Laura S.,1 Complainant,v.Dr. Mark T. Esper, Acting Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

0120181364 (E.E.O.C. Sep. 11, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Laura S.,1
Complainant,

v.

Dr. Mark T. Esper,
Acting Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120181364

Hearing No. 570-2016-00289X

Agency No. EU-FY15-025

DECISION

On February 21, 2018, Complainant prematurely filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency issued its final order on March 20,
2018. Although the appeal was initially premature at the time of the filing, the Commission finds
that it is currently ripe for review.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Guidance Counselor,
TP-16, at the Stuttgart High School (Formerly Patch High School), located in Bavaria District in
Germany. On February 10, 2015, Complainant filed an EEO complaint in which she alleged that
the Agency discriminated against her and subjected her to a hostile work environment on the bases
of sex (female), age (56), and in reprisal for prior protected EEO activity (giving deposition on
October 16, 2014, in a coworker’s EEO complaint).

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Complainant identified the School Principal (P) and the Assistant Principal (AP) as the responsible
management officials and alleged the following incidents, which we have arranged in
chronological order:

1. Beginning with the 2012-2013 school year, P and AP met Complainant’s attempts at
seeking clarification about the school’s “Red Card Program” with open hostility;

2. Beginning with the 2012-2013 school year, P and AP repeatedly harassed and
harangued Complainant, yelling at her and referring to her as “the problem;”

3. On October 17, 2013, P denied Complainant’s transfer to Lakenheath High School after
the selection and receipt of official notification that she had been selected;

4. On unspecified dates throughout the academic year 2014-2015, P and AP verbally
attacked Complainant in personal terms when she questioned non-adherence to the
Agency’s school attendance policy;

5. On September 9, 2014, P attempted to influence Complainant’s testimony at the
October 16, 2014 deposition in the EEO complaint of her coworker, and on the day of
the deposition questioned her professionalism and integrity;

6. On October 1 and October 15, 2014, during meetings with P and AP regarding the
status of implementing the Agency’s attendance policy, P and AP acted in a hostile and
aggressive manner toward Complainant, refusing to answer her questions; and

7. On October 16, 2014, P wrote a note on Complainant’s leave slip directing her to return
to work immediately following the deposition.

The Agency investigated the complaint and produced its initial investigative report (IR) on
September 8, 2015. Following the submission of the initial IR, the Agency’s Investigator took
affidavits from four witnesses whose testimony Complainant had requested. On October 23, 2015,
the Investigator submitted a supplemental investigative report (SIR). At the conclusion of the
investigative process, the Agency provided Complainant with a copy of the IR and the SIR, along
with notice of her right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). Complainant timely requested a hearing. On September 14, 2017,
over Complainant's objections, the AJ assigned to the case granted the Agency’s July 5, 2017,
motion for summary judgment on all of the incidents comprising her complaint except incident
(5). On November 16, 2017, the AJ held a hearing on incident (5), and on February 28, 2018,
issued a combined decision on all seven incidents. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination or reprisal as alleged.

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Grievance dated October 21, 2013: Complainant filed a grievance as a result of an interaction
between her and AP that took place at a Student Support Team (SST) meeting that was held on
October 18, 2013. Complainant alleged in the grievance that when she tried to make a comment,
the AP responded in a manner that she described as aggressive and bullying. As relief,
Complainant asked that the AP issue a public apology via email, that P provide her with written
assurances that the AP would be reprimanded if a similar incident occurred in the future, and that
Complainant be given appropriate monetary reimbursement. On October 28, 2013, P denied the
grievance at step (2). The grievance made no references to Complainant’s EEO protected status
or raised any issues involving employment discrimination. IR 256-60.

Incident (1): Complainant described the “Red Card” Program as a policy to eliminate failing
grades by pressuring teachers into giving passing grades and altering student transcripts. She
stated that the full impact of the Red Card Program included a lack of recordkeeping, a general
disorganization in terms of accountability, and no plan for how the grade and credit changes were
going to impact the integrity of the affected students’ transcripts. Complainant claimed that after
three years of the program, numerous transcript issues remained unresolved and attempts from her
and other counselors were met with open hostility. IR 15, 18, 40, 52, 215, 334. Complainant
averred that on September 5, 2012, she and three other Guidance Counselors presented a letter to
P expressing their concerns with the Red Card Program, and that rather than take their concerns
seriously, P and AP began intimidating, harassing and bullying them in an effort to silence their
protests. IR 215. P averred that Complainant’s allegation was not true, pointing out that the Red
Card Program was developed by the SST during the 2011-2012 school year, and that Complainant
was a part of those discussions. IR 222. AP also denied Complainant’s allegation. He averred
that the Red Card process was continually evolving in no small part due to Complainant’s
contributions. IR 280.

