Carmen G. Avila, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
01996939 (E.E.O.C. Sep. 26, 2002)

01996939

09-26-2002

Carmen G. Avila, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Carmen G. Avila v. Department of the Navy

01996939

September 26, 2002

.

Carmen G. Avila,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01996939

Agency No. 97-00281-001

Hearing No. 120-98-9412X

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated

against on the bases of race (Spanish), national origin (Hispanic), and

religion (Pentecostal) when management: (1) issued a memorandum regarding

lunch periods; (2) harassed her about her Spanish accent on November 14,

1996; (3) issued her a Work Performance Plan; (4) reassigned her from

the infant room to a floater assignment; (5) yelled, intimidated, and

scrutinized her more closely than other employees; (6) told her that

she was not allowed to be alone with the children; and (7) told her to

cover her book because someone could be offended.

The record reveals that during the relevant time, complainant was employed

as a Child Development Program Assistant in the Child Development Center,

Morale, Welfare and Recreation Directorate, Fleet Combat Training Center,

Virginia Beach, Virginia facility (Center). Believing she was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on February 12, 1997. At the conclusion of the

investigation, complainant was informed of her right to request a hearing

before an EEOC Administrative Judge or alternatively, to receive a final

decision by the agency. Complainant initially requested a hearing but

subsequently withdrew her request. Accordingly, the agency issued a FAD.

Background

As an entry level program assistant, complainant initially was assigned

to the Infant Room in August 1996. In late November 1996, complainant

was reassigned to a floater position. According to her position

description, the primary function of an entry-level Child Development

Program Assistant is �to serve as a trainee, assisting higher level team

members to provide appropriate developmental care and instruction for

children in the Center.�

On September 25, 1996, complainant's first-line supervisor (S1) (African

American, Native American, Pentecostal) sent a memorandum to all child

care-givers regarding lunch breaks. The memorandum was addressed

generally to �Ladies.� The memorandum requested that all care-givers

adhere to the assigned lunch schedule so that all care-givers are able

to take their full 30-minute lunch break.

On November 4, 1996, complainant's third-line supervisor (S3)

(White, Irish, German, English, Christian) placed complainant on a Work

Performance Plan (PIP) which indicated that complainant needed to improve

her oral and written language skills. To demonstrate the need for the

PIP, three examples of complainant's written communications were cited

from the safety module workbook and the accident/incident report forms.

The PIP states that complainant �must improve in these critical areas

of communication. The following are requirements that [complainant]

is to put into effect as of the date that this work plan is assigned:

All future work assignments are to be printed [versus] written

in cursive; this will make reading easier for those who work with

[complainant] and also will make it easier for parents to read all

reports.

All reports must be grammatically correct. When in doubt [complainant]

may use appropriate references to ensure this, i.e., dictionary or

thesaurus.

Speak slowly and enunciate clearly the words spoken, this will ensure

that there is no mistaken communications.

Sing to the children in English, this should help [complainant] with her

[en]unciation.�

At the meeting with complainant on November 4, 1996, S3 also informed

complainant that she would be �assigned as a floater to work with the

[older] children on . . . a pre-school holiday presentation for the

parents.�

On November 14, 1996, complainant met with S1, S3 and her second-line

supervisor (S2) (Black, African American, Non-denominational) to discuss

an incident report completed by complainant after a child got hurt.

A copy of the incident went to the parent before S1 was able to review it.

In this particular case the parent was concerned about misspelled words

and did not understand what complainant was trying to say. Part of the

confusion came about when complainant referred to the child's mouth

and spelled the word �mouse� instead.

On November 21, 1996, S1 issued complainant a Review of Work Performance.

The review states that complainant should continue to work on the four

areas identified in the PIP. During the later part of November 1996,

complainant was reassigned from the infant room to work as a �floater�

with the pre-toddler and toddler age groups.

Complainant held her position of Child Development Program Assistant from

approximately August 1996 until April 1997. In April, 1997, complainant

was reassigned to a clerical position in another organization on the

same base.<1>

Complainant's Allegations:

Issue 1 - Lunch Memorandum

Complainant alleges the lunch memorandum issued in September, 1996

resulted in complainant having shorter lunch periods since she could not

stop what she was doing with the children and go to lunch at the moment

another care-provider came back from lunch. Complainant believes that

the memorandum was directed toward her based upon her race and national

origin.

Issue 2 and 3 - Harassed about her Accent and PIP

Complainant also alleges that on November 4, 1996 during a meeting with

S3, she was issued a PIP as a means to cover up the harassment that she

was experiencing from S3. During this meeting, complainant allegedly

was informed by S3 that inspectors were coming to do an evaluation of

the Center. S3 further stated that complainant had a strong accent and

that her accent would lower the evaluation. According to complainant,

during this meeting S3 asked complainant if she spoke English at home.

