0120130423
08-18-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense, Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120130423
Hearing No. 570201000472X
Agency No. EUFY09084
DECISION
On October 24, 2012, Complainant filed an appeal from the Agency's September 21, 2012 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. The Commission deems this appeal as 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 teacher at the Agency's Incirlik Unit School, an American school located on a U.S. military base in Turkey.
On June 30, 2009, Complainant contacted an EEO Counselor and filed a formal EEO complaint on July 27, 2009, alleging that the Agency discriminated against her on the bases of race (Caucasian), national origin (American, married to an Ethiopian national), sex (female), and reprisal for prior protected EEO activity when, on June 11, 2009, her employment with the Agency was terminated during her probationary period.
At the conclusion of the investigation into her complaint, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On September 13, 2010, the Agency submitted a motion for summary judgment, and Complainant filed her opposition to the motion on September 25, 2010. On August 31, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In reaching this decision, the AJ found the following undisputed facts.
Complainant was hired as a teacher with the Agency's Dependents Schools Europe, effective August 8, 2008, with a two-year probationary period. Her immediate supervisor was the Principal (African American male). The Principal selected her for her teaching position. At the time of Complainant was hired, she had approximately ten years of teaching experience and multiple educational degrees.
On or about September 30, 2008, Complainant traveled to Turkey to begin her employment at the school and began working sometime during October 2008. According to the record, when Complainant initially arrived in Turkey, she had some difficulty with the paperwork permitting her husband's entry onto the base. Complainant had been living in Ethiopia and her husband was an Ethiopian national. They were married only two days prior to Complainant's departure for Turkey. As a result of the recent marriage and because of other complications with Complainant's travel orders, Complainant's husband did not appear on her travel orders and was not initially authorized to stay on the base in Turkey or receive the full benefits associated with being Complainant's dependent.
On December 8, 2008, the Assistant Principal (African American female) observed Complainant's Geometry class, documented her observations and discussed them with Complainant. The Assistant Principal's notes from the observation indicate that Complainant was not in control of the classroom and many of the students were not paying attention to her lesson. On or about December 29, 2008, the Principal and the Assistant Principal received another email from a school official regarding complaints about several teachers at the school including Complainant. Specifically, the complaint states that the Complainant was "not child friendly."
The Principal observed Complainant's Geometry class on February 12, 2009, and prepared an observation sheet that was signed by Complainant. Complainant also had a performance review in February 2009 conducted by the Principal. Complainant alleges that during the February performance review, the Principal referred to her as the "Ethiopian teacher," and her husband as a "third world national."
On February 17, 2009, Complainant sought EEO counseling because of her poor performance/observation review. Complainant participated in mediation in an attempt to resolve her concerns. Pursuant to a resolution agreement reached in mediation in March 2009, Complainant and the Principal agreed to schedule times for formal observations of Complainant's class and Complainant agreed to prepare lesson plans in advance for the Principal to review.
On March 19, 2009, the Principal observed Complainant's Psychology class, made observations, discussed them with Complainant, and both he and Complainant signed the observation sheet on March 26, 2009. On March 25, 2009, the Principal observed Complainant's Biology class, made observations which he discussed with Complainant, and completed an observation sheet signed by he and Complainant on March 26, 2009.
Thereafter on April 24, 2009, Complainant was issued a Notice of Termination During Trial Period. According to the Notice, Complainant's termination was due to unsatisfactory performance. The Notice stated that Complainant was "not demonstrating mastery use of effective instructional techniques and strategies to promote successful student learning ...nor [has] [she] shown strong effective management of the classroom environment to promote positive student behavior."
Complainant's termination became effective June 11, 2009. On August 6, 2009, the Agency replaced Complainant with a Caucasian female teacher.
The AJ concluded that there were no genuine issues of material fact and found that summary judgment was appropriate.
