0120132711
09-03-2015
Complainant, v. Ashton B. Carter, 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
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120132711
Agency No. PE-FY12-128
DECISION
On July 12, 2013, Complainant filed an appeal from the Agency's June 13, 2013, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mathematics Teacher at the Agency's Yokosuka Middle School (YMS) facility in Japan District.
On September 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and disability (diabetes mellitus)1 when, from October 19, 2011 to present, the Agency failed to stop the harassing behavior directed toward Complainant by a co-worker and fellow teacher (Teacher) at YMS.
During the 2011-2012 school year, Complainant and the Teacher were both members of the Shiloh Team for the 7th grade. Although neither was the Team Leader, Complainant alleged that he would meet with other team members outside the regularly scheduled team meetings to discuss matters of importance and exclude her. However, she provided no examples of decisions made by the team in her absence.
Complainant also alleged that, on October 19, 2011, the Teacher sent her an email accusing her of incompetence during a dispute over how to handle a disciplinary issue involving a student. Complainant stated that the Teacher, from October 2011 to April 2012, continued to interrupt her during her planning and lunch period to "test her competency" by quizzing her on various topics. Complainant said that when she went to his room to ask him to stop, he laughed and screamed at her to leave. Complainant, who had diabetes, alleged that the Teacher's visits to her classroom stressed her out so much that her blood glucose would drop.
Complainant asserted that she informed the the Assistant Principal about the October 2011 incidents, and was told to just stay out of the Teacher's path and to stay professional. On February 21, 2012, Complainant sent an email to the Principal in which she informed him that she "had a conflict with [the Teacher] about how students should behave in classes." Sometime in the spring of 2012, the Principal asked Complainant if she would like to move to a different team. On June 22, 2012, Complainant sent the Principal an email rejecting his offer to move her to a different team because she wanted to remain in the 7th grade. Complainant further stated, "I will take the chance encounter of [the Teacher] in my hall . . . I am not going to let [him] get to me. If he harasses me, I will go through the proper channels to get it stopped.
From April 2012 to the end of the school year, the Teacher was suspended and assigned to an alternate worksite as a result of an unrelated incident involving the Principal. Therefore, with the summer break, Complainant did not have any contact with him until the school year resumed on August 22, 2012. Once the Teacher returned to YMS, Complainant said that she feared his harassing behavior would start again and started locking her classroom door, making it difficult for her students to seek her help. However, she did not indicate that any other incident occurred after April 2012.
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, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision 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. � 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").
It is well-settled that harassment based on an individual's disability and sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she belongs to the statutorily protected classes and/or is a qualified individual with a disability covered under the Rehabilitation Act; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her disability and/or sex; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that Complainant has not established that the actions of the Teacher occurred because of her protected bases. There is absolutely no evidence to connect the Teacher's behavior to Complainant's diabetes. With regard to Complainant's sex discrimination claim, the record shows that the Teacher acted in an unprofessional manner to females like Complainant, as well as males including the Principal. In sum, there is simply no evidence, beyond Complainant's supposition, that the Teacher's behavior was motivated by her disability or gender.
Moreover, there is little evidence to impute liability to the Agency for the Teacher's actions. While Complainant told management about the Teacher's rudeness, his interrupting her during her planning and lunch periods, his attempts to exclude her from team meetings, and his criticism of her dealing with students, there is little evidence that she communicated that she believed this was because of her disability or gender. She was told she could switch teams to avoid contact with the Teacher, but declined. Moreover, she had no contact with the Teacher from April through August 2012, and has not alleged any further incidents of harassing behavior have occurred since his return. While Complainant states she fears future harassment, this speculation does not support a finding of current discrimination.
Under the facts as presented in this case, we conclude that Complainant has not established her claim of discrimination based on sex and/or disability.
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 finding no discriminatory harassment has been proven.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 Complainants 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
September 3, 2015
__________________
Date
1 To the extent Complainant may have also raised a claim of unlawful retaliation, the Agency dismissed the claim stating there was no evidence of prior protected activity. On appeal, Complainant has not contested this partial dismissal and so we will not address it further in this decision.
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