U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minda W.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120162040 Agency No. 15-55630-00982 DECISION On June 6, 2016, 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 5, 2016, 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 MODIFIES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, national origin, and/or reprisal when an English-only rule was implemented, when she was issued a Letter of Caution and a Letter of Expectations, and when she allegedly was subjected to harassment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Financial Management Analyst in the Aviation Supply Department at the Agency's Helicopter Maritime Strike Wing Pacific (CHSMWP), Naval Air Station North Island (NASNI) facility in San Diego, California. Complainant's first-level supervisor was a Supervisory Supply Systems Analyst (S1), and her second-level supervisor was the CHSMWP Commander (S2). Complainant averred that her race is Filipino2 and that her national origin is the Philippines. Complainant's native language is Tagalog. According to Complainant, her prior protected activity consisted of being a witness during an EEO investigation in 2012 and being named as a responsible management official in a subordinate's EEO complaint in 2014.3 Because Complainant's subordinate alleged in her 2014 complaint that she was being subjected to a hostile work environment in her EEO complaint, CHSMWP conducted a management-directed inquiry into the Financial Services Section and the Purchase Card Section, both of which were managed by Complainant.4 According to Complainant, in October 2014, a new dress code policy was instituted. Complainant alleged that on October 28, 2014, a Human Resources Specialist (HR1) questioned what Complainant was wearing in a snide manner. Complainant stated that she was wearing a clean and neat dress. HR1 denied making a disparaging comment about Complainant's dress. According to HR1, she told Complainant that she "looked nice." On October 30, 2014, the official report of the management-directed inquiry was promulgated. In the report, it was noted that one of Complainant's subordinates, C1, stated that she (C1) regularly left work 10 to 15 minutes early to catch public transportation. The report also stated that one of Complainant's subordinates reported feeling excluded when Complainant spoke Tagalog with Tagalog-speaking employees in the workplace. On November 20, 2014, S1 issued Complainant a Letter of Caution for Lack of Candor for falsifying C1's time sheet. S1 stated that HR1 presented him with options ranging from a Letter of Caution up to removal for the offense. According to S1, he chose the most lenient option, the Letter of Caution, because of Complainant's work performance and attitude. Complainant averred that C1 takes a 15-minute lunch instead of a 30-minute lunch on the days that she leaves early. According to Complainant, her predecessor had allowed C1 to leave early to catch transportation. C1 stated that it was an Agency-wide practice to let employees who commuted on public transportation leave a few minutes early. S1 stated that he was unaware of the practice until the management-directed inquiry was completed. Complainant also stated that on September 26, 2014, S1 told C1 that there was no problem with her leaving 15 minutes early. S1 stated that on one occasion he gave C1 verbal permission to leave 15 minutes early because the shuttle bus was not running, but he denied condoning C1 leaving 15 minutes early on a regular basis. On November 26, 2014, S2 issued Complainant a non-disciplinary Letter of Expectations, which outlined five concerns with Complainant's performance, including the "[u]se of language, other than English, with employees when discussing work related tasks and issues." Report of Investigation (ROI) at 98. The Letter stated that S2 expected that Complainant would "[a]lways use the English language when discussing work topics in the work environment and ensure your subordinates do the same." Id. S2 stated that he included these provisions about the use of English in the Letter of Expectations because the management-directed inquiry indicated that Complainant's non-Tagalog-speaking subordinates felt left out when she did not use English. According to Complainant, she told S2 that she uses Tagalog to discuss work-related issues with her Tagalog-speaking subordinates automatically without thinking about it at times, when she cannot think of the right word to use in English, or when it is more efficient. Complainant alleged that other employees speak Spanish in the workplace, yet she and her Tagalog-speaking subordinates were singled out for speaking a language other than English. C1 and two other employees stated that they have observed employees speaking Spanish at work without being told to use English, and that they felt that Complainant and her Tagalog-speaking subordinates were being singled out. The other issues addressed in the Letter of Expectations were ineffective communication with subordinates, overuse of email, unaddressed conflicts, and inappropriate supervisory practices. According to S2, these issues also came to light as a result of the management-directed inquiry. S2 stated that he consulted with HR1 prior to issuing the Letter of Expectations to Complainant. HR1 averred that the Letter of Expectations did not prohibit Complainant from speaking a language other than English or specifically reference Tagalog. On March 31, 2015, S2 reissued the Letter of Expectations, removing the concern about Complainant's use of a language other than English and the instruction to always use the English language when discussing work topics. The record