Although based on a single incident, the AJ found that a noose hanging in the workplace
is a sufficiently severe racial symbol with violent implications that equates to a death threat.
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, or religion
is unlawful. See Keller v. United States Postal Serv., EEOC Appeal
No. 01A03119 (Apr. 25, 2003).
Note: This case with a single incident is very important, as it points out a condition where 1 symbol of terror is enough to classify a discrimination. We also learned that there were other incidences of discrimination, or that an environment of discrimination existed.
A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the
conduct is severe. See Burlington Indus. v. Ellerth, 524 U.S. 742
(1998).
When alleging harassment, a complainant must show that the
conduct at issue was both (1) motivated by a protected factor; and
(2) sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive and hostile working environment.
This standard requires an objectively hostile or abusive environment –
one that a reasonable person would find hostile or abusive – as well as
a subjectively perceived abusive environment by the victim.
See Harris
v. Forklift Sys., Inc. 510 U.S. 17, 23 (1993). Whether the harassment is
sufficiently severe to constitute unlawful employment discrimination must
be determined by looking at all the circumstances, including the frequency
of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee’s work performance.
Note: In my personal EEOC case, a chain of discrimination’s occurred that unreasonable interfered with my work performance. My case also featured “symbols of terror” directed towards me, and also contained direct evidence in that the perpetrators admitted to the hostilities. In my case I was able to document several incidences, event though the FAD said they were not a discrimination and classified as isolated incidences. My appeal process is ongoing.
See id.
After a careful review of the record, the Commission finds that the
AJ’s findings of fact are supported by substantial evidence. The AJ was
particularly persuaded by the evidence she heard at the hearing regarding
the pre-existing racial climate at the agency. Three witnesses, in
addition to complainant, all testified that the attitudes of workers at
the agency were negative and intolerant of racial, ethnic and religious
diversity. See HR at 75:23-76:6; 100:3-101:9; 183:3-18.
The evidence
further supports the finding that the appearance of a hangman’s noose
in the middle of the workspace of African-American employees in and
of itself, even discounting the charged racial climate of the agency,
created a hostile work environment for complainant.
There is no question
that a noose evokes an image, particularly among African-Americans,
of a disgraceful past of extreme violence and racial bigotry. As the
AJ noted, the Commission has found that a noose in the workplace is a
single event that directly involves a threat to life. Reasonable minds
are sure to agree, finding a noose hanging in one’s workspace is cause
to feel physically threatened, particularly if one is an African-American
and working in a racially charged environment.
The question that thus arises is whether, given what happened next,
the agency is liable. To avoid liability, the agency must show one of
the following: (1) the acts or conduct complained of did not occur;
(2) the acts or conduct complained of were not “unwelcome;” (3)
the alleged harassment was not “sufficiently severe or pervasive” to
alter the conditions of complainant’s employment and create an abusive
working environment; (4) immediate and appropriate corrective action was
taken as soon as the employer was put on notice; and/or (5) there is no
basis for imputing liability to the employer under agency principles.
See Quintero v. United States Postal Serv., EEOC Appeal No. 01960836
(Apr. 21, 1998); see also Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986). In regard to (4), we note that our regulations provide that
“[w]ith respect to conduct between fellow employees, an employer is
responsible for acts of harassment in the workplace where the employer
knows or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action.” 29 C.F.R. § 1604.11(d).
When an employer becomes aware of alleged harassment, the employer has the
duty to investigate such charges promptly and thoroughly. See Rodriguez
v. Dep’t of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29, 1996).
It is true that the appropriate remedial action depends on the particular
facts of the case; more specifically, the severity and persistence
of the harassment and the effectiveness of any initial remedial steps.
See Taylor v. Dep’t. of the Air Force, EEOC Request No. 05920194 (July 8,
1992).
The agency concedes that the noose is evidence of harassment, but
discounts its effects stating that the harassment that was actually
experienced was very short as a result of its remedial efforts.
The AJ disagreed and concluded that the agency’s efforts were
woefully inadequate.