In addition, complainant alleges that S3 stated that she had two weeks to

learn to speak perfect English. S3 also allegedly said that complainant

could not speak or sing in Spanish to the kids.

On November 14, 1996, complainant alleges that S3 called her into

her office along with her other supervisors, S1 and S2. According to

complainant, S3 stated that she was concerned about an upcoming inspection

and believed that complainant's accent and command of the English language

could create a degrading presence to the office and her co-workers.

S3 further allegedly stated that complainant's accent affected the entire

office and children. Furthermore, complainant alleges that S3 brought

her chair directly in front of where complainant was sitting, pressed her

knees against complainant and pointed her finger in complainant's face

while she was talking. S3 allegedly stated that if she knew complainant

had a strong Spanish accent, complainant would not have been hired.

She further allegedly stated that people like complainant should not

be allowed in this country. S3 also allegedly stated that complainant

was a �good for nothing� and had no skills. Complainant alleged that

during the entire meeting, S3 was harassing and intimidating her while

the other supervisors kept agreeing with S3.

Issue 4 - Reassignment to the Floater Position

Complainant further argues that S3 informed her that she was reassigned

to the floater position due to complaints made by a co-worker (C1) that

complainant was complaining too much about complainant's personal life

and this was affecting C1's health. Also, complainant was instructed

not to speak with C1 or socialize with her after work. Complainant

asserts that C1 subsequently informed her that S3 was lying to her and

that C1 had no problem with complainant. Complainant alleges that S3

made her a floater because she did not want the inspectors to see her.

S3 allegedly told complainant that the position that she carried (i.e.,

the Infant Room) was too high a position for �people like [complainant].�

Issue 5 - Harassment by Intimidation and Close Scrutiny

Complainant also alleges that complainant's activities were scrutinized

more closely than those of other employees. Complainant states that

she was constantly being told over the intercom to face the camera.

Complainant also stated that she witnessed S1 with her ear to the wall

attempting to listen in on a conversation that complainant and C1 were

having. According to complainant, S3 falsely accused complainant of

abusing children at the Center. On one occasion, complainant testified

that S3 came up to her and stated that she had �tested� complainant

three times during that day and complainant had failed all three tests.

S3 stated that on one occasion complainant failed a test because when

S3 came into the room complainant stopped talking. On another occasion

S3 claimed that complainant failed her test because complainant was

not smiling and joining in on the conversation. On another occasion,

S3 indicated that complainant failed her �test� because a parent had

complained that complainant did not look happy. Complainant also alleged

that management told her co-workers not to speak to her. Complainant

further stated that S3 often screamed at her in front of S1 and S2 which

left her panicked and crying.

Issue 6 - Harassment by Not Being Permitted to be Alone with the Children

Complainant also testified that a co-worker (C2) (African American,

Black, Baptist) told her that she was not allowed to be alone with

the children, and if she did she would be fired. In addition, S1,

S2 and another supervisor (SS) (African American, Black, Protestant)

told complainant that she was not to be alone with the children.

Issue 7 - Harassment by Being Told to Cover her Book

Complainant contends that on March 13, 1996, she was told by a supervisor

to cover a book she was reading during her lunch period. Complainant

states the supervisor claimed it looked like some sort of witchcraft

and could offend others.

Agency's Position

Issue 1 - Lunch Memorandum

S1 affirmed that the September 25, 1996 lunch memorandum was designed

to correct a general problem concerning the lunch policy. S1 further

affirmed that the memorandum was directed to all the care-givers and

was not directed toward complainant in particular.

Issue 2 and 3 - Harassment about her Accent and PIP

With respect to the PIP issued on November 4, 1996, S3 stated that

�[complainant's] primary problem was with written communication, and that

is what I was trying to address when she was issued a performance plan

. . .� With regard to the meeting on November 14, 1996, S3 indicated

that the primary purpose of the meeting was to discuss complainant's

written communication problems and specifically, an accident/incident

report completed by complainant on October 24, 1996. S3 generally

denies all the allegations made by complainant regarding harassment and

derogatory statements regarding complainant's accent.

According to S3, parents raised concerns to S2 and other management

officials regarding written accident reports. In addition, S1 and S2

had difficulty reading classroom log books and training modules prepared

by complainant.

S1, S2 and S3 all denied yelling at or intimidating complainant.

In addition, S1 and S2 affirmed that S3 has a quiet voice and never yells.

