Anna F. Dozark, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Department of Defense Education Activity), Agency.

Equal Employment Opportunity CommissionDec 30, 2003
01a24135 (E.E.O.C. Dec. 30, 2003)

01a24135

12-30-2003

Anna F. Dozark, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Department of Defense Education Activity), Agency.


Anna F. Dozark v. Department of Defense (DODEA)

01A24135

December 30, 2003

.

Anna F. Dozark,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Department of Defense Education Activity),

Agency.

Appeal No. 01A24135

Agency No. GE-FY99-13

Hearing No. 100-A1-7091X

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 record reveals that complainant, a Business Teacher with the agency

filed a formal EEO complaint on May 11, 1999, alleging that the agency

discriminated against her on the bases of sex (female), disability

(prolapsed bladder) and age (64) when:

On January 15, 1999, the agency notified her that her position as

Business Teacher was declared excess for school year 1999-2000.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). On February 13, 2001, the agency filed a

Motion for Summary Judgment. Thereafter, on May 6, 2002, the AJ issued a

decision without a hearing, finding no discrimination. The AJ found that

complainant did not establish that more likely than not, the agency's

articulated reasons were a pretext to mask discrimination. On June 28,

2002, the agency issued a final order implementing the AJ's findings.

On appeal, complainant restates arguments previously made at the hearing

and contends that due to "sudden time constraints," the AJ rushed to

judgment in issuing his decision in this matter. In response, the agency

restates the position it took in its FAD, and requests that we affirm

its final order.

The record in this case contains the affidavit of an agency Principal at

the Ansbach Middle High School in Ansbach, Germany, where complainant was

employed. Therein, the Principal stated that each teacher is required to

teach five classes consisting of at least ten or more students for each

class; and that during pre-registration for the 1999-2000 school year,

the projected need was for complainant to teach only three classes:

15 students in keyboarding; 8 students in business laboratory; and 24

students in health. The Principal stated that the projected student

enrollment did not support complainant teaching the required five classes.

The Principal noted that if complainant could have taught physical

education classes, she would have been allowed to remain as a teacher.

The Principal further noted that complainant was not certified to teach

two other available classes (social study and computer science), and

that she did not therefore meet the five-class minimum based on the

endorsements on her teaching certificate. The Principal acknowledged

that he had no choice except to declare complainant excess for the

1999-200 school year. Finally, the Principal noted that complainant

was offered a full-time teaching position at Ansbach Elementary School,

but that she declined this position.

The record also contains an affidavit prepared by complainant. Therein,

complainant stated that she has never asked for, nor does she require,

a reasonable accommodation, and that the Principal never viewed her as

having a disability. Complainant acknowledged that she was offered a

position at Ansbach Elementary School, and that while she previously

taught elementary classes, she determined that her teaching skills in

this area were less than proficient, and declined this position.

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in Title VII and ADEA cases

alleging discrimination is a three-step process. McDonnell Douglas Corp

v. Green, 411 U.S. 792, 802-803 (1973); Loeb v. Textron, 600 F.2d 1003

(1st Cir. 1979). First, complainant must establish a prima facie case

of discrimination; i.e., that a prohibited consideration was a factor

in the adverse employment action. McDonnell Douglass, 411, U.S. at 802.

Next the agency must articulate a legitimate nondiscriminatory reason(s)

for its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). If the agency is successful, then the complainant

must prove, by a preponderance of the evidence, that the legitimate

reason(s) proffered by the agency was a pretext for discrimination.

Id. at 256.

Although the initial inquiry in a discrimination case usually focuses on

whether the complainant has established a prima facie case,<1> following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether she has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also, United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

Here, we find that the agency has articulated a legitimated

non-discriminatory reason for its action in the instant matter.

As noted by the AJ, there was a reduction in the number of students at

Ansbach Middle School; and complainant was limited in the courses she

was qualified to teach. The record further reflects that complainant had

the opportunity to teach at the Ansbach Elementary School, but that she

declined this opportunity after she determined that her teaching skills

on the elementary school level were less than proficient. Moreover,

we determine that complainant has not established that the agency's

actions were a pretext for discrimination.

After careful review of the record, it is the decision of this Commission

to AFFIRM the agency's final order implementing the AJ's finding of

no discrimination. The AJ's issuance of a decision without a hearing

and a preponderance of the record evidence does not establish that

discrimination occurred.

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

December 30, 2003

__________________

Date

1The Commission presumes for purposes of analysis only, and without so

finding, that complainant is an individual with a disability.