Although the noose was found in the workspace of
African-American workers, the agency failed to conduct an investigation
into the incident to identify and punish the perpetrator(s). As discussed
above, the AJ emphasizes the fact that the agency discarded the noose
and then justified the failure to investigate on the fact that it no
longer had the noose as evidence.
We agree with the AJ. Having reviewed the evidence on record,
we find that it substantially supports the AJ’s findings of fact.
The agency’s actions were insufficient, particularly in light of the
racial tensions that already existed at the facility. The agency cannot
avoid the responsibility of investigating severe incidents such as this
by simply discarding the evidence. The agency could have done more to
try to identify the perpetrator(s) and drive home the understanding among
employees that offensive behavior will not be tolerated. It could have
interviewed employees; held department-wide talks with all management
present. Management could have and should have come up with means to
convey their message more strongly. The record shows that the day after
the incident the first line supervisors were informed of what occurred and
were instructed to admonish subordinate employees that the agency would
not tolerate acts of bigotry. It took about a week for the facilities
department to be apprised of the incident. Given the severity of the
incident, a week is too long. Moreover, the message was not fully
communicated as it should have been. An employee-witness testified
at the hearing that he was never formally briefed about the incident.
See HT 101:10-202:5. Thus, we find that the record supports the AJ’s
finding.
With regard to the agency’s argument that the AJ erred in making incorrect
findings of fact, we disagree. Although there is some dispute as to who
spoke to whom when, we decline to address those particulars because the
record clearly shows that even accepting the agency’s version of events
the agency failed to carry out a thorough inquiry into the incident.
Again, the evidence substantially supports the AJ’s findings that the
agency is liable for the hostile work environment harassment that existed
at the facility.
Note: In my EEOC case, the agency investigated and noted that the “symbols of terror” directed specifically to the complainant, were only meant as a joke. The agency was completely desensitized to the affect of the “death threat” had on the complainant. No follow up, or report of findings were given to complainant, other than telling him that the discrimination was only a joke.
Note: Agency’s opinion was a discriminatory response of its own, that psychologically affected the complainant, who fell ill for 2 weeks, upon hearing that the discrimination was a joke. Permanent mental illness occurred from the continued incidences of religious hate, and the agency not taking the complaints and request for accommodation seriously.
Note: With so many more components of terror, illness and wrongdoing by agency, there can be no similarity that matches the outcome award.
Remedies
With regard to damages, complainant appeals the AJ’s award to include
interest and supplemental attorney fees. As mentioned above, the AJ
awarded complainant $35,000 in non-pecuniary compensatory damages,
$1,970.65 in costs associated with the litigation and $34,505.87 in
attorneys fees.
We note that a decision regarding damages is a question
of fact and, as such, the AJ’s post-hearing finding will be upheld if
supported by substantial evidence. See 29 C.F.R. § 1614.405(a); Hernandez
v. United States Postal Serv., EEOC Appeal No. 07A30005(July 16, 2004).
Again, having reviewed the evidence on damages in the record, we find
that it properly supports the AJ’s award. It is neither monstrously
excessive and it is consistent with awards in similar cases. See Jackson
& Beaner v. United States Postal Serv., EEOC Appeal Nos. 01972555 &
01972556 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F.2d
827, 848 (7th Cir. 1989). We find no error in the AJ’s damages award
and decline to award interest. Finally, complainant has presented no
persuasive evidence as to what supplemental fees he may be entitled to
receive. Complainant’s appeal is devoid of any support of its claim.
Accordingly, finding that the AJ’s decision finding discrimination is
supported by substantial evidence, we discern no basis to disturb it.
We reverse the agency’s final order and direct the agency to comply in
accordance with the Order below.