Issue 4 - Reassignment to the Floater Position

S3 affirmed that complainant was assigned to be a floater with the

preschool-age group to work with the children on a holiday presentation

for the parents, called �Holidays Around the World.� According to S3, the

children would sing in different languages. S3 stated that complainant

seemed to be happy with the assignment. S3 also stated that she assigned

complainant to be a floater not as a demotion, and averred that some

people prefer to be floaters because it gives them greater flexibility

in their schedules.

S2 affirmed that she noticed complainant was having problems with

performance and interacting with co-workers. S2 states that complainant

was moved to a floater position because she was not working out that

well where she was as an assistant in the Infant Room. According to S2,

complainant did a good job keeping the children happy, however there

was more to the job. There were procedures and regulations that had to

be followed. According to S2, complainant had several mis-communications

with parents. On one occasion, a parent understood complainant to

say that another care-giver had eaten the child's applesauce. According

to S2, that was unfounded. Further, S2 averred that one co-worker was

in tears one day about complainant not helping her, but instead talking

about her own personal problems.

Issue 5- Harassment by Intimidation and Close Scrutiny

S1, S2 and S3 denied complainant's claims that they were harassing her

or subjecting complainant to close scrutiny.

Issue 6 - Harassment by Not Being Permitted to be Alone with Children

According to S2, prior to background checks being completed and reviewed,

no one could work alone with the children. After that, one person

cannot work alone unless there is a surveillance camera available.

S1 stated that according to federal regulations, there should always

be at least two child care-givers regardless of the number of children.

S1 explained that when the Center first opened, management thought one

person could work alone as long as there was a 4:1 ratio between infants

and care-givers. During an annual inspection, they learned otherwise.

From that point on, no one was allowed to work alone with children.

Issue 7 - Harassment by Being Told to Cover her Book

SS denied that she told complainant to cover any book. However, during an

open house for parents and other guests, she noticed a book on the counter

next to the sink. According to SS, it was a hard-covered book and the

title had some mention of the word �witch.� SS further stated that she

was concerned about someone seeing it and spoke to S1 about the book.

SS claims that she never saw the book again. S3 stated that she has no

knowledge of any incident where complainant was asked to cover a book.

Testimony from other Witnesses:

Issue 2 and 3 - Harassed about her Accent and Issued a PIP

According to the EEO counselor's report, a Child Development Program

Assistant (C4) (African American, Black, Baptist) was in a meeting where

S2 and S3 were discussing complainant's language. Since complainant

has been under her supervision, C4 stated that complainant has been a

good worker, never insubordinate, and very cooperative.

C2 affirmed that S1 told her that �if the inspectors heard [complainant's]

accent she could lose her job.� In addition, C2 affirmed that beginning

in September, 1996, S2 and S3 started calling complainant out of the

room a lot. Each time complainant would return upset and tell C2 that S3

did not like her accent and did not want her to sing to the babies

in Spanish. C2 further affirmed that the parents loved complainant.

C2 specifically identified two mothers who voiced their appreciation

of complainant and who wanted complainant to speak to their children

in Spanish.

Several of complainant's co-workers provided affidavits affirming that

they had no problem understanding complainant's verbal communication.

In addition, several co-workers also affirmed that complainant was very

good with the children and that the parents loved her and were upset to

see her leave the Infant Room.

According to one of complainant's co-workers (C5) (White, Spanish,

German, Methodist), complainant was very popular with the infants when

she was working in the Infant Room. After

complainant was taken out of the Infant Room, a number of parents

expressed concern about her leaving the Infant Room and were not pleased

with the environment after complainant left.

C5 also affirmed that on one occasion, complainant's husband had come

into the Center to give her some flowers. They spoke to each other

in Spanish. According to C5, S3 made a comment about complainant and

her husband being in America and that they should be speaking in English.

Issue 4 - Reassignment to the Floater Position

C2 affirmed that she never complained about complainant to management.

In addition, C2 affirmed that S2 and S3 came to her one evening and

told her that they decided to make complainant a floater. S2 and S3

stated that it would be �better for the environment.� In addition,

S2 and S3 told C2 that she should not let complainant call her house,

and if she did, C2 should tell her children and husband that she was

not home. Complainant subsequently did call C2's home. According to

C2, complainant informed her that S2 and S3 told complainant that C2 had

health problems and that C2 did not want complainant working with her.

C2 was upset by the fact that S2 and S3 was attempting to use her as a

scapegoat to move complainant out of the Infant Room.

Issue 5 - Harassment by Intimidation and Close Scrutiny

According to the Lead Child Development Technician (LT) (African American,

Black, Baptist), she heard S2 screaming and yelling while complainant

was in S2's office sometime during the relevant period.

In addition, according to the EEO Counselor Report, the cook (CO) (Dutch,

Italian, Caucasian, Presbyterian) heard yelling coming from S2's office

some time in December, 1996, but did not recognize the voices in the room.

