[Redacted], Cassie S., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Oct 18, 2021

Appeal No. 2021001390 (E.E.O.C. Oct. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cassie S.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021001390 Agency No. 9D1S1800262 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 17, 2020, 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. BACKGROUND At the time of the events giving rise to this complaint, Complainant was employed by the Agency as a probationary, non-appropriated fund Guest Services Representative, at the Fort MacArthur Inn located at the Los Angles Air Force Base, in Los Angeles, California, from December 4, 2017, until her resignation on January 21, 2018. Complainant filed an EEO complaint alleging that she was subjected to discrimination and harassment by her first level supervisor, S1, based on race (Asian) and national origin (Korean) when the following allegedly occurred: A. She was subjected to inappropriate comments about her race, national origin, and culture from December 6, 2017 to January 21, 2018, when: (1) on December 6, 2017, she overheard S1 tell a maintenance worker, “Another [the first name of CW2 (Asian, South Korean), who was a coworker and friend of Complainant] is working here now,” and then they started “bad mouthing” CW2 while staring at 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. 2021001390 2 Complainant; (2) on December 12, 2017, S1 gave her an AF Form 971 to sign and shouted at her “many times,” “Listen! Listen! You are such a hard-headed that you never listen! You have to follow my instructions!!”; (3) on December 13, 2017, when a guest told S1 that he had just returned from Korea, S1 asked him where her (S1’s) purse was. She also alleged that S1 had asked her to bring her a mink blanket and a purse when she came back from Korea; and (4) on January 5, 2018, S1 and S2 told her that she could be a translator for Korean guests who were having a hard time communicating in English, but she could not speak Korean with another Korean-speaking employee because management did not understand the language and would not know whether she was “bad mouthing” management. B. She was asked to performed duties outside of her position description that put her in a position to be exposed to harassment from lodging guests from December 6, 2017 to January 21, 2018. C. She was exposed to unsanitary conditions without regard to personal protection from December 6, 2017 to January 21, 2018. D. On January 21, 2018, she was forced to resign as a result of the hostile work environment. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge. Complainant did not respond. On November 17, 2020, the Agency issued its final decision finding no discrimination pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination and harassment as alleged. Complainant filed this appeal on December 20, 2020.2 With respect to claim A(1), Complainant stated that on December 6, 2017, she overheard S1 tell CW3, a former maintenance worker, “Another [CW2] is working here now” and then they started “bad mouthing” CW2 while staring at Complainant. According to Complainant, “my feeling from the whole interaction was that since I was also Korean-American, that I was immediately grouped with and compared against the other Korean-American in that section,” and that “Koreans are not as valued as the rest of the staff.” S1 and S2 disputed Complainant’s version of this incident. According to management, CW3, after seeing Complainant from behind, mistook Complainant for CW2, and was about to leave 2 We note that Complainant’s representative sent in a September 28, 2021 submission in support of the appeal. EEOC Regulation 29 C.F.R. § 1614.403(d) provides that any statement or brief in support of an appeal must be submitted within 30 days of the date of filing the appeal. Accordingly, the Commission will not consider this untimely submission. 2021001390 3 the area because of a prior poor working relationship with CW2. S1 corrected CW3 and indicated that although they both had similar black hair, Complainant was a new employee and not CW2. With respect to claim A(2), Complainant alleged that on December 12, 2017, S1 gave her an AF Form 971, Supervisor’s Record of Employee, to sign and shouted at her “many times,” “Listen! Listen! You are such a hard-headed that you never listen! You have to follow my instructions!!” Complainant believed that S1 believed all Koreans are “hardheaded” and felt she could say that to Complainant in a loud voice in front of CW2, who was working in the office next to S1. Complainant also noted that S2 did nothing. S1 stated that there was a meeting between herself, S2, and Complainant because Complainant had given guests money back twice without calling management or coworkers. S1 stated that she told Complainant, “what can I do to get you to listen. We can’t go back and get this money back.” S1 stated that she was not yelling but asked what to do to get her to listen. S2 stated that after the third time Complainant returned money to a guest when she should not have, S1, Complainant, and he had a meeting. He stated that S1 asked Complainant “[w]hat do I have to do to get you to pay attention? I keep asking you to take notes and you are not doing this. You are not following directions. I do not know how to get you to understand and take notes and ask questions. I’m here to support you. You must call us if you have questions.” S2 indicated that S1 used the term, “hardheaded,” in her everyday vernacular, and that he did not consider it derogatory. The record contains an Agency Form 971 dated January 19, 2018, which documents a conversation between S1 and Complainant after Complainant gave two guests, on two different occasions (January 5 and 15, 2018) refunds they were not supposed to receive. With regard to A(3), Complainant stated that on December 13, 2017, when a guest told S1 that he had just returned from Korea, S1 asked him where her (S1’s) purse was. S1 also asked Complainant to bring her, S1, back a mink blanket and a purse when she came back from Korea. S1 stated that she told Complainant that when her husband was stationed in Korea, everyone had asked him to bring them a mink blanket. S1 stated that she told Complainant that if she went to Korea to think of S1 as S1 would like a mink blanket as they are of better quality than those available in the United States. Regarding claim A(4), Complainant alleged that on January 5, 2018, S1 and S2 told her that she could be a translator for Korean guests who were having a hard time communicating in English, but that she could not speak Korean with CW2 because management did not understand the language and would not know whether she was “bad mouthing” management. Complainant further alleged that Hispanic and Filipino members on the cleaning crew were able to speak to each other in their own language without a problem. 