ORDER
To the extent it has not already done so and within thirty (30) days of
this decision becoming final, the agency shall:
(1) Pay complainant non-pecuniary compensatory damages in the amount of
$35,000.00;
(2) Restore all of complainant’s annual leave and/or sick leave taken
as a result of the harassment;
(3) Reimburse complainant reasonable costs associated with the litigation
of this complaint in the amount of $1,970.65;
(4) Pay complainant’s attorney reasonable attorney’s fees in the amount
of $34,505.87;
(5) Take all necessary corrective, curative, or preventive action
to ensure that similar violations of the law will not recur. See 29
C.F.R. § 1614.501(a)(2); and
(6) The agency shall provide a minimum of eight hours of EEO training,
with special emphasis on the agency’s obligations under Title VII,
to the employees, including managerial personnel, of the Facilities
Maintenance Department in Cherry Point, N.C.
(7) The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. 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. If any of the responsible
management officials have left the agency’s employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its Cherry Point, North Carolina
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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:
February 10, 2006
______________________________ ______________________________
Carlton M. Hadden, Director Date
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________ ______________________________
Date Equal Opportunity Assistant0 1The rule on vicarious liability
set forth by the Supreme Court in Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998) and in Faragher v. City of Boca Raton, 524 U.S. 775
(1998) applies to harassment based on race, color , sex (whether or not
sexual in nature), religion, national origin, protected activity, age
or disability. Although Eller and Faragher specifically involved sexual
harassment claims, we routinely apply the holdings to cases of harassment
on different bases because the majority analysis in both cases drew upon
the liability standards for harassment on other protected bases.
Jimmy D. Tootle v. Department of the Navy
07A40127
February 10, 2006
.
Jimmy D. Tootle,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 07A40127
Agency No. DON 280-0191-00
Hearing No. 140-2001-08245
DECISION
The agency timely initiated an appeal rejecting the EEOC Administrative
Judge’s (AJ) decision concerning complainant’s equal employment
opportunity (EEO) 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. Complainant filed a cross appeal.
The appeals are accepted and consolidated under Appeal No. 07A40127
pursuant to 29 C.F.R. § 1614.405. For the following reasons, the
Commission reverses the agency’s final order.
The record reveals that complainant, a Carpenter at the agency’s Marine
Corp Air Station in Cherry Point, North Carolina, filed a formal EEO
complaint on October 31, 2000, alleging that the agency harassed him
on the basis of race (African-American) when management failed to take
appropriate action following the discovery of a “hangman’s noose” in
complainant’s work area on July 18, 2000.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding discrimination. The AJ concluded that complainant had shown that
he had been subjected to a hostile work environment and was entitled to
remedies.
Statement of Facts
Briefly summarized, the pertinent facts are as follows. On July 18 or 19,
2000, complainant discovered in his work area a rope tied and taped in
a way that resembled a noose. See Report of Investigation (ROI) at 53,
164 and 171. It did not have complainant’s name or picture and it was not
located in a place that was exclusive to complainant, such as his locker,
toolbox or work vehicle. See Hearing Tr. (HT) at 225-26. Instead, the
noose was attached to the vinyl rack in Work Center 60. See id. at 224;
ROI at 92. Complainant immediately reported the incident to his first
line supervisor (S1) and requested to speak to the third line supervisor
(S3) about it. See TR at 224. S3 was unable to meet with complainant
at that moment and made an appointment to see him that afternoon.
See id. at 209. S3 asked S1 whether he knew who had placed the noose on
the vinyl rack and whether it was specifically directed at complainant.
Upon learning that no one knew anything about who placed the noose or why,
S3 instructed S1 to remove it and tell employees that such behavior would
not be tolerated. See ROI at 98, 100. Complainant was not consulted in
the decision to remove the noose and when he learned that S3 wanted it
removed, complainant resisted. He wanted to somehow document the noose
as potential evidence and asked to speak to the Deputy EEO Officer before
any further action was taken. S1 complied, but upon finding that the EEO
Officer was unavailable, S1 removed the noose. See HT at 119, 120, 227.
Affected by the day’s events, complainant asked to leave work.
He requested administrative leave but was allowed only to take annual
leave. See TR at 143. Before leaving, he was finally able to speak
to the EEO Officer and told her about the noose. He also told her that
back in 1999 he had found another noose in the work area, but that he had
not reported that prior incident to anyone. See HT at 22; ROI at 143.