Incident (2): Complainant averred that on unspecified dates that began with the 2012-2013 school
year, P and AP repeatedly harassed and harangued Complainant. She averred that they would yell
at her, mock her, ridicule her, second-guess her, and refer to her as “the problem. When asked to
elaborate, she replied that her interactions with P and AP as well as her observation of their
interactions with her colleagues supported her assessment that, as a “mature woman”, they
expected her not to question their administrative policies, procedures, or directives. IR 213, 216.
P denied that this was true. He responded that he asked for Complainant’s input at every meeting,
that he always worked well with Complainant and respected her knowledge and willingness to
share ideas. IR 222. AP admitted that on one occasion he had raised his voice to Complainant but
stated that he had since apologized to Complainant and had been extremely careful from that
moment forward not to speak loudly toward her or in her presence. IR 280.

Incident (3): Complainant averred that she had been selected for a full-time teacher/guidance
counselor position at Lakenheath High School in the United Kingdom and had been notified
officially that she was to be transferred, but that on October 17, 2013, she had received notification
that the transfer had been revoked. IR 214-15. According to P and AP, the offer was rescinded
because there was no backfill to replace her vacant position with. IR 222, 279.
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An email from a Human Resources Officer to Complainant dated October 18, 2013 stated that the
offer was an administrative error and should not have been extended to her because there was no
backfill for her current position. IR 249-51.

Incident (4): Complainant averred that during the 2014-2015 school year, P and AP personally
attacked her verbally for questioning what she characterized as non-adherence to the Agency’s
policy regarding school attendance. She averred that during one meeting, AP intentionally used
physically aggressive body language, bullying techniques, mockery and intimidation, and that P
refused to intervene in the matter when she asked him to do so. IR 211. AP denied that he attacked
Complainant in any way. He averred that Complainant had asked for the meeting and that she just
started “blasting away” at him in a “very unkind and unfriendly fashion.” He further averred that
Complainant made several unsubstantiated accusations and had refused to listen to the facts that
he, AP, had provided. IR 278. P, who was also present at the meeting, averred that at the meeting,
Complainant had asked questions about the school administration’s adherence to the Agency’s
attendance policy, and that throughout the exchange with Complainant, he informed her that her
questions were inappropriate because they were questions that his supervisor would be asking of
him. He stated that throughout the conversation, neither he nor AP raised their voices to
Complainant or spoke disrespectfully toward her. IR 221.

Incident (5): Complainant averred that on September 9, 2014, P attempted to influence
Complainant’s testimony at a deposition scheduled for October 16, 2014, in connection with an
EEO complaint filed against P and AP by the Union President, a colleague of hers. Hearing
Transcript (HT) 206. She averred that on September 9, P alerted her to the fact that she was going
to be testifying in the October deposition. She also averred that on the day of the deposition and
numerous other occasions, P made unprofessional comments about her, questioning her
professionalism, integrity, work ethic, and character. IR 212; HT 52, 56-57, 92-97. P denied that
he ever attempted to influence Complainant’s testimony at the deposition. He and AP, who was
in P’s office at the time, averred that he was merely asked by the Labor Management Employee
Relations Office to inform Complainant of her obligation to testify, and that he advised her to be
honest because he, P, did not feel that he had anything to hide. IR 221, 278-79; HT 189, 199-200;
P’s Deposition dated May 24, 2016, p. 10.

Incident (6): Complainant averred that on October 1, 2014, and again on October 15, 2014, during
meetings with P and AP regarding the Agency’s attendance policy, P and AP acted in a hostile and
aggressive manner towards her, and in particular, refused to answer her questions. When asked
what those acts by P and AP were, Complainant responded that AP continued to bully, mock, and
intimidate her whenever she raised questions about administrative policy. IR 213. Both P and AP
responded that they had no idea what Complainant was talking about. IR 221, 279.

Incident (7): Complainant averred that on October 16, 2014, the date of her deposition appearance,
P wrote an unprofessional comment on her leave request. P had written a note that stated, “you
must return to work immediately following your meeting. When asked what made the comment
unprofessional, Complainant replied that the comment presupposed misuse of leave or other
unprofessional conduct on her part. IR 213.
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P responded that he was instructed by the Agency’s Office of Legal Counsel that once a deposition
is completed, the staff member giving the deposition must immediately return to work, and that
this comment was on the approved leave slips for all of the individuals who participated in the
deposition. IR 222. The AP averred that the directive did not strike him as being unprofessional.
IR 279.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected classes; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so
objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove her harassment claim,
Complainant must establish that she was subjected to conduct that was either so severe or so
pervasive that a “reasonable person” in Complainant's position would have found the conduct to
be hostile or abusive. Complainant must also prove that the conduct was taken because of her
protected classes. Only if Complainant establishes both of those elements, hostility and motive,
will the question of Agency liability present itself.

