[Redacted], Freddy V., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Oct 7, 2021

Appeal No. 2021003727 (E.E.O.C. Oct. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Freddy V.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003727 Agency No. BOP-2019-0095 DECISION On June 16, 2021, 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 May 18, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Senior Officer Specialist, GS-0007-08, at the Agency’s Federal Correctional Institution (FCI) in Manchester, Kentucky. On September 24, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of race (Korean) when, on September 24, 2018, Complainant observed a life size cardboard cut-out of “North Korean Dictator” Kim Jung-Un in Complainant’s second-level supervisor’s (S2) (Caucasian) office. Additionally, Complainant 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. 2021003727 2 alleges that he observed pictures with other correctional officers and the cut-out of the North Korean leader.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. The instant appeal followed. On appeal, Complainant, through counsel, argues that Complainant, a Korean American employee, found the display of the life size cut-out of Kim Jung-Un in the workplace to be offensive and that it created a hostile work environment. Complainant states that S2 was aware that lieutenants had placed the life size cut-out in his office, but S2 took no action to remove the cut-out or framed pictures of officers with the cut-out. ANALYSIS AND FINDINGS To establish a claim of harassment Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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). In other words, in order to establish his harassment claim, Complainant must show that he 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 a protected basis. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, it is undisputed that S2 had a life-sized cut-out of North Korean leader, Kim Jung-Un, along with several framed pictures of various lieutenants posed with the cut-out in his office. The testimony of the S2 and Complainant’s first-level supervisor (S1) (Caucasian) was that the life- sized cut-out was placed in S2’s office while he was on vacation in June 2018 and as a joke targeted at S2, comparing him to the dictator. Complainant states that he had a meeting with S2 in his office sometime after S2’s vacation, in which the cut-out stood behind S2 and faced Complainant and the pictures were visible on the wall. 2 The record reflects that Complainant alleged that the pictures were of other correctional services officers with the life size picture of North Korean leader, Kim Jung-Un, and not the Captain with the life size cut-out. 2021003727 3 The Agency argues that there was nothing inherently racist about the cut-out, which essentially was a realistic photograph of a public figure. Title VII is not meant to be a general civility code that will rid the workplace of all petty slights and annoyances. Rather, “Title VII was enacted to protect against behavior that is based on a protected basis and so severe or offensive as to alter the complainant’s working conditions.” Hall v. Dep’t of Defense, EEOC Appeal No. 01A11221 (May 22, 5 2002). The Agency persuasively argues that the cut-out was not objectively offensive such that it triggered Title VII’s protections against discriminatory harassment. Moreover, the only connection Complainant made to his own race during the investigation was to say the cut- out featured a Korean and Complainant was the only employee of Korean descent working at the Manchester FCI. However, the evidence strongly indicates that there was no intent to target Complainant or individuals of Korean descent with the cut-out. Rather, it appears that its placement in S2’s office by his subordinate lieutenants was intended as a joke directed at S2, who was not Korean, about his stature and management style. Thus, the record evidence does not affirmatively establish that the asserted harassing conduct was based on Complainant’s race. We also note that Complainant has only identified a single incident when he was exposed to the cut- out, making it unlikely that it was sufficiently pervasive to create a hostile work environment However, there is little doubt that Complainant was deeply offended by the presence of the cut- out in the workplace and especially in the office of a management official. He said he believed the cut-out made fun of people like him of Korean descent. Therefore, even assuming the presence of the cut-out was sufficiently severe or pervasive to alter Complainant’s working conditions, the issue to be determined is whether or not the Agency is liable for the asserted harassment. 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. Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Where harassment by a supervisor creates an unlawful hostile environment, the employing agency can raise an affirmative defense where the conduct complained of is not a tangible employment action by showing that it exercised reasonable care to prevent and correct promptly any harassment and that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994); Marielle L. v. Soc. Sec. Admin., EEOC Appeal No. 0120162299 (Mar. 29, 2018); Joel P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120162383 (Mar. 5, 2018). Appropriate agency corrective action is that which is reasonably calculated to stop the harassment. Parker v. Dep't of the Navy, EEOC Appeal No. 0120100303 (July 20, 2012). Here, Complainant concedes that as soon as he made his concerns about the cut-out known to the Associate Warden (Caucasian), the cut-out and all photographs of the lieutenants posing with it were immediately (by the next day) removed from the workplace. Complainant admits that at no point prior to complaining to the Associate Warden did he express his concerns to S2, the involved lieutenants or any other Agency official. Complainant also does not assert there were any other incidents of alleged harassment either before or after this matter. 2021003727 4 Accordingly, we conclude that the Agency has met its burden of proving its affirmative defense to liability by showing it took prompt and effective action to correct the situation and prevent it from occurring in the future. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no violation of Title VII. 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. 2021003727 5 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 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 7, 2021 Date