0120111246
06-20-2012
Bernadette M. Baker, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (Bureau of Indian Affairs), Agency.
Bernadette M. Baker,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120111246
Hearing No. 443-2010-00117X
Agency No. BIA-09-0113
DECISION
On December 22, 2010, Complainant filed an appeal from the Agency's December 9, 2010 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq. 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 fifth grade teacher at the Agency's Turtle Mountain Elementary School. On January 13, 2009, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity (arising under the ADEA) when:
1. The school principal denied Complainant's request to take two students to the local radio station on a field trip.
2. Complainant received a memo from the Special Education Coordinator on October 21, 2008, advising her not to leave an individual education program (IEP) meeting early, without prior approval from the parents.
3. Complainant was denied a training opportunity to attend a counselor conference because the conference did not pertain to her current position, even though the August 11, 2008 to May 22, 2009, contract stated her title is Counselor.
4. Complainant was terminated on April 8, 2009, during her probationary period.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a Motion for a Decision Without a Hearing. On October 18, 2010, the AJ granted the Agency's Motion with regard to claims (1-3) and denied the Motion as to claim (4). The AJ held a hearing on November 9, 2010, and issued a decision on December 1, 2010.
As to claim (1), the AJ found that Complainant was not subjected to an adverse action nor deterred from opposing discrimination when her request to take students on a field trip was denied. Final Agency Decision at 7. The AJ noted that the school principal's decision had no material adverse impact on Complainant. Id. Assuming Complainant had established a prima facie case of reprisal, the AJ stated that Complainant failed to show that the principal's reasons for canceling the trip were not credible. Id. The AJ stated that the school counselor decided that working on state testing was more important than taking two students on a field trip, and she influenced the principal to cancel the field trip. Id. The principal reasoned that students should not miss school the week prior to achievement testing and a field trip should be for the entire class or grade, not just two students. Id.
With respect to claim (2), the AJ found that Complainant failed to establish a prima facie case of reprisal when she was advised against leaving an IEP meeting without prior approval. Id. The AJ stated that the memorandum cited Agency policy and was not a reprimand. Id. According to the AJ, the Special Education Coordinator sent the memorandum to other staff members who left early. Id.
In terms of claim (3), the AJ found that Complainant performed duties as a teacher rather than a counselor, and the school was unable to justify the costs associated with allowing Complainant to attend a counselor's conference. Id. at 8. The AJ noted that in a separate matter, on September 24, 2007, an AJ found that the Agency discriminated against Complainant when she was not selected for the position of elementary school counselor. Id. at 7. The AJ noted that because the Agency had only one counselor position, and that position was encumbered, it offered Complainant and she accepted a position as a second grade teacher at the counselor rate of pay. Id. at 2. The AJ stated that Complainant served as a teacher and was evaluated as a teacher. Id. at 8. The AJ noted that Complainant claimed that the counselor attended the conference and that she was similarly situated. Id. However, the AJ reasoned that the counselor performed the duties of a counselor and Complainant did not. Id. The AJ further found that the incidents set forth in claims (1-3) were not sufficiently severe or pervasive to constitute harassment and were not based on Complainant's prior EEO activity. Id.
With regard to claim (4), the AJ found that no discrimination occurred. Id. The AJ noted that the three reasons presented by the Agency for Complainant's termination were that she interfered in a student counselor matter, was insubordinate and she told a parent she was a counselor. Id. at 9. The interference in the student counselor matter pertained to Complainant questioning a student about a meeting the student had with the school counselor. Id. The AJ stated that the counselor was a credible witness who informed the principal of Complainant's interference in the matter. Id. With respect to the charge that Complainant was insubordinate, the AJ stated that the principal had a meeting with Complainant to discuss a book from Complainant's class which had provoked complaints from students and parents. Id. The principal told Complainant during the meeting that she did not need to take notes, but Complainant refused to put down her pencil. Id. As to Complainant telling a parent she was a counselor, Complainant believed it was appropriate for her to refer to herself as a counselor because her contract specified that she is a teacher/counselor and she is a certified counselor. Id. According to the AJ, one parent informed the principal that Complainant referred to herself as the school counselor. Id. Complainant acknowledged that she told a parent she is a counselor, not the school counselor. Id. The AJ also rejected Complainant's argument that she was not a probationary employee. The AJ found that Complainant knew she was subject to a probationary period when she was hired as a teacher and that she signed an employment contract agreeing to the probationary period. Id. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the adverse action at issue in claim (1) was that she was subjected to a hostile environment and suffered great stress and fear after her field trip request was denied. Complainant maintains that she was not treated like other employees as the principal would have allowed the counselor to take the students on the trip. Complainant argues that the principal decided that students had to be in school only after he learned that the counselor did not want to take students on the trip to the radio station. With regard to the memorandum from the Special Education Coordinator stating that she left the meeting without prior approval from the parents, Complainant states that she has attended many IEPs as a counselor and a teacher, and has never heard of or known of permission from parents being required to leave early or arrive late. Complainant claims that the Special Education Coordinator would then have been in violation of obtaining parental permission when she arrived late for an IEP on October 30, 2008. Complainant also cites the principal for not obtaining permission from the parent when he did not attend. Complainant maintains that the AJ should not have eliminated the Special Education Coordinator as a witness.