contains an April 9, 2015, memorandum from the Helicopter Maritime Strike Wing Pacific Commander (S3) entitled, "English-Only Language Policy." The memorandum stated that an English-only policy could only be adopted when justified by business necessity, such as for communicating with customers or coworkers who only speak English or in emergencies or other situations in which workers must speak a common language to promote safety. The record contains a May 4, 2015, email from S2 to S3, recommending the rescission of Complainant's Letter of Expectations due to her compliance with the recommended actions. In relevant part, S2 stated that Complainant was: [u]sing the English Language for the vast majority of communications within her work spaces. She has full understanding of our (CHSMWP) policy that a second language may be used in the workplace on the occasions where subject language will allow better understanding of technical/salient work issues. She also understands that in these cases, use of a second language should be in a private office format so as not to disenfranchise the workforce. ROI at 107 to 108. On May 5, 2015, the Letter of Expectations was rescinded. On March 3, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Filipino), national origin (Philippines), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. In or around October 2014, HR1 directed disparaging comments regarding the dress code towards Complainant, in the presence of the Supply Management Officer and the Supervisory Inventory Management Specialist; 2. On November 20, 2014, she was issued a Letter of Caution by S1; 3. On November 26, 2014, she was issued a Letter of Expectations by S2, which prohibited her from speaking in her native language, Tagalog, in the workplace; and 4. Since September 2014, HR1 and management made her "look bad" and threatened her with disciplinary actions. 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 (AJ). 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 instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency's final decision gave insufficient weight to her affidavit as well as the affidavits of other witnesses. According to Complainant, the Letter of Expectations' instruction to use only English when discussing work-related topics was a clear violation of Agency and Command policy. Complainant argues that the Letter of Caution was unjust because S1 gave her verbal approval for C1 to continue leaving early to take public transportation. Complainant maintains that she was subjected to a hostile work environment. The Agency makes no contentions in response to Complainant's appeal. 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, Chap. 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"). English-Only Rule The EEOC guidelines on English-only rules, found at 29 C.F.R. § 1606.7, state that an employer may require that employees speak English at certain times in the workplace if the employer can show that the rule is justified by "business necessity" at those times. 29 C.F.R. § 1606.7(b) (emphasis supplied); see generally, EEOC Directive No. 915.005, Enforcement Guidance on National Origin Discrimination, Part V(C) (Nov. 18, 2016). An English-only rule is justified by business necessity if it is needed for an employer to operate safely or efficiently. See Enforcement Guidance at Part V(C)(3). The following are some situations in which business necessity would justify an English-only rule: for communications with customers, coworkers, or supervisors who speak only English; in emergencies or other situations in which workers must speak a common language to promote safety; for cooperative work assignments in which the English-only rule is needed to promote efficiency; and to enable a supervisor who speaks only English to monitor the performance of an employee whose job duties require communication with coworkers or customers. See Sanchez v. Dep't of the Army, EEOC Appeal No. 01A20555 (July 18, 2003). Ameliorating the discomfort of coworkers is not, in and of itself, a matter of business necessity that can justify an English-only rule. See Susie K. v. Dep't of Labor, EEOC Appeal No. 0120130410 (Dec. 3, 2015). In this case, it is clear that on November 26, 2014, S2 issued Complainant a Letter of Expectations which directed Complainant and her subordinates to "[a]lways use the English language when discussing work topics in the work environment." We find that this instruction, on its face, constituted an English-only rule. This rule was in effect, at a minimum, between November 26, 2014, and March 31, 2015.5 We further find that the English-only rule was not justified by business necessity. There is no evidence in the record that requiring employees to speak only English while discussing work topics in the work environment was necessary for the safe or efficient operation of the Agency. S2 stated that an unnamed employee complained about the use of Tagalog in the workplace because she felt excluded. However, we find that there is no evidence of a widespread problem involving language-related interpersonal conflicts or derogatory or intimidating conduct. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120102010 (Sep. 25, 2013). Moreover, to the extent that a problem existed, the Agency could have used a nondiscriminatory alternative, such as individually counseling employees about appropriate workplace conduct, to address the problem. Id. Therefore, the Agency has failed to establish that a matter of business necessity required the implementation of an English-only rule. Accordingly, we find that the Agency subjected Complainant to discrimination on the basis of national origin when, from November 26, 2014, until at least March 31, 2015, it implemented an English-only rule that was not justified by business necessity. Disparate Treatment Complainant also alleged that she was subjected to disparate treatment based on her race, national origin, and prior protected activity. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant averred that she was subjected to discrimination when she was issued a Letter of Caution for Lack of Candor. The Agency provided a legitimate, nondiscriminatory explanation for its actions, which was that Complainant committed time card fraud by letting C1 leave early without indicating that she was doing so on her time sheet. As evidence of pretext, Complainant alleges that S1 was aware of and condoned the practice. However, S1 stated that he gave C1 permission to leave early one day due to a shuttle bus issue and that he was unaware that this was a regular occurrence until the management-directed inquiry was completed. We find that Complainant has failed to establish by a preponderance of the evidence in the record that the Agency's legitimate, nondiscriminatory reason is pretextual. Complainant also alleged that she was discriminated against when she was issued the Letter of Expectations. Having previously examined the English-only rule outlined in this document, we will now turn to the remaining portions of the Letter of Expectations. The Agency's legitimate, nondiscriminatory reason for issuing the Letter of Expectations was employee concerns brought to light in the management-directed inquiry indicated issues in Complainant's department. Upon review, we find that Complainant has failed to establish that the Agency's legitimate, nondiscriminatory reason for these portions of the Letter of Expectations was a pretext designed to mask discrimination or retaliation. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) 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 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Here, there is no evident connection between the alleged instances of harassment other than the issuance of the English-only rule and Complainant's race, national origin, or prior protected EEO activity. Moreover, we find that the alleged harassment was insufficiently severe or pervasive to constitute a hostile work environment. Accordingly, Complainant has failed to establish by a preponderance of the evidence that she was subjected to a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part and REVERSE in part the Agency's final decision, REMANDING the matter for further processing in accordance with this decision and the ORDER below. ORDER The Agency is ordered to take the following remedial action: 1. To the extent that it has not already done so, within 30 days of the date this decision is issued, the Agency shall review and revise the English-only rule at issue in this complaint to ensure that violations do not recur. 2. Conduct a supplemental investigation into compensatory damages for harm caused by the national origin discrimination against Complainant within ninety (90) calendar days of the date this decision is issued. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to the Complainant for the undisputed amount within thirty (30) calendar days of the date the Agency determines the amount it believes to be due, and issue a final agency decision on the issue of compensatory damages. 3. Within thirty (30) days of the date this decision is issued, the Agency shall expunge the November 26, 2014, Letter of Expectations from all official records. 4. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice, in accordance with the statement entitled "Posting Order." 5. Within ninety (90) days of the date this decision is issued, the Agency shall provide a minimum of four hours of EEO training, with emphasis on national origin discrimination, to all employees of the Aviation Supply Department, as well as the Human Resources employees responsible for supporting the Aviation Supply Department, at the Agency's Helicopter Maritime Strike Wing Pacific, Naval Air Station North Island facility, including S2 and HR1. 6. Within sixty (60) days of the date this decision is issued, the Agency shall consider discipline against the responsible management officials, including S2. The Commission does not consider training to be disciplinary in nature. The Agency shall report its decision to the Commission, and, if the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Agency is further submitted to submit a report of compliance, as explained in the statement "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Helicopter Maritime Strike Wing Pacific, Naval Air Station North Island facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 4-24-18 __________________ Date 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 The Commission considers the term "Filipino" to denote national origin rather than race. However, the analyses regarding discrimination based on race are the same as the analyses regarding discrimination based on national origin, and we consider Complainant's claims accordingly. 3 The Commission has held that being named as a responsible management official does not constitute protected activity. See e.g., Magrogan v. Dep't of Homeland Security, EEOC Appeal No. 0120122331 (Sep. 11, 2012). 4 The relevance of the management-directed inquiry is discussed further, infra. 5 Although Complainant was issued the revised Letter of Expectations without the English only rule on March 31, 2015, S2's May 4, 2015, email to S3 implies that Complainant was still inappropriately being evaluated by management with respect to her use of English in the workplace. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162040 10 0120162040