Having gone home, complainant cancelled the appointment he had with S3
and was out of the office until July 24, 2000.
We note that prior to the incident complainant had been diagnosed
with psychological troubles. He is a Vietnam veteran who developed
Post-Traumatic Stress Disorder. See HT at 131. He had been undergoing
psychological treatment and was on anxiety and sleep medication.
See id. at 139-40. When complainant left work the day of the incident
he went to see his therapist. See id. at 120.
The next day, S1 informed the second line supervisor (S2) about the
incident. See ROI at 90. On July 20, 2000, S2 held a meeting of first
line supervisors to inform them of what had happened. He explained that
such behavior was wrong and would not be tolerated, asked the supervisors
to convey this sentiment to all employees, and said “that if they could
find out who did it, [he] would like to know.” Id. The extent of the
agency’s subsequent actions are in dispute.
Procedural History
As mentioned above, the AJ concluded that the agency had subjected
complainant to a racially hostile work environment. Although based on
a single incident, the AJ found that a noose hanging in the workplace
is a sufficiently severe racial symbol with violent implications
that equates to a death threat. As such, the incident altered the
condition of complainant’s employment. The AJ further determined
that not all supervisors relayed the information about the noose to
their subordinates as instructed, and that those who had complied, did
so slowly. The AJ characterized the agency’s action in response to the
incident as“lackadaisical” and “inadequate.” The agency, according to
the AJ, should not have discarded the noose, but even though it had,
it still should have asked questions and done more to investigate
the incident. The little that it did do was not prompt and showed
a lack of concern over the serious nature of the offense. Lastly,
the AJ found it incredulous that the burden of initiating a subsequent
meeting to learn of the agency’s actions would fall on the complainant.
Management should have been the one to follow-up thoroughly.
The AJ ordered the agency to: (1) pay $35,000.00 in non-pecuniary
compensatory damages; (2) restore complainant’s annual and sick leave;
(3) pay $1,970.65 for the costs of litigation; (4) pay $34,505.87 for
attorneys’ fees; (5) take corrective action to ensure that similar
violations do not recur; (6) provide racial harassment training to all
employees of the Facilities Maintenance Department at Cherry Point, N.C.,
and (7) post a notice that the agency was found to have discriminated
against an employee at the facility.
The agency’s final order rejected the AJ’s decision. In its appeal,
the agency argues first that the AJ erred by not looking at the
effectiveness of the agency’s actions. The agency maintains that it
took immediate corrective and effective action because complainant
admitted that after the events in 2000, he never saw another noose in
the workplace. According to the agency, it successfully put an end
to the harassment. Second, the agency argues that the AJ erred in
imputing a duty to investigate on the agency. It suggests that the
AJ applied an improper standard by referring to guidance and case law
on sexual harassment.<0> Even assuming that is the correct standard,
the authority only states that an agency “should” investigate, it does
not say that an agency “must” investigate. Its only burden is to
take prompt action that is reasonably calculated to end harassment.
According to the agency, that is what it did. As the noose had been
discarded and there was no evidence as to who the perpetrator was,
a successful investigation would not have been feasible or productive.
Third, the agency argues that the AJ made incorrect findings of fact.
There is simply not enough evidence to prove that the supervisors did
not promptly discuss the incident with the employees and that the agency
did not properly follow-up on their efforts. According to the agency,
the AJ ignored evidence that shows that management acted properly within
a week of the incident. See generally Agency’s Brief in Support of its
Appeal of the Administrative Judge’s Decision.
Complainant also appeals the AJ’s decision to the extent that he believes
the damage award should include interest and supplemental attorney fees.