CO also stated that complainant was upset in the break-room once but CO

did not know why she was upset.

According to the EEO counselor's report, a Child Development Program

Assistant (C3) (Italian, Irish, Scotch, Dutch, White, Catholic) stated

that she heard S2 and S3 �make some snide comments� to themselves

under their breath that complainant could not be left alone. C3 also

remembers that she heard someone comment that they could not understand

complainant's language. In addition, C3 stated that she heard S3 and

S2 make remarks in general about complainant and one of them made the

comment that complainant was not worth anything. In addition, C3 stated

that S2 watched her classroom much closer when complainant was in the

room and S2 gave the appearance that she did not trust complainant.

If complainant left the room, for example, to take out the garbage, S2

wanted to know where complainant was. If they could not see complainant

on camera, they wanted to know where she was. C3 also stated that she

heard management tell complainant that they did not want her to talk

to the parents of the babies. It appeared to C3 that management was

attempting to force complainant to quit.

According to C1, complainant became more and more emotionally upset

because she was constantly being called into S3's office. In addition,

according to C1, as the situation got worse, complainant began to fear

talking in front of S3 because she was afraid S3 would harass her about

her accent.

Issue 6 - Harassment by Not Being Permitted to be Alone with Children

According to C2, before the inspection, it was not uncommon for a

care-giver to be left alone with the children, with the exception of

complainant. Even prior to the inspection, complainant was not allowed

to be alone with the children. C2 was not aware of the reason behind

this or who made the decision. According to C2, the supervisors were

�constantly peeping in the door to see what [complainant] was doing.�

C2 stated that this occurred even before the inspection.

Issue 7 - Harassment by Being Told to Cover her Book

The EEO counselor report indicates that SS stated that she informed S3

about the book and that S3 spoke to complainant about it.<2> According

to C1, on one occasion, S2 came to her and said that she �should tell

[complainant] to put a religious book away because �we' know what she

is trying to do.� C1 further stated that S2 did not further elaborate

on what she meant by that.<3>

Final Agency Decision

The FAD concluded that the agency articulated a legitimate,

non-discriminatory reason for its employment actions which were not

sufficiently rebutted by complainant. In addition, the FAD determined

that complainant did not meet her burden in proving harassment or that

any of the employment actions were motivated by discriminatory animus.

ANALYSIS AND FINDINGS

As an initial matter, we find that the agency incorrectly fragmented

the issues alleged by complainant. We find one claim of harassment

which includes several alleged incidents identified in claims 1-7.

In addition, we find two allegations of disparate treatment: (1) the

issuance of the PIP; and (2) the reassignment to a floater position.

See EEOC Management Directive 110 pp. 5-5 through 5-9 (November 9, 1999).

Harassment

A review of the record indicates that complainant alleges that the

incidents listed in her complaint are incidents of the continued

harassment that she has faced at the hands of management officials.

It is well-settled that harassment based on an individual's national

origin is actionable.<4> See Meritor Savings Bank FSB v. Vinson, 477

U.S. 57 (1986). In order to establish a claim of such harassment, the

complainant must prove, by a preponderance of the evidence, the existence

of five elements: (1) that she is a member of the statutorily protected

classes; (2) that she was subjected to unwelcome conduct related to her

membership in those classes; (3) that the harassment complained of was

based on her national origin; (4) that the harassment had the purpose

or effect of unreasonably interfering with her work performance and/or

creating an intimidating, hostile, or offensive work environment; and

(5) that there is a basis for imputing liability to the employer. See

McCleod v. Social Security Administration, EEOC Appeal No. 01963810

(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 987, 903

(11th Cir. 1982); see also Enforcement Guidance: Vicarious Liability for

Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,

1999). The harasser's conduct should be evaluated from the objective

viewpoint of a reasonable person in the victim's circumstances.

In assessing allegations of harassment, the Commission examines

factors such as the frequency of the alleged discriminatory conduct,

its severity, whether it is physically threatening or humiliating and

if it unreasonably interferes with an employee's work performance.

Harris v. Forklift Systems, Inc., 510 U.S 17 (1993). Usually, unless

the conduct is pervasive and severe, a single incident, or group of

isolated incidents, will not be regarded as discriminatory harassment.

Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).

Upon review of the record, we find that complainant was subjected

to a hostile work environment on account of her national origin.

