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In EEOC Appeal No. 2021001898, Complainant appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) the State Department’s January 7, 2021 dismissal of his complaint alleging 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 unnamed complainant works at the Office of Language Services within the Bureau of Administration, one of the 13 offices under the Under Secretary for Management.

Below from the EEOC decision dated April 19, 2021:

Complainant is an Asian American, who immigrated from the People’s Republic of China. Complainant alleged that one of his subordinates harassed him on the bases of his race (Asian) and national origin (Chinese) by engaging in various types of unwelcome conduct, including, but not limited to:

• • • disparaging Chinese immigrants;
    • mocking Complainant’s language and communication skills due to his perceived foreign accent; and
    • interfering with work performance by engaging in efforts to subordinate Complainant, such as regularly skipping meetings, walking out on meetings just as Complainant was starting to talk, not doing assignments, finishing assignments late, not acknowledging Complainant’s emails, and trying to bypass Complainant’s authority by attempting to report directly to Complainant’s superiors.

Complainant also alleged that his supervisors were aware of this subordinate’s unwelcome conduct but failed to effectively stop it. Assuming the allegations of the subordinate’s unwelcome conduct to be true, was the subordinate’s conduct sufficiently severe or pervasive to alter the conditions of Complainant’s employment such that Complainant stated an actionable claim of discriminatory harassment in violation of Title VII?

Background:

At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Branch Chief and Supervisory Diplomatic Interpreter, GS-15, at the Agency’s Office of Operations, Office of Language Services, Non-European Language Branch, in Washington, D.C.

On July 10, 2020, Complainant filed a formal EEO complaint alleging that he was subjected to ongoing harassment/a hostile work environment on the bases of race (Asian) and national origin (Chinese) by one of his subordinates. Complainant further alleged that management officials were aware of the harassment but failed to adequately address it.

The subordinate was assigned to Complainant’s branch on February 3, 2020, after completing a 15-year stint at the Agency’s U.S. Embassy in Beijing, China. Complainant and his supervisors, the Division Chief and the Office Director, were already familiar with the subordinate, whose employment with the Agency dated back to the 1980s.

In his EEO complaint, Complainant alleged that, during the relevant time frame, the Division Chief and the Office Director were aware of several, if not all, of the subordinate’s alleged harassing actions, which included:
[…]
4. Beginning February 3, 2020, and ongoing, the subordinate regularly attempted to report directly to the Division Chief and Office Director instead of Complainant, disregarding their repeated instructions that he report through his line of supervision.

5. Beginning February 3, 2020, and ongoing, nearly all of the subordinate’s communication toward Complainant was disrespectful, such as “very rude emails.”

6. Beginning February 3, 2020, and ongoing, the subordinate continuously thwarted Complainant’s supervision by, among other things, seldom acknowledging Complainant’s emails, ignoring deadlines, and deliberately failing to satisfactorily complete assignments.

7. Between February 3, 2020 and July 10, 2020, the subordinate attended four out of the 40 meetings Complainant hosted or co-hosted as the Branch Chief, and in at least one instance (a Branch-wide staff meeting Complainant called for March 9, 2020), the subordinate made a point of leaving the office in front of Complainant’s other subordinates when the staff meeting was about to start.

8. The subordinate made fun of Complainant’s phrasing in an email he sent requesting an assignment from the subordinate, even though the phrasing, the result of Complainant’s non-native English, did not impact the content of the message.

9. The subordinate pretended not to understand Complainant’s pronunciation of the phrase “Go Virtual” and asked him to repeat himself multiple times in a manner that made Complainant self-conscious and uncomfortable.

10. From March 17, 2020 through July 10, 2020, the subordinate completed only two of the 10 assignments Complainant had given him despite Complainant’s emails and extensions.

11. On July 8, 2020, during a phone meeting about the subordinate’s Mid-Year Review, the subordinate parsed Complainant’s words, such as “work” and “assignment,” and then told Complainant, “you need to improve your English and learn how to make yourself clearer in the future.”

12. On July 8, 2020, during the Mid-Year Review phone meeting, the subordinate revealed that he was aware that Complainant had initiated an EEO complaint, accused Complainant of playing “the race card”, and told Complainant, “don’t play that game with me.”

The EEOC decision notes that in its final decision, the State Department dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. “In summary fashion, the Agency determined the alleged conduct was not sufficiently severe or pervasive to state a viable claim of harassment in violation of Title VII.”

