01a52584_r
10-06-2005
Marta Villareal, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Education Activity), Agency.
Marta Villareal v. Department of Defense
01A52584
October 6, 2005
.
Marta Villareal,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Education Activity),
Agency.
Appeal No. 01A52584
Agency No. GE-FY02-09
Hearing No. 100-2003-08011X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, a third grade teacher, at the agency's Kaiserslautern
Elementary School (KES) in Kaiserslautern, Germany, filed a formal EEO
complaint on May 22, 2002. Therein, complainant claimed that she was
subjected to a hostile work environment on the bases of race (Hispanic),
national origin (Mexican American), sex (female), color (brown),
disability (recurrent infection in both feet), age (D.O.B. 7/29/43),
and in reprisal for prior protected activity. The agency determined
that complainant's complaint was comprised of four claims, identified
in the following fashion:
(1) on March 11, 2002, complainant's second-level supervisor discontinued
complainant's lesson plan and directed a substitute teacher to administer
a lesson plan, which disrupted the continuity of complainant's teaching.
Complainant's second-level supervisor also brought an individual with
him to observe the situation;
(2) on March 12, 2002, complainant's second-level supervisor conducted
a mandatory meeting and an investigation without informing complainant
of her rights; the possibility she could receive disciplinary action;
or her right to representation;
(3) on March 18, 2002, complainant's second-level supervisor presented
complainant with a Letter of Reprimand, for unprofessional conduct in
the administration of the Terra Nova tests to her class;<1> and
(4) on April 2, 2002, complainant's second-level supervisor questioned
a student regarding complainant's classroom procedures and use of video
in the class.
On June 12, 2002, complainant requested that the instant complaint be
amended to include the additional claims that she was subjected to a
hostile work environment on the bases of race, national origin, sex,
color, disability, age, and in reprisal for filing the instant complaint
when:
(5) from April 2002 through June 2002, complainant's first and
second-level supervisors conducted investigations on four or five
occasions, and questioned complainant during scheduled class time,
which disrupted her performance;
(6) from March 22, 2002, (the date that complainant filed the instant
EEO complaint), she received a written counseling letter and verbal
counselings from complainant's first-level supervisor, regarding her
performance; and
(7) in May 2002, complainant's second-level supervisor told complainant's
first-level supervisor, a union representative, and a school counselor
that complainant had filed an EEO complaint.<2>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency thereafter filed a Motion to Dismiss or in the
alternative, an Agency Motion for Decision Without a Hearing.
In its motion, the agency requested that the AJ issue a decision without
a hearing, and that the AJ find no discrimination.
Regarding claim (1), complainant's second-level supervisor (S2)
acknowledged changing complainant's lesson plan that she had left for the
substitute, and directed the substitute to administer his lesson plan.
S2 further stated that the substitute expressed her concerns about
the substance of the lesson plans that complainant had left for her.
S2 stated that the lesson plan had no relationship to standards or to
the curriculum. S2 stated that he contacted other third grade teachers
for assistance, and that they gave him assignments for the substitute.
S2 stated that the substitute gave him a copy of a �thank you� note from
complainant and a memorandum for the record concerning complainant's
lesson plan. S2 stated that in complainant's �thank you� note to
the substitute, complainant thanked the substitute for introducing
mathematics words and a health lesson on the food pyramid to her class;
and that she appreciated the substitute's concerns and the lesson plan
substitution. S2 stated that two other substitutes wrote memoranda for
the record stating concerns about the lack of information in complainant's
lesson plans. With respect to complainant's claim that her second-level
supervisor brought an individual with him to observe her classroom,
S2 stated "I do not recall that this allegation took place."