2021001390 4 S1 stated that there was no “English only” policy. She stated that CW1 overheard Complainant and CW2 speaking in Korean and she did not think it was appropriate pursuant to the Agency’s Equal Opportunity regulation AFI 36-2706, which provides that English is the operational language of the Agency.3 S1 stressed that employees may speak other languages on breaks or to translate (as the same is done with employees of other races/national origin) if it is easier for the guests. S1 stated that she had no impact on the cleaning crew because they did not work for her and was not aware if they spoke Spanish on their breaks. Similarly, S1 stated that she never yelled at Complainant for speaking Korean or embarrassed her in front of others. S2 stated that he did not witness the conversation but that another employee reported to S1 about Complainant speaking in Korean. S1 told Complainant to be careful because sometimes others can be offended. S2 stated that if CW2 was training Complainant and Complainant had a learning issue and asked to receive instruction in Korean then that may be permissible. He also noted that S1 was aware CW2 would speak in Korean on her phone and S1 did not have a problem with it. S2 stated that S1 also had no problem with Complainant, but since the issue was raised by CW1, she addressed the situation. During the investigation, CW2 was asked, “Are you allowed to speak in languages other than English in the workplace? If not, why not?” She answered: As far as I am concern[ed], yes when helping Korean speaking customers. Although, when [Complainant] and I were speaking amongst each other in Korean, I noticed that [S1] gave a disliked look toward us while in passing. Also, shortly after [Complainant’s] resignation, [she] mentioned how she was told by [S1] in several occasions not to speak in her native tongue (Korean) in the workplace. Several months later, I was called in to a meeting by [S1 and S2] in that meeting [S1] brought to my attention that an employee complained how the employee felt uncomfortable the night [Complainant] and I were speaking in Korean. I assured to [S1] and [S2] that we did not only speak in Korean but also in English so that the one other employee working that evening would not feel as though [Complainant] and I were talking about the employee. 3 The specific provision in question, which is provided to all employees, according to S1, provides that: [t]he operational language of the Air Force is English. Air Force personnel must maintain sufficient proficiency in English to perform their official duties. All official communications must be understood by everyone who has a need to know their content. Commanders may require Air Force personnel to use English only when such use is necessary for the performance of official duties. Accordingly, commanders, supervisors, and managers at all levels must not require use of English for personal communications which are unrelated to official duties. 2021001390 5 CW2 was asked if she witnessed anything at work that she perceived to be discrimination, harassment, or that would create a hostile work environment, and she answered, “no, not toward [Complainant].” She was also asked if she had ever seen anyone in Complainant’s supervision say or do anything that would lead her to think they were biased against individuals because of their race and national origin. She answered, “no.” Regarding claim B, Complainant stated that she was required to perform duties outside her position description, which put her in a position where she was exposed to harassment by guests. Specifically, she stated that when she was on the night shift and guests found a problem with the room, she was required go to the guest’s rooms and fix the problem. Complainant felt this was dangerous for a female to be sent to guests’ rooms alone where guests could potentially be drunk. She was never harassed by guests but on one instance, Complainant and CW2 were fixing a television problem and there was a couple “making out” on the couch in front of them while they were trying to fix the television. Complainant felt she was not qualified to perform such duties and should not be put in such a situation. S1 stated that the policy was that if housekeeping or management were gone, the representative at the Front Desk was required to go to the room if something was not working. S1 stated that the policy was implemented by S2 because if housekeeping and management were gone, he wanted people to take pictures for verification. S1 noted that the front desk was there until midnight, but maintenance and others left at 4 pm. All front desk clerks, including S1, are required to perform this duty. Because they are usually required to perform these duties alone, S1 stated that she tells staff they can call Security Forces if they feel unsafe. S1 maintained that she has tried to get this policy changed, but it has been in place for years and is considered “other duties as assigned.” S2 stated that everyone performs similar duties, including himself. If it is after hours and a guest complains about a room, the desk clerk is asked to go over to the room and verify. Desk clerks are asked to take a picture because if it is not done immediately, it is hard to assess what was or was not cleaned. Similarly, desk clerks are asked to send an email to S1 and S2 to investigate the issue and work with housekeeping to ensure the room is clean to the customer’s satisfaction. S2 also considered this function as an example of “additional duties assigned.” Although Complainant stated that CW4, a black female employee, was not required to perform these duties, both S1 and S2 stated that CW4 assists guests just like the other staff. A representative from Human Resources indicated that going to guest rooms to assist with items complained about would fall under the performing “other related duties as assigned” language in Complainant’s position guide. Regarding claim C, Complainant stated that, on January 14, 2018, when she was working the front desk alone, guests called to complain that their room had not been cleaned, and she went to the room to clean it, including wiping up food from furniture and making the bed without any personal protection, such as a mask and gloves. 