In her summary judgment decision, the AJ determined that Complainant was terminated because of her poor performance. The AJ also found that the Agency's determination that Complainant did not master the teaching skills at the required level and did not control the classroom were legitimate and non-discriminatory reasons for her termination, which Complainant did not prove, by a preponderance of the evidence, were pretext for discrimination.
The Agency's final action implemented the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
We must 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
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 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 an 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).
After a careful review of the record, we concur with the AJ's determination that the responsible management official, the Principal, articulated a legitimate, non-discriminatory reason for Complainant's termination - her poor work performance. Among other things, the Principal stated that, based on his observations of her class, Complainant did not master the required teaching skills and did not show control or command of the classroom. The record also contains written reports of these observations. The Vice Principal, who also observed Complainant's classroom, corroborates the Principal's criticism of Complainant's work performance.
Once the Agency has articulated a legitimate, non-discriminatory reason for its actions, the burden shifts to Complainant to present evidence to demonstrate a genuine dispute as to whether these reasons were pretextual and management was actually motivated by discriminatory/retaliatory animus. While Complainant asserted she was an experienced teacher who worked successfully in other locations and had multiple educational degrees, Complainant failed to directly challenge the assertion that her performance as a teacher at the Incirlik Unit School was found to be deficient. Instead, she offers, as evidence of pretext, that she was not given sufficient time or adequate notice of the deficiencies in order to improve, that other teachers were not treated as harshly, and that the Principal had exhibited "racial bias."
With regard to the first argument - that she was not given sufficient time or adequate notice to improve - undisputed evidence of record fully supports the Principal and Vice Principal's assertions that Complainant was given notice of her perceived deficiencies in order to improve her performance. The record contains written documentation of observations that contain notes regarding the Principal's perception of Complainant's deficient performance with respect to presenting organized instruction and managing for effective learning. Moreover, as Complainant was a probationary employee, Agency written personnel policy did not require a probationary employee to be provided a set period to show improvement before termination.
With regard to the treatment of other teachers, Complainant argues that there were parent and student complaints about both male and black teachers, but these teachers were not similarly disciplined. Complainant argues that the Principal asserted when terminating her that she did not have the respect of students, but she argues that this was a "school-wide" problem, and that the Principal did not back her up when she tried to discipline students. However, beyond these assertions, Complainant provides little specific evidence to establish that she was similarly situated to these other teachers. Complainant also concedes that these other teachers were not probationary employees. Based on the facts of this case, we find this difference in status to be significant.
It is possible, as Complainant argued, that the Principal was a poor administrator. However, even if true, this would not support a finding that the decision to terminate Complainant during her probationary period was discriminatory. In reaching this conclusion, we note that the Principal had personally hired Complainant less than a year before her termination while fully aware of her race, gender and the nationality of her husband. The record also shows that when Complainant did not qualify for certain benefits (such as an overseas housing allowance) because she was living in Ethiopia at the time of her hire, the Principal advocated that she should receive the same benefits as a Stateside hire.
Finally, Complainant asserts that the Principal had exhibited "racial bias" and this needed to be explored further at a hearing. In support of her claim, Complainant asserted, and the Principal admitted, that he once referred to her as the "Ethiopian teacher." Complainant also said that the Principal referred to her husband as a "third country national." Finally, Complainant stated that the Principal once criticized her for allegedly paying attention to a white student, while ignoring a black student. Even viewing these statements in the light most favorable to Complainant, we agree with the AJ that they are not sufficient to suggest a possible nexus with the Principal's decision to terminate her employment.
In sum, Complainant has not established, before the AJ or on appeal, that there are material facts in dispute that necessitate resolution at a hearing. Furthermore, based on the preponderance of the evidence of record, Complainant has not proven that the Agency's proffered reason for her termination - namely perceived performance problems - was a pretext for unlawful discrimination.
CONCLUSION
Accordingly after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission AFFIRMS the Agency's final action adopting the AJ's conclusion that no discrimination was proven.
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
August 18, 2014
__________________
Date
2
0120130423
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130423