Regarding claim (2), S2 stated that March 11, 2002 was an important day
because of the Terra Nova practice of standardized testing. S2 further
stated that on the day of the standardized testing, he found out
that complainant had locked her door and changed her testing schedule
without notifying the proctor. Specifically, S2 stated that he went
to complainant's classroom "to take a survey from DoDDS personnel that
needed to be completed that morning." S2 stated that approximately 9:25
a.m., he discovered that complainant's door was locked, and decided to
talk to complainant because he did not want to disrupt the standardized
testing being conducted in her classroom. S2 stated that the purpose
of the mandatory meeting on March 12, 2002, was to ask complainant why
she locked her door and changed the testing schedule. S2 stated that
he informed complainant of her right to representation, and that she
asked for her representative but that her representative was busy with
the testing. S2 stated that a Faculty Spokesperson Representative was
complainant's representative "as per the union-management contract."
S2 stated that complainant stated "I goofed. I would hate for the
school to suffer." S2 stated that complainant apologized for the March
11, 2002 incident, and stated that she would make sure that it does not
happen again. Furthermore, S2 stated that on March 11, 2002, he sent
complainant an email regarding the testing situation, and noting that
it could result in disciplinary action.
Regarding claim (3), the record reflects that S2 issued complainant a
Letter of Reprimand for unprofessional conduct in the administration of
the Terra Nova tests to her class.
Regarding claim (4), S2 stated that a parent called him regarding a
movie shown in complainant's class and allegedly brought by a student.
S2 further stated that the parent felt that the movie was objectionable,
and was not � G rated.� S2 stated that he questioned a student if he
brought the movie to school, and that the student acknowledged that he
had done so. S2 stated that complainant had allowed the movie to be
shown at a "rainy day recess." S2 stated that he reminded complainant
that "only �G' rated movies are to be shown at KES and that parental
permission was necessary for a PG movie to be viewed." S2 stated that
there were "numerous occasions" when he discussed classroom procedures
with students and staff. Furthermore, S2 stated that complainant's race,
national origin, sex, color, disability, age, and prior EEO activity
were not factors in his determination to question a student concerning
complainant's classroom procedures and use of video in the class.
Regarding claim (5), the S2 stated he frequently investigates incidents.
S2 stated that whenever he receives a message or a discipline referral
on a student, he would go to the classroom to "call the student(s) out
in the hall, investigate and work to resolve the issue(s)." S2 stated
that in over four years working as a Principal, he has never received a
complaint from a teacher, the union, or a substitute about his presence
in classrooms or work areas.
Further, S2 stated that he was only aware of two incidents involving
complainant between April 2002 and June 2002. S2 stated that the
first incident involved the propriety of a movie shown to students.
Regarding the second incident, S2 stated that subsequent to a parent
conference on April 24, 2002, complainant met "with the commanding
officer of the parent, and provided a report card, a unit-reading test,
and a reading profile without the parent's permission." S2 stated
that on April 25, 2002, he met with complainant, her representative,
the union representative and complainant's first-level supervisor
(S1) "to investigate what took place and to understand [complainant's]
version of the events." S2 stated that during the April 25, 2002 meeting,
complainant admitted "to what took place." S2 stated that complainant
's actions were in violation of the Privacy Act which resulted in a
3-day suspension.
Further, the record reflects that S1 stated that while S2 made "drop-in"
observations on April 4 and 22, 2002, he made a "drop-in" observation
on April 15, 2002. S1 further stated that the drop-in observations
"are an integral part of the evaluation process at our school."
S1 stated that students do not react to his presence in any way that is
"unusual," and that the teachers continue their teaching performance.
S1 stated that investigations are common, and that the administration
has a responsibility to follow up on claims made by students, parents
or professional peers. S1 further stated that on April 18, 2002, he
met with a parent who was concerned about a parent/teacher conference
with complainant. S1 stated that on April 25, 2002, he, S2, the
union representative, and the school counselor met with complainant
to discuss the parent's concern about violation of privacy. S1 stated
that during the meeting, S2 explained to complainant that there would
be disciplinary action to be addressed because of the violation of the
Privacy Act. Furthermore, S1 stated that on May 17, 2002, he and S2 met
with complainant to review the letter of proposed suspension concerning
the Privacy Act incident on April 24, 2002, discussed above.