2021001390 6 S1 and S2 stated that it was the office policy that Guest Service Representatives were only to take pictures of the room to establish that the room had not been cleaned and then email a picture to the housekeeper. S1 stated that she never required anyone to clean a room. S2 stated that Guest Service Representatives were instructed that if a guest brought them dirty linens, they were to use gloves and put the linens in a bag. S2 and S1 each stated that latex gloves and other supplies are kept at the front desk for use in these instances. Regarding claim D, Complainant maintained that the situations set forth in claims A, B, and C caused her to want to quit and led to her resignation because she was belittled for being Korean and treated differently than others who were not subjected to similar conduct or comments. 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”). Assuming, arguendo, Complainant established a prima facie case of discrimination based on race and national origin, the Agency provided legitimate, nondiscriminatory reasons for its actions in claims A(2), A(4), B, and C. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). We find no persuasive evidence of pretext. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Complainant did not demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). With respect to claim A(4), we specifically find, upon review, no persuasive evidence that Complainant was subjected to a speak-English-only rule. See 29 C.F.R. § 1606.7(b) (a rule requiring that employees speak only in English at certain times must be justified by business necessity); EEOC Compliance Manual, Volume II, Section 623 (“Speak-English-Only Rules and Other Language Policies”); New Compliance Manual, Section 13 - National Origin Discrimination (November 22, 2002) (“An English-only rule would be unlawful if it were adopted with the intent to discriminate on the basis of national origin”); Funes v. Dep’t of Homeland Security, EEOC Appeal No. 0120051364 (Dec. 4, 2006) (finding that no English only rule existed where the manager told complainant to speak English only while on duty); Vindas- Krych v. U.S. Postal Serve, EEOC Appeal No. 01A45939 (Aug. 31, 2006) (finding that no 2021001390 7 English only rule existed where complainant was instructed not to speak Spanish while in the presence of another employee who did not speak Spanish); Wallace v. Dep’t of Commerce, EEOC Appeal No. 01A15109 (Jan. 23, 2003) (finding that no English only rule existed where complainant made a statement in Spanish, and the manager told her to speak English only). According to S1 and the Agency’s regulation, employees are only required to speak English when they are conducting official business, not when they are on breaks or engaged in non- official conversations, unless they are helping non-English speaking guests. According to S1, she spoke to Complainant because CW1 believed that Complainant and CW2 were involved in a conversation that was inappropriate, i.e., in violation of the policy. Complainant did not request a hearing in this case, so we do not have the benefit of an Administrative Judge’s credibility determinations; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. CW2 did state that S1 looked at her and Complainant when they spoke Korean in a way that CW2 perceived to be disapproving, but she did not indicate that S1 said anything to them or prohibited them from speaking. We find nothing that clearly indicates that S1’s actions were not consistent with Agency policy. We also specifically note that CW2 stated that she did not witness anything at work that she perceived to be discrimination, harassment, or that would create a hostile work environment; nor did she ever see anyone in Complainant’s supervisory chain say or do anything that would lead her to think they were bias against individuals because of their race and national origin. With respect to claims A(1), and A(3), we do not find that Complainant established that she was subjected to a hostile work environment with respect to these matters.4 Assuming they occurred as alleged, we do not find that Complainant established that they were based on her race or national origin; nor do we find these matters were severe or pervasive enough to have subjected Complainant to unlawful harassment. The EEO statutes are not meant to be 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). Finally, with respect to claim D, the Commission has a three-pronged test for establishing a constructive discharge. Complainant must show that: (1) a reasonable person in her position would have found the working conditions intolerable; (2) conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) Complainant’s involuntary resignation resulted from the intolerable working conditions. Taylor v. Air Force and Army Exchange Service, EEOC Request No. 05900630 (July 20, 1990). We find that Complainant’s constructive discharge claims fails because of our determination above that 4 Under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must also fail with regard to claims A(2), A(4), B, and C. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that these issues were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). 2021001390 8 Complainant has not shown that the conduct which created the working conditions she found intolerable was discriminatory. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the 2021001390 9 request. Any supporting documentation must be submitted together with the 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, 2021 Date