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

Equal Employment Opportunity Commission

Jul 18, 2017

0120151635 (E.E.O.C. Jul. 18, 2017)

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

Anya F.,1
Complainant,

v.

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

Appeal No. 0120151635

Hearing No. 570-2013-00574X

Agency No. EU-FY12-053

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 29,
20152, final order 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Health and Mathematics Teacher at Baumholder High School, located
within the Kaiserlautern District in Germany. On June 11, 2012, Complainant filed an EEO
complaint in which she alleged that her immediate supervisor, the school Principal, discriminated

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 her appeal with the Commission after she received a copy of the summary
decision of an Equal Employment Opportunity Commission Administrative Judge but before she
received the Agency’s final order implementing that decision.
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against her on the bases of race (African-American), disability (hearing impairment), and age
(70). In particular, she alleged that:

1. Beginning in January 2012, the Principal failed to provide her with a reasonable
accommodation; and

2. On February 1, 2012, the Principal placed her on an intervention plan.

Complainant averred that while she was on her winter break in Louisiana between December
2011 and January 2012, she visited a physician who was a hearing specialist. She was diagnosed
with hearing loss in both ears and while still on break, purchased hearing aids. Investigative
Report (IR) 194; Complainant’s Deposition dated June 28, 2014 (CD) 28-29. When asked by
the investigator when she requested a reasonable accommodation, she replied that she was given
a reasonable accommodation for her hearing loss during the school year, but did not elaborate
when pressed for details. IR 194-95. In particular, she failed to submit a supplemental affidavit
regarding the details of her disability and alleged reasonable accommodation request despite
being asked by the investigator to do so. IR 2, 4, 201-02. When asked when the Principal
denied her request for a reasonable accommodation, she replied that the Principal did not provide
her with the necessary paperwork or otherwise offer any support. IR 195, 198. The Principal
averred that she never received an accommodation request from Complainant, that Complainant
never notified her that she was having difficulty hearing, and that in a conversation that occurred
sometime in January 2012, after Complainant returned from her winter break, Complainant had
mentioned to her that her hearing was better and pointed out her hearing aids. IR 206-07, 211.
Complainant herself testified at her deposition that this conversation with the Principal had taken
place as the Principal had described it. CD 29-30.

In a memorandum dated February 1, 2012, the Principal notified Complainant that she would be
placing her on an intervention plan in order to improve her performance as a teacher. The
Principal noted in the memorandum that Complainant’s job performance was not meeting
acceptable levels in all five of her critical performance elements: mastering content and
curriculum; presenting organized instruction; managing for effective learning; monitoring and
assessing student achievement; and promoting diversity and equality. She also noted that she
based her decision to implement the intervention plan on five personal observation sessions in
Complainant’s classroom and nine one-on-one conferences that took place between September
and December 2011. IR 70-87, 207. Accompanying the intervention plan are a letter of
counseling dated September 23, 2011, and numerous hand-written letters, typed notes and emails
from parents, students, and fellow teachers documenting Complainant’s performance
deficiencies and problems. IR 92-103, 112-42, 151-65, 171-74 207-09. In her affidavit,
Complainant denied, disagreed with, or disputed the assessments of her performance set forth in
the counseling letter she received on September 12, 2011. IR 195-97.

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.
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Over Complainant’s objections, the AJ assigned to the case granted the Agency’s July 18, 2014,
motion for summary judgment and issued a decision without a hearing on February 13, 2015.
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.

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. We find that the AJ properly determined that Complainant had not
demonstrated that there existed a genuine issue of material fact such that a hearing was necessary
to resolve a factual dispute or make credibility determinations.

Claim 1 – Reasonable Accommodation

Under the Commission’s regulations, an Agency is required to make reasonable accommodation
to the known physical and mental limitations of a qualified individual with a disability unless the
Agency can show that doing so would cause an undue hardship. See 29 C.F.R. §§ 1630.2 (o)
and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002
(Oct. 17. 2002). We will assume for purposes of analysis that Complainant is a qualified
individual with a disability entitled to a reasonable accommodation. Although Complainant
insists that she had asked the Principal for a reasonable accommodation, the Principal stated that
she had not received any oral or written requests from her. Indeed, the fact that Complainant
told the Principal that her hearing was better and showed the Principal her hearing aids indicates
that she was not asking for an accommodation. When asked by the EEO investigator whether
she told the Principal that she needed an accommodation, Complainant stated that the Principal
did not provide her with paperwork that she needed in connection with her hearing aids, but did
not specify what that paperwork was. CD 32-33. When the investigator asked Complainant
whether she asked the Principal again, she replied that she could not recall. CD 33. When the
investigator asked whether Complainant had emailed the Principal about the paperwork and
whether Complainant had anything in writing that mentioned the paperwork, Complainant
answered that she did not. CD 33. She also admitted that she was not sure of what
accommodation she needed. CD 34-35. Complainant has not presented any other evidence that
she requested a reasonable accommodation for her hearing impairment from the Principal. We
therefore agree with the AJ that Complainant has not established that the Principal denied her a
reasonable accommodation.

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Claim 2 – Placement on an Intervention Plan

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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with in this case since the Principal articulated a
legitimate and nondiscriminatory reason for placing Complainant on an intervention plan. See
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dept. of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). When asked by the
investigator why she placed Complainant on an intervention plan, the Principal responded that
Complainant was not meeting the fully successful standard in any of her job performance
elements. IR 207.

To ultimately prevail Complainant must prove, by a preponderance of the evidence, that the
Principal's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dept. of the
Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant may demonstrate pretext by showing such weaknesses, inconsistencies, or
contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact
finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Service,
EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC
Request No. 0520080211 (May 30, 2008). Despite being asked to provide details as to what
actions the Principal took that caused her to believe that the Principal had discriminated against
her on the bases of age and race, Complainant did not do so. Instead she stated that the Principal
acted based on hearsay from parents, students, and other teachers. She also averred that the
Principal believed the students’ interpretations of events rather than hers and that this was itself
evidence of age discrimination. As to her allegation of race discrimination, she asserted, in
vague and conclusory terms, that the Principal treated her differently than she treated others. IR
198. Beyond these assertions, she has not presented affidavits, declarations or unsworn
statements nor documents that contradict the Principal’s explanation for putting Complainant on
an intervention plan or which call into question the Principal’s veracity. We therefore find, as
did the AJ, that Complainant did not establish an unlawful motivation on the part of the
Principal, and did not establish that the Agency’s reasons for its actions were pretext for
discrimination.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the Agency’s final order, because the
Equal Employment Opportunity Commission Administrative Judge’s issuance of summary
judgment was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred.

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).
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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

July 18, 2017
Date