Specifically, we find that she is a member of a statutorily protected

class being Hispanic. We find complainant's allegations to be

substantially corroborated by witness testimony to bring credibility to

her allegations by a preponderance of the record. In addition, we find

management's statements to have been substantially contradicted by various

witnesses. <5> Accordingly, we find the evidence to show that starting in

September, 1996 through approximately March 1997, management's treatment

of complainant included the following: (1) complainant's supervisors

called complainant into their offices on numerous occasions and held

discussions in a loud and intimidating manner; (2) complainant was

regularly told by management that she was good for nothing and had no

skills; (3) complainant was told on multiple occasions that if management

knew she had such a strong accent before they hired her, she never

would have been hired; (4) complainant was regularly told by management

that she could not speak Spanish to the children; (5) complainant was

told by management that she had two weeks to learn perfect English; (6)

complainant was told that her accent and command of the English language

could create a degrading presence to the office and her co-workers; (7)

on at least one occasion, S3 brought her chair directly in front of where

complainant was sitting, pressed her knees against complainant and pointed

her finger in complainant's face while she was reprimanding her; (8) S3

stated that people like complainant should not be allowed in this country;

(9) complainant was instructed not to speak with her co-workers or even

socialize with them after work; (10) complainant was continually told over

the intercom to face the camera; (11) complainant was falsely accused

of abusing children and was treated as if she could not be trusted;

(12) complainant's actions were constantly picked apart by management;

(13) complainant was reassigned to an undesired floater position.

We find that complainant falls into the protected class of Hispanic.

We also find the record shows that complainant was subjected to unwelcome

conduct. Specifically, several witnesses testified to complainant's

emotional state following September, 1996. Complainant was a having

a very difficult time coping with management's behavior toward her.

The record shows that on numerous occasions, management's behavior

caused complainant to cry and feel overwhelmed with panic. We also

find sufficient evidence that the unwelcome conduct was related to

complainant's accent and her national origin. The record indicates

that management had a problem with complainant's accent and her use

of Spanish in the workplace and made many derogatory statements toward

complainant because of her accent and use of Spanish. In addition, the

evidence shows that complainant was the only Hispanic employee with an

accent working at the Center. Moreover, while the record indicates that

management did not generally treat its employees well, complainant was

the only employee treated in such a severely hostile manner. We also

find that the harassment had the purpose or effect of unreasonably

interfering with complainant's work environment. We find that over

a seven-month period, management engaged in behavior that was abusive

and demeaning which interfered with complainant's work performance and

caused her emotional distress. Accordingly, we find that the evidence

indicates that complainant was subject to a hostile work environment.

Before finding a violation of Title VII, however, there must be

some basis to impute liability to the agency. When harassment by a

supervisor creates an unlawful hostile environment but does not result

in a tangible employment action, the employer can raise an affirmative

defense to liability or damages, which it must prove by a preponderance

of the evidence. The defense consists of two necessary elements:

(1) the employer exercised reasonable care to prevent and correct

promptly any harassment; and (2) the employee unreasonably failed to

take advantage of any preventive or corrective opportunities provided

by the employer or to avoid harm otherwise. See Enforcement Guidance:

Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC

No. 915.002 p. 12 (June 18, 1999). The first prong of the affirmative

defense usually requires an employer to establish, disseminate, and

enforce an anti-harassment policy and complaint procedure and to take

other reasonable steps to prevent and correct harassment. We find

no evidence in the record to show that the agency exercised its duty

of reasonable care to prevent and correct promptly any harassment.

Accordingly, the agency failed to meet its burden of proof and liability

may be imputed to the agency.

Accordingly, and for the reasons set forth above, we REVERSE the

agency's FAD and find that complainant has shown, by a preponderance of

the evidence, that she was subjected to a hostile work environment in

violation of Title VII.

Disparate Treatment

Title VII of the Civil Rights Act of 1964 prohibits discrimination

in employment based upon race, color, sex, religion, or national

origin. 42 U.S.C. � 2000e-16.<6> National origin as defined by the

United States Supreme Court refers �to the country where a person was

born, or more broadly, the country from which his or her ancestors came.�

Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88 (1973). The close

relationship between language characteristics and an individual's national

origin led the Commission to classify discrimination based on linguistic

characteristics as unlawful under Title VII. More specifically,

Commission guidelines make it unlawful to deny an individual equal

employment opportunities due to the �linguistic characteristics of

a national origin group.� 29 C.F.R. � 1606.1. See also 29 C.F.R. �

1616.6(b)(1) (selection procedures based on foreign accent).