With respect to claim (3), Complainant contends that the AJ erroneously excluded the fact that she held the position of counselor according to her contract and was to perform the duties as assigned. Complainant further claims that the AJ erroneously determined that funds were not available to teachers to attend a counselor conference. Complainant maintains that funds were available for the conference and that she previously attended many counselor conferences. According to Complainant, she spoke to a school board member who told her that funds are always available. Complainant argues that the Agency violated the contract because as a counselor, she was entitled to the same rights as the other counselor.
As for claim (4), Complainant contends that she had a right to document the meeting with the principal. Complainant states that she was not given a reprimand, verbal or written, by any administrator to indicate insubordination on her part. Complainant maintains that she was just as credible a witness as the counselor. Complainant states that the Agency did not present the parents who allegedly complained about her as witnesses at the hearing. Complainant argues that the AJ erroneously determined that the counselor and principal received complaints from parents and students that they were having nightmares about a book she was teaching in her classroom. Complainant acknowledges that she told one parent that she is a counselor, but that she did not inform the parent that she is the school counselor. Complainant contests the AJ's finding that she admitted interfering in counseling matters. Complainant denies saying this and accuses the AJ of taking her words out of context.
Complainant maintains that the counselor was motivated to retaliate against her given that they competed against each other for various positions and that she was aware of her prior EEO activity. Complainant contends that the AJ erroneously determined that she called a parent, and she references an affidavit from that parent in support of her position. Complainant further argues that the AJ should have recused herself from the case because she showed bias and prejudice against her. Complainant notes that the AJ stated she may have prevailed in a prior case, but that does not mean she will prevail again. Additionally, Complainant maintains that her performance ratings over the past several years established that her termination was not attributable to job performance, but rather reprisal. Complainant challenges the principal's statement in the letter of termination that she has been unable to meet said requirements as she points out that he has rated her from "Very Good" to "Excellent".
In response, the Agency asserts with regard to claim (1) that Complainant admitted the decision to cancel the field trip did not impact her. The Agency states that the reason for canceling the field trip was that students should not miss school the week before achievement tests. Further, the Agency states that the few field trips approved each year are for a class rather than two students. The Agency maintains that each of the incidents upon which claims (1-3) are based did not impact Complainant's teaching position. As for claim (2), the Agency asserts that the memo received by Complainant from the Special Education Coordinator was not a reprimand, was issued to other school staff members who left the IEP meeting early without the consent of the parents, and was issued by someone who had no knowledge of Complainant's prior EEO activity.
With regard to claim (3), the Agency states that Complainant was a classroom teacher compensated as a counselor for the purpose of complying with a previous Commission decision. The Agency maintains that it did not permit Complainant to attend the counselor conference because she was not hired to perform counselor duties at the elementary school. With respect to claim (4), the Agency asserts that its decision was to not renew a probationary teacher. According to the Agency, the termination was based on Complainant's conduct and not her performance. The Agency states that Complainant refused to follow the principal's instructions to stop taking notes during their meeting. The Agency argues that she also would not interact constructively with supervisors or coworkers. According to the Agency, Complainant was also terminated for interfering in a confidential relationship between a student and a counselor. Additionally, the Agency states that Complainant misrepresented herself to a parent as a counselor.
ANALYSIS AND FINDINGS
Initially, we shall address several of Complainant's criticisms of the AJ's handling of this matter. Complainant contends that the AJ was biased against her and that she should have recused herself from hearing this matter. The AJ stated that Complainant misunderstood her comments and interpreted them as biased. We find that the AJ's comments did not establish that she was biased against Complainant and therefore she appropriately decided not to recuse herself. As for Complainant's challenge to the AJ excluding the Special Education Coordinator as a witness, we note that the Special Education Coordinator's involvement in this matter pertained to claim (2) and the AJ found that a hearing was not necessary for that claim due to there being no genuine issue of material fact. As we discuss below, the AJ properly found that no discrimination occurred concerning this claim and that a hearing was unnecessary. Therefore, the AJ's decision to exclude the Special Education Coordinator as a witness was appropriate. We observe that Complainant challenges the AJ's credibility determination that the counselor was a more credible witness than Complainant. Upon review of the record, we discern no persuasive evidence to establish that the AJ erred in rendering this credibility determination.
Claims (1 - 3) - Summary Judgment
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 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.
We find that the AJ's granting of partial summary judgment for the Agency was proper. We shall assume that Complainant established a prima facie case of reprisal discrimination. As for claim (1), the Agency stated that Complainant's request to take two students on a field trip to the local radio station was denied because the trip would have been a week before the students took achievement tests and it was more important for the students to practice the state tests. The Agency further stated that the few field trips that took place were for a class and not just two students. We find that the Agency articulated legitimate, nondiscriminatory reasons for its decision. Complainant argues that the principal decided not to allow the field trip because the counselor did not want to take the students. Upon consideration of Complainant's contention, we find that it is not sufficient to refute the Agency's explanation for its decision. Thus, we find that no reprisal occurred.
