Eric S.,1 Complainant,v.Patrick M. Shanahan, Acting Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Feb 8, 2019

0120171646 (E.E.O.C. Feb. 8, 2019)

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

Eric S.,1
Complainant,

v.

Patrick M. Shanahan,
Acting Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120171646

Agency No. DLAN-16-0039

DECISION

On April 5, 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
February 28, 2017, final decision concerning his 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
REVERSES 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 national origin, age, and/or reprisal when
his supervisor directed him to speak English when in the workplace.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Distribution Process
Worker, WG-6901-5, at the Agency’s Defense Distribution Susquehanna facility in New

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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Cumberland, Pennsylvania. Complainant is from Puerto Rico and identified his race as Hispanic.2
Complainant stated that he filed an EEO complaint in 2013 based on race and national origin. In
November 2015, Complainant was 44 years old. Complainant’s supervisor was a Supervisory
Supply Technician (S1; Caucasian, 55 years old, no prior protected EEO activity).

According to Complainant, on November 5, 2015, he was in his work area working on labels when
a temporary Supervisor (C1) who is also Puerto Rican came to his work area. Complainant stated
that they greeted each other in Spanish and were asking about each other’s families when S1
approached and loudly said, “English, English!” S1 stated that he said, “English, English!” to C1
because C1 was in S1’s shop “speaking Spanish during working hours,” and because he “need[s]
to know and understand what’s going on.” Report of Investigation (ROI) Exhibit F6 at 3. When
asked whether the Agency had an English-only policy, S1 responded, “The Navy has a policy to
speak English during duty hours. I believe it is the same for all government agencies.” Id.

On April 15, 2016, an Equal Employment Specialist (E1) provided the EEO Investigator with a
memorandum for the record, which states, “Defense Distribution Susquehanna, Pennsylvania does
not have an English Only policy statement.” ROI Exhibit G6 at 3.

On January 5, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of national origin (Hispanic), age (44), and reprisal for prior protected
EEO activity when on November 5, 2015, he was instructed to speak in English while in the
workplace.3

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC 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 him to discrimination as alleged. The Agency reasoned that Complainant failed
to show that he suffered tangible harm with respect to a term, condition, or privilege of
employment when S1 told him to speak only English in the workplace. The Agency also noted
that English-only rules can constitute national origin discrimination but cannot constitute
discrimination based on race, age, or reprisal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency failed to meet its burden that the English-only
rule was justified by business necessity. Complainant stated that S1 telling him only to speak
English is burdensome, created an atmosphere of inferiority, isolation, and intimidation, and has
caused him anxiety and depression.

2 Although Complainant designated his race as “Hispanic,” the Commission recognizes this term
as an indication of national origin rather than race. Accordingly, we will address his claim as
involving an allegation of national origin discrimination.

3 Complainant withdrew the additional basis of disability during the processing of his complaint.
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In response to Complainant’s appeal, the Agency contends that the Agency clearly established
business necessity because S1 saw someone who did not work in his area and was trying to
determine why he was there. The Agency also contends that Complainant’s claim fails because he
failed to establish that he was subjected to an adverse employment action.

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”).

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); 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, S1 confirms saying, “English, English!” on November 5, 2015. We find that this
instruction, on its face, constituted an English-only rule. 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 exchanging pleasantries in the work environment was necessary for
the safe or efficient operation of the Agency. See Minda W. v. Dep’t of the Navy, EEOC Appeal
No. 0120162040 (April 24, 2018). Although the Agency argues on appeal that C1’s presence in
S1’s area constituted a “clear” safety risk, S1 stated during the investigation that he recognized C1
as a supervisor from a different area of the facility, undercutting the alleged safety concerns. ROI
Exhibit F6 at 2. We therefore find that the Agency subjected Complainant to discrimination based
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on national origin when on November 5, 2015, it implemented an English-only rule that was not
justified by business necessity.

Given our finding of national origin discrimination and the fact that a finding of discrimination
based on age or reprisal would not entitle Complainant to any additional relief, we decline to
analyze whether Complainant was subjected to discrimination based on age or reprisal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we REVERSE the Agency’s final decision finding no discrimination
and REMAND 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 thirty (30) calendar 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. Within ninety (90) calendar days of the date this decision is issued, the Agency shall
conduct a supplemental investigation concerning Complainant’s entitlement to
compensatory damages for the harm caused by the national origin discrimination and
determine the amount of compensatory damages due in a final decision with appeal rights
to the Commission. Within thirty (30) calendar days of the date the Agency determines the
amount of compensatory damages due, the Agency shall pay this amount to Complainant.

3. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post a
notice in accordance with the statement entitled “Posting Order.

4. Within ninety (90) calendar days of the date this decision is issued, the Agency shall
provide a minimum of four hours of EEO training, with a special emphasis on national
origin discrimination, to all employees of its New Cumberland, Pennsylvania Defense
Distribution Susquehanna facility, including S1.

5. Within sixty (60) calendar days of the date this decision is issued, the Agency shall consider
discipline against S1. 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.

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The Agency is further directed 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 New Cumberland, Pennsylvania Defense Distribution
Susquehanna 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)),
he 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 (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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
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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
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calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. 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

February 8, 2019
Date