Hyo L.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120171046 (E.E.O.C. Oct. 18, 2018)

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

Hyo L.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Office of the Comptroller of the Currency),
Agency.

Appeal No. 0120171046

Agency No. OCC-16-0499-F

DECISION

On January 31, 2017, Complainant 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
January 26, 2017, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision (FAD) which found that Complainant did not demonstrate that she
was subjected to discrimination as alleged.

ISSUE PRESENTED

The issue presented is whether the Agency’s FAD erred in finding that Complainant’s termination
was not due to discrimination or that she was not subjected to a hostile work environment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a probationary Assistant
National Bank Examiner (ANBE), at the Agency’s Office of the Comptroller of the Currency
facility in Longview, Texas. Complainant maintained that the Training Team Leader (TTL), made
comments about her skin color, her nationality, and her possibly dating and having a biracial child

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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with a coworker. Specifically, Complainant maintained that the TTL made derogatory statements
including that Complainant did not look like she was from Miami but looked like she was from
Africa due to her dark skin tone. Also, the TTL and the trainees poked fun at Complainant during
the training sessions, and the TTL suggested that Complainant should have a baby with another
white male (trainee) so that they could make beautiful babies. The TTL also stated that men do not
like “dark chocolate” women.

Complainant maintained that she was subjected to reprisal, harassment, and ultimately removed
based on her protected bases. Complainant was removed four months after the start of her
employment. The Agency maintained that she was removed because of her poor work
performance. Specifically, the Agency maintained that Complainant was unable to follow
directions, unreliable in finishing assignments, disregarded advice, and lacked the interpersonal
and organizational skills necessary to be a successful ANBE.

On June 24, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of national origin (Caribbean), sex (female), color (dark complexion), and
reprisal for prior protected EEO activity when:

1. Beginning on January 24, 2016, and continuing through her termination on May
24, 2016, the Agency subjected her to a hostile work environment, including but
not limited to comments made by the TTL regarding her appearance, skin color,
sex, and national origin, and other comments suggesting Complainant engage in
sexual activity with a male trainee; false accusations regarding work performed;
and exclusion from lunch invitations; and

2. On May 24, 2016, she was terminated during her probationary period.

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. In accordance with Complainant’s request, 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 Agency maintained that Complainant did not establish her reprisal claim because the TTL was
not aware of any prior EEO activity. Notwithstanding, the Agency indicated that assuming,
arguendo, Complainant established a prima facie case of discrimination as to all her bases, the
Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that the record
showed that Complainant had been given feedback, support, examples and suggestions for
improvement via Assignment Evaluations Forms dated March 3, April 14, and May 19, 2016. This
was in addition to a performance counseling on March 10, 2016. The Agency maintained that
Complainant did not improve. Management noted additional examples of Complainant work
behavior, which included sleeping during training, and talking to a banker alone, when she and her
training class had specifically been instructed not to do so. On May 20, 2016, Complainant was
issued a Notice of Termination.
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Further, the Agency noted that witness testimony did not support Complainant’s contentions.
Witnesses indicated that Complainant was always invited to join conversations, there was no
mention of her skin color, and no one ever heard the TTL say that men did not like “dark
chocolate.” Also, the comments about the biracial child were related to the TTL and not
Complainant. The TTL acknowledged that she asked Complainant about her national origin
because Complainant, like the TTL, had an accent. The Agency found that Complainant did not
demonstrate that the Agency’s articulated reasons were pretext for discrimination or that
discriminatory animus was involved in her termination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that she was subjected to severe and
pervasive treatment on a daily basis with hurtful/unwelcome comments regarding her skin tone,
accent, and national origin. Complainant also contends that the TTL was aware that she had
reported disparate treatment to Human Resources, her second-line supervisor and Union
Representative. Complainant maintains that the TTL retaliated against her after she discovered
that she spoke to her second-line supervisor. As additional proof of retaliation, Complainant
contends that she was terminated two days after her Union Representative submitted her request
for a transfer. Moreover, she maintains that her poor ratings were due to the TTL giving her
incorrect information. Finally, Complainant maintains that the witnesses did not support her, and
indicated that they did not recall events, because they still worked in the unit.

In response, the Agency contends, among other things, that concerning Complainant’s allegations
of a hostile work environment/harassment, the FAD correctly noted that Complainant failed to
present any persuasive evidence to support her claims and therefore she did not prove that the
alleged harassing incidents occurred or that she was subjected to any unwelcome conduct based
on her protected bases.