See Complainant’s Brief in Support of Appeal. In response to the
agency’s appeal, complainant contends that there was no error in how
the AJ evaluated the agency’s response to the incident. The AJ was
correct to compare the agency’s response to the responses of other
employers facing similar situations. Here, the agency failed to even
try to identify the perpetrator. The fact that no more nooses were found
after the incident does not necessarily mean that the agency adequately
addressed the hostile environment that existed. According to complainant,
the agency had a duty to investigate the incident, even if it no longer
had evidence of the noose. Given the hostile environment that already
existed and the discovery of such a severely violent racial symbol,
true remedial action required an investigation. Legal Analysis
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, or religion
is unlawful. See Keller v. United States Postal Serv., EEOC Appeal
No. 01A03119 (Apr. 25, 2003). A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the
conduct is severe. See Burlington Indus. v. Ellerth, 524 U.S. 742
(1998). When alleging harassment, a complainant must show that the
conduct at issue was both (1) motivated by a protected factor; and
(2) sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive and hostile working environment.
This standard requires an objectively hostile or abusive environment –
one that a reasonable person would find hostile or abusive – as well as
a subjectively perceived abusive environment by the victim. See Harris
v. Forklift Sys., Inc. 510 U.S. 17, 23 (1993). Whether the harassment is
sufficiently severe to constitute unlawful employment discrimination must
be determined by looking at all the circumstances, including the frequency
of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee’s work performance. See id.
After a careful review of the record, the Commission finds that the
AJ’s findings of fact are supported by substantial evidence. The AJ was
particularly persuaded by the evidence she heard at the hearing regarding
the pre-existing racial climate at the agency. Three witnesses, in
addition to complainant, all testified that the attitudes of workers at
the agency were negative and intolerant of racial, ethnic and religious
diversity. See HR at 75:23-76:6; 100:3-101:9; 183:3-18. The evidence
further supports the finding that the appearance of a hangman’s noose
in the middle of the workspace of African-American employees in and
of itself, even discounting the charged racial climate of the agency,
created a hostile work environment for complainant. There is no question
that a noose evokes an image, particularly among African-Americans,
of a disgraceful past of extreme violence and racial bigotry. As the
AJ noted, the Commission has found that a noose in the workplace is a
single event that directly involves a threat to life. Reasonable minds
are sure to agree, finding a noose hanging in one’s workspace is cause
to feel physically threatened, particularly if one is an African-American
and working in a racially charged environment.
The question that thus arises is whether, given what happened next,
the agency is liable. To avoid liability, the agency must show one of
the following: (1) the acts or conduct complained of did not occur;
(2) the acts or conduct complained of were not “unwelcome;” (3)
the alleged harassment was not “sufficiently severe or pervasive” to
alter the conditions of complainant’s employment and create an abusive
working environment; (4) immediate and appropriate corrective action was
taken as soon as the employer was put on notice; and/or (5) there is no
basis for imputing liability to the employer under agency principles.
See Quintero v. United States Postal Serv., EEOC Appeal No. 01960836
(Apr. 21, 1998); see also Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986). In regard to (4), we note that our regulations provide that
“[w]ith respect to conduct between fellow employees, an employer is
responsible for acts of harassment in the workplace where the employer
knows or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action.” 29 C.F.R. § 1604.11(d).
When an employer becomes aware of alleged harassment, the employer has the
duty to investigate such charges promptly and thoroughly. See Rodriguez
v. Dep’t of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29, 1996).
It is true that the appropriate remedial action depends on the particular
facts of the case; more specifically, the severity and persistence
of the harassment and the effectiveness of any initial remedial steps.
See Taylor v. Dep’t. of the Air Force, EEOC Request No. 05920194 (July 8,
1992).
The agency concedes that the noose is evidence of harassment, but
discounts its effects stating that the harassment that was actually
experienced was very short as a result of its remedial efforts.
The AJ disagreed and concluded that the agency’s efforts were
woefully inadequate. Although the noose was found in the workspace of
African-American workers, the agency failed to conduct an investigation
into the incident to identify and punish the perpetrator(s). As discussed
above, the AJ emphasizes the fact that the agency discarded the noose
and then justified the failure to investigate on the fact that it no
longer had the noose as evidence.
We agree with the AJ. Having reviewed the evidence on record,
we find that it substantially supports the AJ’s findings of fact.