Incident (5) – 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. Nat’l. Labor Rels. Bd., 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.
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See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), Chapter 9, at § VI.B. (Aug. 5, 2015). Here, the AJ found that while both Complainant and
P were both credible witnesses, she was ultimately not persuaded that P’s conduct was reasonably
likely to deter an individual from engaging in protected activity. P did not prohibit Complainant
from participating in the coworker’s EEO complaint, nor did he tell her what or what not to say
during the deposition. Both testified that Complainant was “nervous” or “confused” during the
interaction, but P testified that he only intended to inform Complainant about the deposition and
attempted to “set her mind at ease.” The AJ further found that P’s instruction to simply “tell the
truth” and his acknowledgment to her that he did not know if she was required to participate, were
reasonable and appropriate responses to someone who appeared ill at ease at the prospect of being
deposed. Consequently, the AJ concluded that Complainant’s reprisal claim could not be
sustained.

Complainant has not presented documentary or testimonial evidence sufficient for us to second-
guess the AJ’s credibility determinations. Likewise, she has not presented evidence to establish
that P or AP were motivated by consideration of Complainant’s sex and age in connection with
her deposition testimony. We therefore find that Complainant has failed to prove the existence of
a discriminatory or retaliatory motive on the part of P or AP with respect to incident (5).

Incidents (1)-(4), (6) & (7) – Summary Judgment

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.

Here, Complainant asserted that based on her protected classes, management officials subjected
her to a hostile work environment. Complainant alleged several incidents of what she believed to
be discriminatory and retaliatory harassment on the part of P and AP. As to her reprisal claim, we
find that Complainant’s EEO activity consisted of her participation in the deposition and her
subsequent filing of her own EEO complaint. With the exception of the note at issue in incident
(7), these protected EEO activities did not occur until after incidents (1) through (4) and (6) had
taken place. The grievance that occurred in October 2013 was not EEO-related and Complainant
did not raise any discrimination claims or opposition to any discrimination. As a result, this
grievance cannot form the basis of a retaliatory harassment claim.
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As to the incidents themselves, even if the alleged conduct was sufficiently severe or pervasive to
create a hostile work environment, there is no persuasive evidence in the record that discriminatory
or retaliatory animus played a role in any of the Agency's actions. The record reflects that the
alleged incidents were more likely the result of routine supervision, managerial discipline, and
general workplace disputes and tribulations. For example, incidents (1), (2), (4), and (6) all
describe situations in which there were serious disputes between P and AP on one side and the
faculty and counseling staff on the other regarding school policies like attendance and grading. As
to incident (3), the email from the Human Resources Officer clearly established that the granting
of her transfer to Lakenheath High School had been an administrative error and that she had to
remain at Patch High School because there was no one available to backfill her position. As to
incident (7), P was merely following instructions from Agency Counsel to direct deponents to
return to work immediately after giving their depositions.

In order to justify a reversal of the AJ’s decision to grant summary judgment, Complainant would
have to present evidence sufficient to raise a genuine issue of material fact as to the existence of
an unlawful motive on the part of P or AP in connection with any of the six incidents comprising
the claim upon which summary judgment was granted. Indicators of discriminatory intent include
discriminatory statements or past personal treatment attributable to those responsible for the
personnel action that led to the filing of the complaint, comparative or statistical data revealing
differences in treatment across various protected-group lines, unequal application of Agency
policy, deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal
No. 0120141697 (Nov. 12, 2015).

When asked by the EEO investigator why she believed that P and AP harbored considerations of
her sex and age in connection with their interactions with her, Complainant replied that P and AP
were of the opinion that as a “mature woman”, she was not to question their administrative policies,
procedures, or directives. IR 212-16; Hearing Exhibit 1. In addition to her own, she also presented
the affidavits of three fellow Guidance Counselors and the Guidance Secretary. IR 216-17. One
of the counselors averred that she had no knowledge of any of the incidents. SIR 6-7. The other
two counselors averred that P and AP had often raised their voices at meetings and made the work
environment difficult for everyone. SIR 11-14. The Secretary also attested to the fact that the
work environment at Patch High School was not a good one, adding that many employees felt as
if P and AP were putting them under a microscope while other employees could do no wrong no
matter how many mistakes they made. SIR 19, 26. While the statements from these witnesses
may demonstrate employees’ dissatisfaction with P and AP’s managerial styles and less than ideal
working conditions, they do not establish the existence of at least one of the indicators of
discriminatory intent listed above, contradict or undercut the explanations provided by P and AP
for the six incidents, or cause us to question the veracity of P and AP in ways that would raise a
genuine issue of material fact as to whether they were motivated by unlawful considerations of
Complainant’s age or sex.

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The Commission therefore concludes, based upon the totality of the circumstances, that
Complainant has not presented evidence sufficient to raise a genuine issue of material fact as to
whether she was subjected to a hostile work environment because of her sex, age, or previous EEO
activity, as alleged. Moreover, to the extent Complainant claims that she was subjected to disparate
treatment, the Commission finds that, as discussed above, Complainant has not demonstrated that
the Agency's explanation for its actions was pretext for discrimination or reprisal. Ultimately, we
conclude that the AJ’s decision to grant summary judgment with respect to incidents (1) through
(4), (6) and (7) was proper as Complainant has not demonstrated that she was subjected to
discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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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 Complainant’s 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 11, 2019
Date