Courts and the Commission have held that an adverse employment decision

may be predicated upon an employee's foreign accent, that is, an

accent other than English, only when it interferes materially with

job performance. See Odima v. Westin Tucson Hotel Co., 991 F.2d 595

(9th Cir. 1993); See also Vol. II to App. C., EEOC Compliance Manual,

Section 623, Speak-English-Only Rules and Other Language Policies

(Discrimination Based on Manner of Speaking or Accent). Under Title VII,

a foreign accent that does not interfere with an employee's ability to

perform the duties of the job is not a legitimate justification for an

adverse employment action. Denying employment opportunities, or otherwise

implementing adverse employment actions, as a result of a foreign accent

which causes communication difficulties may be a �cover� for unlawful

discrimination, and will accordingly, be subjected to close scrutiny in

a national origin discrimination case. See Daly v. United States Postal

Service, EEOC Appeal No. 01933547 (September 14, 1995) citing Myrick

v. Department of Veteran Affairs, EEOC Request No. 05920415 (July 10,

1992); Shah v. Department of Defense, EEOC Request No. 05901097 (March

21, 1991); and Lal v. Department of the Army, EEOC Request No. 05900318

(June 28, 1990).

In determining whether an accent or other linguistic characteristic

�materially interferes� with job performance, the Commission utilizes a

three-part inquiry which includes: (1) the level and type of communication

demands in the job; (2) whether the employee's speech was fairly evaluated

as to its intelligibility, focusing on indicators of potential bias

on the part of the deciding official and a neutral assessment of the

employee's speech intelligibility given a non-prejudiced listener; and

(3) the level, if any, to which the employee's speech intelligibility

would present difficulties in the job at issue, according substantial

weight to the future, and how reasonable individuals in the workplace

could make provisions for any difficulties understanding the employee.

See Daly v. United States Postal Service, EEOC No. 01933547 (September

14, 1995).

When applying these factors in the foreign accent analysis, the Commission

recognizes that there are at least four major contexts in a selection

decision which warrant differing analyses. Daly v. United States Postal

Service, EEOC No. 01933547 (September 14, 1995). The first situation

is where an employer wholly denies using the employee's accent when

making the employment decision at issue (e.g., Claim 4 - reassignment to

the floater position, herein). In this scenario, where the employer

denies that accent formed any part of the employment decision, a

straight McDonnell Douglas analysis would be applied, considering,

where applicable, evidence of legitimate, non-discriminatory reasons in

addition to any evidence of pretext.

In the third context, where accent is limited to be a factor, but one

or more other factors were allegedly used in addition , the first

determination would be the truth or falsity of the other factors.

Where at least one legitimate factor was used (e.g. Claim 3 - issuance of

the PIP), the next question would be whether the accent would �materially

interfere� with job performance, using the three elements noted above.

If accent is found to be a �material interference,� the use of accent may

be considered a permissible factor, and a finding of no discrimination

is warranted. If accent is found not to be a �material interference,�

then the use of accent is an impermissible factor, and a mixed motive

analysis would be applied.

Issue 3 - Issuance of the PIP

After a careful review of the record, we find that the preponderance

of the evidence shows that the issuance of the PIP was partly due to

management's intolerance toward complainant's accent and partly because

of complainant's problems with written communication. For example,

the PIP stated that in order to help complainant with her enunciation,

complainant needed to �speak slowly and enunciate clearly the words spoken

. . .� In addition, in order to help with complainant's enunciation,

the PIP required complainant to �sing to the children in English. . .�

The problem management had with complainant's enunciation could have

been better described as complainant's accent. Accordingly, we find

that the PIP was partly issued for impermissible reasons.

The PIP cited three examples of written communication problems

which were taken from the safety module workbook, and two different

children's/incident report forms as follows: (1) Items Needing Attention:

�Every is new that for they are in excellent conditions;� (2) What Happen:

�Happily playing crawling bump his mouse at the floor;� (3) When Were

Parents Notified: �Verbaly and we show him where is was at 4:45 p.m. at

the 112 room.� The written communication problems cited in the PIP and

by management are not contested by complainant. Accordingly, we find

at least one legitimate factor was used in the issuance of the PIP.

The next question to be addressed is whether the accent would �materially

interfere� with job performance, using the three elements noted above.

We find that the preponderance of the evidence shows that complainant's

speech was sufficiently intelligible and would not reasonably present any

difficulties in the job at issue. Specifically, we find that parents

and co-workers had no problem understanding complainant. Therefore,

we find that complainant's accent did not materially interfere with

her job performance. Accordingly, the use of complainant's accent was

not a permissible factor in the issuance of the PIP and a mixed motive

analysis applies.

Cases such as this in which discrimination was one of at least two

motivating factors for an employment action, i.e., in which the agency

acted on the bases of both lawful and unlawful reasons, are known as

�mixed motive� cases. Prior to the Civil Rights Act of 1991(CRA), an

employer could avoid liability in mixed motive cases if it could show that

it would have made the same decision even absent the unlawful factor.