Regarding claim (6), the agency argued that complainant failed to
establish a prima facie case of race, national origin, sex, color,
disability and age discrimination because she did not show similarly
situated employees outside her protected classes were treated differently
under similar circumstances. As to complainant's reprisal claim, the
agency further disputes that complainant established a prima facie case
of reprisal discrimination. The agency further argued that while it was
undisputed that complainant's first-level supervisor first learned of
complainant's prior EEO activity before April 5, 2002, he initiated the
letter of counseling with the Agency Management and Employee Relations
(MER) staff on March 26, 2002. The agency argued that because the MER did
not complete the letter of counseling until May 13, 2002, complainant's
first-level supervisor did not retaliate against complainant in claim (6).
Furthermore, the agency argued that assuming complainant established
a prima facie case of reprisal discrimination, management nonetheless
articulated legitimate, nondiscriminatory reasons for its actions which
complainant failed to show were pretext for discrimination.
The record reflects that S1 stated that on May 13, 2002, he issued
complainant a letter of counseling. S1 stated that the letter "was
intended to correct patterns of un-cooperative behavior adversely
affecting the learning of students requiring special services." S1 stated
that the letter also addressed complainant's poor working relations
and communication with other staff members. S1 stated that the issues
outlined in the May 13, 2002 letter were first discussed with complainant
in November 2000. S1 stated that his determination to issue complainant
a letter of counseling was not motivated by complainant's race, national
origin, sex, color, disability, age or prior EEO activity.
Regarding claim (7), the agency argued that complainant failed to offer
any evidence that she was in any way disadvantaged with a disclosure.
The record reflects that S2 stated "at no time do I recollect that I
specifically mentioned or discussed her EEO complaint at the May 13,
2002 meeting." S2 further stated that the purpose of the May 13, 2002
meeting was to give complainant a letter of counseling concerning her
pattern of inappropriate behavior and poor judgment. S2 stated that
while complainant was there with two representatives, he offered to
bring in a third party to mediate. S2 stated that complainant declined
his request. S2 stated "I do not consider offering dispute resolution
to be a discussion of her informal EEO complaint."
Further, the record reflects that S1 stated that he recalled a meeting
with S2, the union representative and complainant's representative on
May 13, 2002 concerning complainant's letter of counseling. S1 further
stated "I do recall discussing dispute mediation and [S2] did offer the
services of [agency official] as a mediation facilitator." Furthermore,
the record reflects that the union representation stated that she does
not recall S2 making a statement during the May 13, 2002 meeting that
complainant filed a formal complaint.
On January 11, 2005, the AJ issued a decision without a hearing,
finding no discrimination. The AJ determined that the agency properly
set forth the undisputed facts and applicable law in its "Agency's
Motion for Decision Without Hearing" incorporated the Motion in his
decision, and found no discrimination. The AJ further determined that
complainant failed to produce evidence establishing any genuine issues
of material fact sufficient that the agency's articulated reasons for
its actions were a pretext for discriminatory animus. In addition, the
AJ found that complainant failed to establish that she was subjected to
harassment. Specifically, the AJ found that the alleged harassment was
not sufficiently severe or pervasive to create a hostile environment.
On January 25, 2005, the agency issued a final order implementing the
AJ's decision finding no discrimination.
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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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. See 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. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
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. See St. Mary's Honor Center 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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its actions as discussed above. Complainant
has not shown that the agency's articulated reasons were a pretext for
discrimination.
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 6, 2005
__________________
Date
1The record reflects that the Terra Nova is
a system-wide, standardized testing program for grades 3-11; and that
the scores are used for a mandatory report to the United States Congress.
2For ease of reference, the Commission has numbered complainant's claims
as claims (1) - (7).