Teacher suing district lost previous complaint

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Education > Attorneys differ on whether finding would have an effect on pending litigation

By John Severance and Tris DeRoma

A judgment made earlier this year by the New Mexico Human Rights Division of the State of New Mexico Department of Workforce Solutions could affect the outcome of a pending lawsuit filed against the Los Alamos Public School District by a school employee.

The lawsuit, filed in U.S. District Court by Mountain Elementary teacher Zeynep Unal, alleges she was forced out of her teaching position at Aspen Elementary through the use of trumped up disciplinary actions allegedly used to intimidate, harass and discriminate against her.

“Defendants unlawfully discriminated against the plaintiff through their repeated and continued harassment of her,” a statement in the lawsuit read. “The repeated and continuous harassment included unfounded disciplinary actions, an attempted improper termination and other adverse actions and unequal terms and conditions of employment.

The Defendants engaged in this repeated and continuous harassment because of the plaintiff’s national origin in violation of her rights under federal and state law.”

Unal is from Turkey. The lawsuit was filed April 18. Besides the Los Alamos School District, Unal also named Superintendent of Schools Dr. Gene Schmidt and Aspen Elementary School principal Kathryn Vandenkieboom as defendants.

According to Unal’s attorney, Kate Ferlic, none of the parties in the suit have been formerly served yet.
Schmidt said he could not comment on the EEOC complaint because of pending litigation.

Before filing the lawsuit in District Court, Unal filed a complaint with the New Mexico Human Rights Bureau and the Equal Employment Opportunity Commission.

In January of this year, the bureau returned a “Determination of No Probable Cause” in Unal’s complaint.

“After considering all the evidence submitted by parties to the Bureau, I find the evidence insufficient to show that the Respondent unlawfully discriminated against you on the basis of National Origin or Retaliation,” according to the EEOC determination letter obtained by the Los Alamos Monitor.

The letter, written by Barbara Rusden, the State and Local Coordinator of the EEOC Phoenix District Office, went on to say, “Therefore, I have determined that no probable cause exists to believe that discrimination occurred and I am hereby dismissing with prejudice the above referenced complaint.”

Ferlic said she was expecting as much.

“I am not at all surprised at the EEOC’s decision,” she said. “This will not impact anything in the district court.”

Ferlic also noted no one from the commission interviewed any of Unal’s witnesses, nor Unal herself. And though

Ferlic said she couldn’t go into detail at the moment, she also said the commission’s findings contained “blatant contradictions.”

Kevin Brown, the attorney representing LAPS, disagreed.

Even though he said a lawsuit can still be filed if the EEOC and the HRD rules in favor of the defendants, the courts tend to follow the decisions of the EEOC and the HRD.

“We expect the courts will do the same thing,” Brown said. “Since HRD found ‘no cause’ and the EEOC adopted the findings too, that’s kind of what we expect to happen. The agencies looked at the facts, so we anticipate the courts will look at the findings in the same way.”

Some of the other points brought up in the determination letter include:

• “In your rebuttal you state that from the time Ms. Vandenkieboom became principal you felt you were targeted but you have provided no evidence to substantiate this allegation and you only complained after you received the Letters of Direction.”
• “You further state you did not receive assistance during the time you had a class overload and that other teachers were provided assistance almost immediately upon request but you have provided no evidence to support this claim.”
• “You state you were denied re-employment for the 2011-2012 school year but you also state you were unable to return to Aspen for the 2011-2012 school year at the direction of your doctor. If you were unable to work, the Respondent was not obligated to return you to work.”
• “You state the Intent to Rehire letter was not mailed by the Respondent until May 16, 2012, which you indicate is shown by the postmark on the envelope; however, there is no postmark visible on the copy of the envelope you provided.”
• “You state you were retaliated against by being denied re-employment with the Respondent at another school; however you are currently employed by the Respondent at another elementary school.”
• “While it appears there were some issues between you and Ms. Vandenkieboom and your disagreement of the way she was supervising you, you have failed to prove that this was due to discrimination against you because of your National Origin.”
• “You provided a copy of your evaluation done by Ms. Vandenkieboom on April 7, 2011. The evaluation is favorable and indicates you met competencies and it would seem that if Ms. Vandenkieboom held discriminatory animus towards you, she would not prepare a favorable evaluation for you.”