See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). However, the

CRA effectively overruled the part of Price Waterhouse that allowed an

employer to avoid liability in this way. The CRA added Section 703(m)

to Title VII, making it clear that a violation is established when a

complaining party demonstrates that �race, color, religion, sex, or

national origin, was a motivating factor for any employment practice,

even though other factors also motivated the practice.� 42 U.S.C. �

2000e-2(m). Once a complainant demonstrates that discrimination was

a motivating factor in the agency's action, it is the agency's burden

to demonstrate that it would have taken the same action even if it had

not considered the discriminatory factor. Only if the agency is able

to make this demonstration, can the complainant's relief be reduced.

We find that the agency has failed to meet its burden in proving that

it would have taken the same action even if it had not considered

complainant's accent. We note that the record is devoid of evidence

in support of performance problems requiring a PIP. In addition,

the overwhelming evidence in the record indicates that complainant

performed her job well. Co-workers and parents all praised complainant's

performance. Moreover, we find that given complainant's written job

description, three incidents of poor written communication is not

substantial enough to warrant a PIP without prior informal discussion.

Complainant's written job description does not list written communication

skills as a �major duty or responsibility.� While the job requires that

complainant have a �command of the English language,� the preponderance of

the evidence indicates that complainant's command of the English language

is satisfactory. Accordingly, we find that the agency discriminated

against complainant on the basis of her national origin when it issued

her a PIP.

Issue 4 - Reassignment to the Floater Position

With respect to Issue 4 (the reassignment to the floater position)

in order for complainant to prevail on her national origin claim, she

must first establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination, i.e., that a prohibited consideration was a factor in the

adverse action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the

agency to articulate a legitimate, nondiscriminatory reason for its

actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, complainant bears the

ultimate responsibility to persuade the fact finder by a preponderance of

the evidence that the agency acted on the basis of a prohibited reason.

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

Complainant has shown that she was the only employee at the Center with

a Hispanic accent. The evidence also shows that complainant was the

only employee reassigned to the floater position. Lastly, there is

overwhelming evidence of discriminatory animus among the responsible

management officials.

Accordingly, we find that complainant has established a prima facie case

of discrimination based on her national origin.

The Commission also finds that the agency has articulated a legitimate,

nondiscriminatory reason for its actions. Specifically, the agency

indicated that complainant was reassigned to the floater position because

of a need for her to work on a holiday presentation. In addition,

according to management, the floater position is not a demotion and is

often preferred by employees.

Upon review of the record we find evidence of pretext and discriminatory

animus on the part of management with respect to its decision to

reassign complainant. First, we find inconsistencies between S3's

explanation and S2's testimony.<7> According to S3, the reassignment

was made because S3 wanted complainant to work on the multi-ethnic

holiday presentation. S3 even affirmed that she found complainant's

bilingual skills to be an asset and that the reassignment was not a

demotion in any respect. However, S2 explained that complainant was

reassigned because she could not handle the duties associated with the

Infant Room. S2 stated that complainant failed to follow procedures and

regulations and had some mis-communications with the parents. Yet there

is no witness or documentary evidence to corroborate the assertion that

complainant failed to follow procedures and regulation or had verbal

mis-communications with any parents. Moreover, the record is replete

with statements from co-workers indicating that complainant was a great

asset to the Infant Room and that parents were unhappy to see her leave.

In addition, the record shows that S3 and S2 told complainant that C1 did

not want complainant working with her in the Infant Room, which was false

according to C1. Moreover, the record indicates that being a floater

is not a desired position and that complainant was unhappy about the move.

In addition, various witnesses testified that management officials

harbored discriminatory animus associated with complainant's accent and

other linguistic characteristics associated with her national origin.

For example, one co-worker was told by S1 that complainant could lose

her job if the inspectors heard complainant's accent. In addition,

C2 corroborated complainant's testimony that she was told not to sing

to the infants in Spanish. C5 also testified that S3 made a comment

that complainant should not be speaking Spanish to her husband since she

lived in America. Yet, the various witnesses indicate that complainant

had no problem with her verbal communication skills.

Considering the record, we find that the preponderance of evidence

shows that the articulated legitimate, non-discriminatory reasons

for the agency's employment action of reassignment were pretext for

discrimination. Accordingly, we REVERSE the FAD with respect to this

issue.

Accordingly, and for the reasons set forth above, the Commission REVERSES

the FAD.

ORDER (C0900)

The agency is ordered to take the following remedial action:

1. The agency is ordered to take reasonable and appropriate actions to

ensure that neither the complainant nor any other employee is subjected

to a discriminatory hostile, intimidating and abusive work environment

because of national origin harassment in the future<8>;

2. Within three (3) months from the date this decision becomes final,

the agency, shall conduct one training session relating to national

origin discrimination (including harassment) in the work place.

