilities include establishing and maintaining regular practice times and places and teaching "skills" of the program. Finally, the cheerleading team's independent efforts to find an adult to assist them demonstrates a level of enthusiasm for their sport that based on her submissions and lack of involvement Complainant does not seem to encourage or foster.
Availability of a Superior Candidate
As for the Agency's second legitimate nondiscriminatory reason for relieving Complainant of the Cheerleading Head Coach assignment, the availability of what S2 believed to be a superior candidate, the Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." See Camden v. Dep't of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No. 0520120603 (Jan. 31. 2013). The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. The trier of fact must understand that the focus is to be on the employer's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). Here, Complainant contends that S2's decision was not reasonable because unlike Complainant, C1 had never coached a high school cheerleading team, and C1, as a non-employee, was not even eligible for the assignment.
We have previously found that length of experience or seniority are not necessarily indicative of observably superior qualifications. See Complainant v. Dep't of Labor, EEOC Appeal No. 0120132913 (Oct. 2, 2015). There is sufficient evidence to support that S2 reasonably believed C1 to be a superior candidate based on the best interest of the students and the cheerleading program. Ultimately, this Complaint is result of the cheerleading team proactively seeking out training that Complainant was not providing, specifically more stunts and practices before the start of the school year. C1, with her background in tumbling and cheer routines demonstrated through her summer volunteering that she could provide the team with this desired training. In addition to C1 demonstrated enthusiasm for working with and developing the team's skills, which is praised by multiple parents in the record. Complainant appears to mock such enthusiasm in her appellate brief by repeating S2's term "gung ho" to describe C1, however, we agree that enthusiasm for the position and program, particularly given the nature of cheerleading, is a reasonable quality to consider in selecting a head coach.
Even if S2 violated multiple provisions of Agency Regulation 5550.9 when he appointed C1 as Head Coach Cheerleading, in context, we do not find the decision so unreasonable in terms of business judgment to qualify as pretext for a discriminatory motive. We note S2's mishandling of the matter on additional levels as evidenced by his failure to communicate with Complainant about the complaints, and the way he relieved her of her assignment created an unnecessarily awkward and tense atmosphere, for Complainant, particularly when she had cheerleaders as students in her classes. However, 5550.9, EDC assignments are voluntary, and based on the position description for the Principal, S2 had the authority to unilaterally select EDC assignments. S2 also remedied C1's eligibility by providing her with an opportunity to apply for a substitute teacher position, which she successfully obtained. In light of the evidence supporting the Agency's legitimate nondiscriminatory reasons supported by evidence in the record, we do not find S2's alleged violation of Agency regulations, established pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final 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.
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
March 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.
2 Complainant filed EEO complaints based on race, age, and reprisal in 2008 and 2009 when she was excessed from her teaching assignments in favor of teachers outside her protected classes; both complaints resulted in her requested remedy of reinstatement. Emails in the record show S2, who was Superintendent at the time, knew of Complainant's protected activity when it occurred.
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