With respect to claim (2), the Agency states that it issued a memorandum to Complainant for leaving an IEP meeting early without parental permission. This constitutes a legitimate, nondiscriminatory reason for issuance of the memorandum. Complainant argues that she was unaware that parental permission was necessary. Upon review of the record, Complainant has not shown that memorandum was not issued to other staff members who left the IEP meetings without parental permission. Therefore, we find that no reprisal occurred.
With regard to claim (3), the Agency stated that Complainant was denied permission to attend the counselor conference because her duties are as a classroom teacher and not a counselor, and also because funding was not available for teachers to attend a counselor conference. We find that this explanation is a legitimate, nondiscriminatory reason for the Agency's decision. Complainant attempts to establish pretext by arguing that she held the position of counselor according to her contract. We note that Complainant was compensated at a counselor's rate of pay, however, she accepted the position initially of a second grade teacher and subsequently as a fifth grade teacher, and therefore her position was not as a counselor. We find that Complainant has failed to establish that the Agency's stated reasons for denying her permission to attend the counselor conference were pretext intended to mask retaliatory intent.
Claim 4 - Post Hearing
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. (November 9, 1999).
In terms of claim (4), we shall assume arguendo that Complainant set forth a prima facie case of reprisal. The Agency stated that it terminated Complainant based on three reasons. According to the Agency, Complainant displayed an insubordinate attitude when, during a meeting with the principal, she disobeyed the principal's instruction to stop taking notes. The Agency also based the termination on Complainant's interference with a student counselor relationship when Complainant questioned a student about what she discussed with a counselor. Finally, the Agency based the termination on Complainant's misrepresentation of herself to a parent as the school counselor. We find that these are legitimate, nondiscriminatory reasons for Complainant's termination.
Complainant challenges the explanation offered by the Agency by stating that she had a right to take notes during the meeting with the principal and that she did not receive a reprimand for her conduct. With regard to interfering in a student counselor relationship, Complainant disputes this by arguing that the student had been called into the counselor's office because of the way she was dressed. According to Complainant, this student was always dressed neatly and that there was no reason for the student to be referred to a counselor. Complainant states that the student was upset when she returned from the counselor's office and that she asked her what was wrong. Complainant explained that as a teacher, her first priority is the student. Additionally, Complainant argues that the AJ erroneously rejected an affidavit from the parent of this student. According to Complainant, the AJ erroneously determined that the parent had been contacted by her and that she told him to call the counselor. Complainant states that she never called this parent and that the affidavit from the parent supports her position, and that the parent stated that the counselor should have called him and informed him that she had spoken with his daughter. As for allegedly misrepresenting herself as a counselor, Complainant maintains that she told a parent that she is a counselor, but not the school counselor.
Upon review of Complainant's various contentions regarding the Agency's stated reasons for her termination, we find that Complainant has failed to establish that the Agency's explanation was pretext intended to hide retaliatory intent. Complainant does not dispute that she did not follow the principal's instruction not to take notes during their meeting. Therefore, Complainant disobeyed an instruction given to her by the individual vested with authority over her in her employment situation. With respect to Complainant's interference with the student counselor relationship, Complainant does not challenge the Agency's assertion that she questioned the student concerning what she talked about with the counselor. Therefore, there was at least to some degree interference by Complainant with the student counselor relationship. The counselor stated that as a former counselor, Complainant should have known it was unethical for her to question the student about discussions with a counselor. The matter of whether or not Complainant contacted a parent and told him to call the counselor does not negate the fact that prior to any alleged contact of the parent, Complainant acted inappropriately when she inquired of the student as to the content of her discussion with the counselor.1
With respect to Complainant telling a parent that she was a counselor at the school, Complainant's argument that she stated she was a counselor but not the school counselor, is not a viable distinction because in her position at the school, she was teacher and should have identified her role as such. The Agency determination that Complainant misrepresented her position at the school is reasonable. As the Agency maintains, it was Complainant's conduct and not her performance that caused her termination. We find that Complainant has not refuted the Agency's stated reasons for her termination.
With regard to Complainant's claim of a hostile work environment, a prima facie case of harassment is precluded based on our finding that complainant failed to establish that any of the actions taken by the agency were in reprisal for Complainant's prior protected activity. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Thus, Complainant's claim of harassment fails.
CONCLUSION
We find that the AJ properly issued a summary judgment decision in favor of the Agency with regard to claims (1-3). We find with regard to claim (4) that substantial evidence in the record supports the AJ's finding that Complainant was not retaliated against. The Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
June 20, 2012
__________________
Date
1 We observe that the counselor stated that the student's aunt informed her that Complainant had called the student's father concerning the discussion she had with the student. The counselor stated that she asked the parent to document the call in writing and provide it to the principal. The father's affidavit referenced by Complainant stated that he did not call the school and talk to the counselor regarding his daughter. He stated that he did not mention Complainant's name in this matter and that she did not encourage him to call the counselor.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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