This training shall be mandatory to all supervisors and managers at the

Child Development Center, Morale, Welfare and Recreation Directorate,

Fleet Combat Training Center, Virginia Beach, Virginia facility.

3. Within thirty (30) days from the date this decision becomes final,

the agency shall consider taking disciplinary action against S1, S2 and

S3 as being responsible for the discriminatory treatment and harassment

perpetrated against complainant. The agency shall report its decision.

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.

4. Within thirty (30) days from the date this decision becomes final,

the agency shall expunge from complainant's personnel files all records

that relate to the PIP described herein.

5. The issues of compensatory damages and attorney's fees and costs

are REMANDED to the agency. The agency shall conduct a supplemental

investigation of the compensatory damages issue. Complainant,

through counsel, shall submit a request for attorney's fees and costs

in accordance with the Attorney's Fees paragraph set forth below.

No later than sixty (60) days after the agency's receipt of the

attorney's fees statement and supporting affidavit, the agency shall

issue a final agency decision addressing the issues of attorney's fees,

costs, and compensatory damages. The agency shall submit a copy of the

final decision to the Compliance Officer at the address set forth below.

6. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Child Development Center, Morale,

Welfare and Recreation Directorate, Fleet Combat Training Center, Virginia

Beach, Virginia facility copies of the attached notice. Copies of the

notice, after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty (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 at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/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 this

decision becoming final. 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 (K0501)

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 submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 (M0701)

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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 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 (R0900)

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) 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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

September 26, 2002

__________________

Date

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, D.C. 20507

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated which found that

a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The Child Development Center, Morale, Welfare and Recreation

Directorate, Fleet Combat Training Center, Virginia Beach, Virginia

facility Greenville, South Carolina facility (�Facility�), supports

and will comply with such Federal law and will not take action against

individuals because they have exercised their rights under law.

The Facility has been found to have discriminated on the basis

of national origin when supervisors: (1) harassed complainant from

September 1996 to March 1997; (2) reassigned complainant to an undesired

floater position; and (3) issued complainant a Work Performance Plan.

The Facility has been ordered to: (1) take reasonable and appropriate

actions to ensure that the complainant and no other employee is

subjected to a discriminatory hostile, intimidating and abusive work

environment because of national origin; (2) conduct a training session,

mandatory for all supervisors, relating to national origin discrimination

(including harassment); (3) consider taking disciplinary action against

the responsible management officials; (4) expunge from complainant's

personnel files all records that relate to the Work Performance Plan;

(5) award compensatory damages, if applicable; and (6) award reasonable

attorney's fees and costs, if applicable. The Facility will ensure that

officials responsible for personnel decisions and terms and conditions

of employment will abide by the requirements of all federal equal

employment opportunity laws and will not retaliate against employees

who file EEO complaints.

The Facility will not in any manner restrain, interfere, coerce, or

retaliate against any individual who exercises his or her right to

oppose practices made unlawful by, or who participates in proceedings

pursuant to, federal equal employment opportunity law.

Date Posted: _____________________ ____________________

Posting Expires: _________________

29 C.F.R. Part 16141 Complainant's reassignment to a clerical position

is not an issue herein.

2 However, S1, S2 and S3 deny that S3 had any knowledge of this incident

in their affidavits.

3 C1's testimony contradicts S2's statements.

4 We find no evidence in the record that religion or race were motivating

factors with respect to any of the claims by complainant.

5 Specifically, we note that C2 affirmed that management indicated that

they would have fired complainant if the inspectors heard her accent.

C2 also corroborated complainant's testimony that S3 and S2 pulled

complainant into their office on numerous occasions and constantly made

derogatory statements about complainant's accent while instructing

her not to speak to the children in Spanish. A number of witnesses

testified that complainant's verbal communication skills were fine and

that the parents loved her. C5 heard S3 make a derogatory statement about

complainant speaking Spanish to her husband. Despite S1, S2 and S3's

denials, witnesses heard S3 yelling at complainant on various occasions

in November and December 1996. Also despite S1, S2 and S3's denials,

witnesses heard management state that complainant could not be left

alone and that she was not worth anything. Also, despite management's

denials, numerous witnesses testified that complainant was subjected to

much closer scrutiny than her co-workers.

6 Upon review of the record, we find insufficient evidence of

discrimination based upon race or religion.

7 Not only are there inconsistencies with respect to management's

testimony related to the reassignment issue, there are inconsistencies

among management officials with respect to other issues herein as well.

8 We note that since the filing of this complaint, complainant has

transferred to a clerical position under a different organization within

the Department of the Navy. Complainant is not currently under the

supervision of S1, S2 or S3. In addition, we note that complainant has

not raised an allegation of discrimination with respect to this transfer.