The agency’s actions were insufficient, particularly in light of the
racial tensions that already existed at the facility. The agency cannot
avoid the responsibility of investigating severe incidents such as this
by simply discarding the evidence. The agency could have done more to
try to identify the perpetrator(s) and drive home the understanding among
employees that offensive behavior will not be tolerated. It could have
interviewed employees; held department-wide talks with all management
present. Management could have and should have come up with means to
convey their message more strongly. The record shows that the day after
the incident the first line supervisors were informed of what occurred and
were instructed to admonish subordinate employees that the agency would
not tolerate acts of bigotry. It took about a week for the facilities
department to be apprised of the incident. Given the severity of the
incident, a week is too long. Moreover, the message was not fully
communicated as it should have been. An employee-witness testified
at the hearing that he was never formally briefed about the incident.
See HT 101:10-202:5. Thus, we find that the record supports the AJ’s
finding.
With regard to the agency’s argument that the AJ erred in making incorrect
findings of fact, we disagree. Although there is some dispute as to who
spoke to whom when, we decline to address those particulars because the
record clearly shows that even accepting the agency’s version of events
the agency failed to carry out a thorough inquiry into the incident.
Again, the evidence substantially supports the AJ’s findings that the
agency is liable for the hostile work environment harassment that existed
at the facility.
Remedies
With regard to damages, complainant appeals the AJ’s award to include
interest and supplemental attorney fees. As mentioned above, the AJ
awarded complainant $35,000 in non-pecuniary compensatory damages,
$1,970.65 in costs associated with the litigation and $34,505.87 in
attorneys fees. We note that a decision regarding damages is a question
of fact and, as such, the AJ’s post-hearing finding will be upheld if
supported by substantial evidence. See 29 C.F.R. § 1614.405(a); Hernandez
v. United States Postal Serv., EEOC Appeal No. 07A30005(July 16, 2004).
Again, having reviewed the evidence on damages in the record, we find
that it properly supports the AJ’s award. It is neither monstrously
excessive and it is consistent with awards in similar cases. See Jackson
& Beaner v. United States Postal Serv., EEOC Appeal Nos. 01972555 &
01972556 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F.2d
827, 848 (7th Cir. 1989). We find no error in the AJ’s damages award
and decline to award interest. Finally, complainant has presented no
persuasive evidence as to what supplemental fees he may be entitled to
receive. Complainant’s appeal is devoid of any support of its claim.
Accordingly, finding that the AJ’s decision finding discrimination is
supported by substantial evidence, we discern no basis to disturb it.
We reverse the agency’s final order and direct the agency to comply in
accordance with the Order below.
ORDER
To the extent it has not already done so and within thirty (30) days of
this decision becoming final, the agency shall:
(1) Pay complainant non-pecuniary compensatory damages in the amount of
$35,000.00;
(2) Restore all of complainant’s annual leave and/or sick leave taken
as a result of the harassment;
(3) Reimburse complainant reasonable costs associated with the litigation
of this complaint in the amount of $1,970.65;
(4) Pay complainant’s attorney reasonable attorney’s fees in the amount
of $34,505.87;
(5) Take all necessary corrective, curative, or preventive action
to ensure that similar violations of the law will not recur. See 29
C.F.R. § 1614.501(a)(2); and
(6) The agency shall provide a minimum of eight hours of EEO training,
with special emphasis on the agency’s obligations under Title VII,
to the employees, including managerial personnel, of the Facilities
Maintenance Department in Cherry Point, N.C.
(7) The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. 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. If any of the responsible
management officials have left the agency’s employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its Cherry Point, North Carolina
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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:
February 10, 2006
______________________________ ______________________________
Carlton M. Hadden, Director Date
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________ ______________________________
Date Equal Opportunity Assistant0 1The rule on vicarious liability
set forth by the Supreme Court in Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998) and in Faragher v. City of Boca Raton, 524 U.S. 775
(1998) applies to harassment based on race, color , sex (whether or not
sexual in nature), religion, national origin, protected activity, age
or disability. Although Eller and Faragher specifically involved sexual
harassment claims, we routinely apply the holdings to cases of harassment
on different bases because the majority analysis in both cases drew upon
the liability standards for harassment on other protected bases.