Regarding Complainant’s termination, the Agency found that its FAD correctly found that the
weight of the record evidence supported the conclusion that the Agency terminated Complainant
during her probationary period due to poor performance. The Agency found that Complainant did
not establish any defect in the disparate treatment analysis contained in the FAD. Therefore, the
Agency requests that its FAD be affirmed.

ANALYSIS AND FINDINGS
Standard of Review

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
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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”).

Disparate Treatment - Termination

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume that Complainant established a prima
facie case of discrimination as to all her protected bases, we find that the Agency articulated a
legitimate nondiscriminatory reason for Complainant’s termination during her probationary
period, i.e., Complainant was terminated during her probationary period due to poor work
performance. The Agency provided numerous examples of Complainant failing to follow
instructions and to complete assignments. Witnesses recalled Complainant sleeping through
training and listening to headphones during a bank exam despite being counseled on numerous
occasions not to do so. Complainant was also instructed to not speak with the banking staff alone,
yet she did so anyway. As a result, of Complainant’s poor work habits, management decided to
terminate her.2 We find that Complainant did not demonstrate that the Agency’s reasons were
pretext for discrimination.

Harassment

Harassment of an employee that would not occur but for the employee’s race, color, sex, or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv.,
EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar.
8, 1994). In determining that a working environment is hostile, factors to consider are the
frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening
or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII’s purview.” Harris, 510 U.S. at 22 (1993).

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) that 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 class; (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

2 Where a complainant is a probationary employee, we have long held that he or she is subject to
retention, advancement, or termination at the discretion of an agency so long as these decisions
are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895
(Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).

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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).

With respect to element (5), an employer is subject to vicarious liability for harassment when it is
created by a supervisor with immediate (or successively higher) authority over the employee. See
Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City
of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment
does not result in a tangible employment action the agency can raise an affirmative defense, which
is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised
reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant
unreasonably failed to take advantage of any preventive or corrective opportunities provided by
the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra;
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC
Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in
a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being
taken against the employee. By way of contrast, in the case of co-worker harassment, an agency
is responsible for acts of harassment in the workplace where the agency (or its agents) knew or
should have known of the conduct, unless it can show that it took immediate and appropriate
corrective action. Id.

Upon review, we find that the preponderance of the evidence and the totality of the circumstances
do not indicate that Complainant established her claim that she was subjected to a hostile work
environment based on sex, color, national origin, or reprisal. With regard to Complainant’s claim
of hostile work environment, we make the following determinations:

I. Elements 1, 2 and 3 -- Unwelcome Conduct based on Sex, Color, National Origin, and
Reprisal

Regarding element 1, the record is undisputed that Complainant is a female with a dark complexion
from the Caribbean, and that she has engaged in prior EEO activity. Therefore, she is a member
of four statutorily protected classes. We note that Complainant’s first allegation of harassment
occurred on March 10, 2016, which was the day that she received a poor review of her work
performance. Regarding elements 2 and 3, we find no persuasive evidence that the TTL made the
comments that Complainant alleges were made by her. In fact, the TTL denied making
inappropriate comments and specifically disavowed ever making a comment about men not liking
“dark chocolate.” The record indicates that the witnesses also did not support Complainant’s
contention that these comments occurred. To the extent that Complainant believes that the
witnesses were afraid to testify truthfully on her behalf, we note that she was given the opportunity
to have a hearing before an EEOC Administrative Judge who could have made credibility
determinations after the witnesses testified under oath. Because Complainant did not want a
hearing, we can only decide this matter based on the weight of the evidence before us.

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As there is no evidence to support Complainant’s assertions that these statements were made to
her, we find Complainant failed to prove that the harassing incidents occurred or that she was
subjected to any unwelcome conduct based on her protected bases. We further find that
Complainant did not demonstrate that the alleged conduct she complained of was so severe or
pervasive, as a matter of law, to establish a claim of hostile work environment harassment. The
EEO laws are not a civility code. 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). As Complainant did not establish elements 2, 3, or 4, we find that she did not
demonstrate that she was subjected to harassment.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not demonstrate
that she was subjected to discrimination and harassment as she alleged.

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

October 18, 2018
Date