[Redacted], Jerold Y., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 27, 2021

Appeal No. 2020003629 (E.E.O.C. Oct. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerold Y.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003629 Agency No. 18-00204-01216 DECISION On May 20, 2020, 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 April 22, 2020, 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 Second Cook, WM-9973-08, for the Military Sealift Command in the Galley Section on the USNS Laramie. On March 25, 2019, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on race (African-American) and color (Black) when, on November 7, 2018, Medical Service Officer (MSO) referred to Complainant as an “ape” and then followed up by saying she meant to say “ape-shit.”2 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. 2 In his formal complaint, Complainant also lists age and sex as bases. The Agency’s final decision stated that, during the investigation, Complainant stated that his age and sex were not factors in this complaint. The record indicates the same. Therefore, we consider these additional bases as withdrawn by Complainant. 2020003629 2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to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. ANALYSIS AND FINDINGS To establish a claim of discriminatory hostile environment 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 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 an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). In other words, to prove his harassment claim, Complainant must establish 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 - in this case, his race and color. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, Complainant and MSO (Caucasian, white), from all accounts, were engaged in a verbal altercation. MSO testified that Complainant was agitated, and was raising and lowering his arms, at which point she stated that he was going “ape” which she immediately corrected to “ape-shit.” Complainant complained to the Captain (Caucasian, white) about MSO’s comment, but the Captain said both Complainant and MSO were responsible for the verbal altercation and took no further action against either of them. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” Whether harassment is sufficiently severe to trigger a violation of EEO statutes must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably 2020003629 3 interferes with an employee’s work performance. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Under certain circumstances, a limited number of highly offensive slurs or comments about a federal employee's race may support a finding of discrimination under Title VII. The Commission has previously determined, for example, that the use of a particular racial epithet (the n-word) is a “highly charged epithet” which “dredge[s] up the entire history of racial discrimination in this country.” See Brooks v. Dep't of the Navy, EEOC Request No. 05950484 (June 25, 1996). In the instant case, involving a single incident, we conclude that the comment by MSO was not sufficient to amount to a violation of Title VII. We recognize that racial stereotypes have persisted to the present with characterizations of African Americans as monkeys, apes and other animals. As such, it may be reasonable to conclude “that the use of monkey imagery is intended as a racial insult where no benign explanation for the imagery appears.” Burkes v. Holder, 953 F. Supp. 2d 167, 179 (D.D.C. 2013). However, under the unique circumstances presented here, while we understand that MSO’s words were offensive to Complainant, we do not find that her single use of “ape,” which she promptly modified to “ape-shit,” was directed at Complainant with discriminatory animus against his race and color. A hostile work environment under Title VII is a cumulative phenomenon, and a series of individual episodes of inappropriate actions can eventually amount to a hostile environment. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). This singular incident did not rise to the level of severity or pervasiveness to constitute harassment in violation of Title VII. CONCLUSION Based on a thorough review of the record and the contentions on appeal, 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. 2020003629 4 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 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. 2020003629 5 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 27, 2021 Date