EEOC findings determine that there is a viable claim of discriminatory harassment:

After careful review of the record, we determine that the allegations in this complaint, taken together, state a viable claim of discriminatory harassment. Nearly all of the alleged harassing incidents occurred on or after February 3, 2020, within the supervisor/subordinate relationship between Complainant and the subordinate, which involved frequent interaction and directly impacted Complainant’s work performance. As for the allegations of events that occurred before Complainant became the subordinate’s supervisor, they can be considered as additional evidence in support of Complainant’s overall harassment claim.

The EEOC notes that the “Severity or Pervasiveness of Subordinate’s Alleged Harassing Conduct” is  generally actionable “if it is sufficiently severe or pervasive to alter the conditions of the complainant’s employment.” Also that the severity or pervasiveness may be determined, in part, by examining management’s responses to the alleged harassment.

Complainant has alleged that his supervisors were aware of the subordinate’s harassing conduct towards him but failed to effectively stop it. In fact, Complainant alleged that the harassing behavior of the subordinate continued without abatement through the filing of his complaint.

A complainant may demonstrate the necessary severity or pervasiveness to state a harassment claim by alleging that the harassing actions unreasonably interfered with his or her work performance. 2 In cases involving subordinate harassment, the impact on work performance typically manifests itself by reducing the complainant’s effectiveness as a supervisor or undermining the complainant’s credibility or authority in the eyes of other subordinates or coworkers. See, e.g., Opal; Gilberto S. v. Dep’t of the Air Force, EEOC Appeal No. 0120151198 (Mar. 11, 2016). Here, Complainant alleged that the subordinate continually undermined his authority as a supervisor, including with other employees witnessing his conduct. Taking Complainant’s allegations together and assuming them to be true, we determine that the subordinate essentially refused to recognize Complainant as his supervisor, which unreasonably and directly interfered with Complainant’s work performance. For example, Complainant alleged that the subordinate continually reported to Complainant’s supervisors instead of Complainant, rarely acknowledged Complainant’s emails or satisfactorily completed assignments, attended only four out of 40 meetings Complainant hosted or co-hosted during the relevant time frame, and completed only two out of 10 assignments.
[…]
According to Complainant, these alleged harassing acts drained Complainant’s time, as he describes sending “dozens” of emails to try and get the subordinate to complete his assignments. Complainant alleged that the subordinate’s conduct impacted Complainant’s own productivity and effectiveness, as well as the morale of the team. See, e.g., Opal; Gilberto S. v. Dep’t of the Air Force, EEOC Appeal No. 0120151198 (Mar. 11, 2016).

The subordinate’s alleged behavior occurred in the context of a nation-wide increase in reports of harassment against Asian Americans. 5 Asian American workers face multiple sources of discrimination. One source is language or accent discrimination. Perceptions of Asian accents may negatively affect the communication skills and perceived competence of Asian American workers. […] Another source of discrimination is the perception of Asian Americans as “forever foreign.” Perceptions of Asian Americans as foreign can negatively impact assessments of communication ability, competence and, importantly, trustworthiness. Id.

The EEOC decision says that “if proven true, we conclude that the actions alleged by Complainant are sufficiently severe and pervasive to state a viable claim of discriminatory harassment on the bases of race (Asian) and national origin (Chinese) that requires investigation and further processing.”

The EEOC also brings up reprisal: “Although Complainant did not raise reprisal as a basis for discrimination in his complaint, the harassment described in allegation 12, on its face, could be found reasonably likely to deter Complainant or others from engaging in protected activity.

In the context of a contentious hour-long phone meeting, where he already made derogatory remarks about Complainant’s English proficiency, S1 notified Complainant that he was aware of Complainant’s EEO activity. The phrase, “don’t play that game with me,” and accusation of “playing the race card” in reference to Complainant’s EEO activity were stated in a manner that that could be found reasonably likely to deter EEO activity. There is no evidence that management took any steps to prevent or address the retaliatory conduct, which, along with S1’s apparently cordial relationship with Complainant’s supervisors, further supports that these statements, while made by a subordinate, state a viable claim of retaliation.

The EEOC reversed the State Department’s final decision which dismissed the Complainant’s complaint and remanded the case to the Agency for “further processing” in accordance with its decision and Order:

ORDER (E0618) The Agency is ordered to process the remanded complaint in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled “Implementation of the Commission’s Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.

The full decision is available here. Note that 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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