The complainant was granted sick leave and transfer to another facility of his choice. While the racists were suspended, this was a huge injustice as the hatred was excessive.
Charles Posey v. United States Postal Service
01986619
7/10/01
.
Charles Posey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01986619
Agency No. 1I-554-0003-98
Hearing No. 260-98-7197X
DECISION
Complainant timely initiated an appeal from the agency’s final decision
concerning his 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. The appeal
is accepted pursuant to 29 C.F.R. § 1614.405. Complainant alleges he
was discriminated against on the bases of race (African-American), color
(black), and reprisal (prior activity), when, on September 24, 1997,
a hangman’s noose was discovered near his toolbox. For the following
reasons, the Commission AFFIRMS the agency’s final decision.
The record reveals that complainant, a Maintenance Mechanic, at the
agency’s Minneapolis Post Office facility, filed a formal EEO complaint
with the agency on November 3, 1997, alleging that the agency had
discriminated against him as referenced above. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The record reveals that when complainant arrived at work on September
24, 1997, he found a hangman’s noose hanging near his tool box.
Complainant’s fellow maintenance workers who were also present at the
time of the discovery commented negatively on the noose, and one of the
co-workers cut it down and threw it into the garbage.
Complainant immediately went to the Union office, and then discussed the
incident with his supervisor. Complainant’s supervisor recommended
that complainant go to the employee assistance office and see a
counselor because he seemed upset. Complainant’s supervisor also
advised complainant to file an incident report. When complainant later
approached his supervisor and told him he was still upset about the noose,
complainant’s supervisor granted him administrative leave and complainant
went home. The next day, Employee Assistance Counselors met with the
Maintenance staff to discuss the inappropriateness of the noose.
After complainant’s supervisor was notified about the noose, he also
informed his chain of command. The Maintenance Manager ordered that
an investigation into the incident be conducted by the Managers on all
three shifts. During the investigation, a Caucasian co-worker on a
different shift than complainant, admitted that he tied the hangman’s
noose. The record reveals he explained that he saw the rope tied into a
slip-knot, and decided he could tie the knot better. He averred that he
had always had a “fascination” with knots, and that he did not think he
did anything wrong. Furthermore, when he finished the knot, he placed
it back where he found the rope, near the toolboxes.
On September 30, 1997, the co-worker was issued a seven-day suspension
as discipline for the incident. On October 22, 1997, a notice explaining
the agency’s zero tolerance for violence was posted.
The AJ concluded that complainant failed to establish a prima facie case
of racial harassment. Specifically, the AJ found that complainant failed
to demonstrate that this one incident rose to the level of a hostile work
environment. The AJ found the noose was not directed to complainant’s
attention, and when a co-worker discovered it, he immediately cut it
down and threw it into the garbage.
Assuming, arguendo, that complainant was subjected to a hostile work
environment, the AJ found that agency officials took prompt remedial
action such that there was no basis of imputing liability to the
agency. Specifically, complainant’s supervisor immediately informed his
supervisor, who conducted an investigation. That same day, the individual
responsible admitted he tied the noose. Management then suspended the
individual for seven days. Furthermore, employee assistance counselors
spoke with the Maintenance staff and management reiterated its zero
tolerance for violence policy. Complainant did not allege there were
any subsequent acts of harassment.
As for complainant’s reprisal allegation, complainant alleged that the
noose was left for him because of a class action filed against the agency
in 1991 for maintaining a racially hostile work environment through
the display of racist graffiti, nooses and other offensive materials.
The AJ found no evidence that complainant was part of the class action.
Therefore, the AJ found complainant failed to establish a prima facie
case of retaliation.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non moving party’s favor. Id. A disputed issue of
fact is “genuine” if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the AJ’s
decision, in all material respects, properly summarized the relevant facts
and referenced the appropriate regulations, policies, and laws. We do,
however, disagree with the AJ’s finding that this incident was not severe
or pervasive enough on its own to constitute a hostile work environment.
Although a single instance of harassment usually would not rise to the
level of hostile work environment, a single, unusually severe incident
of harassment may be sufficient to constitute a Title VII violation.
See EEOC Policy Guidance on Current Issues of Sexual Harassment, EEOC
Notice No. 915-050 (March 19, 1990). Drawing all reasonable inferences in
complainant’s favor, we find that the noose was directed at complainant
since it was left in complainant’s work area. In that regard, we find
complainant’s discovery of a noose by his work area was severe enough
to alter his employment and created an abusive working environment.
In particular, we note the noose is a severely violent symbol such that
complainant reasonably felt threatened by his discovery.
Nonetheless, despite our strong objections to a noose in the workplace,
we agree with the AJ’s finding that complainant failed to establish
a basis of imputing employer liability for his co-worker’s actions.
When the agency learned of the noose, it took prompt action by conducting
an investigation, issuing discipline, and ordering counseling. Complainant
did not allege that this event was part of a pattern of harassment,
nor did he allege that further harassment continued. Furthermore,
documentation in the record reveals that subsequent to his discovery
of the noose, complainant was out on sick leave for an extended period
of time. When he returned, the agency placed him in at least two other
facilities. Complainant’s request to transfer to the St. Paul facility
was eventually granted. As for complainant’s claim of retaliatory
harassment, we note that complainant failed to present evidence that he
participated in prior EEO activity, or that any of the agency’s actions
were in retaliation for complainant’s prior EEO activity. We discern no
basis to disturb the AJ’s decision. Therefore, after a careful review of
the record including arguments and evidence not specifically addressed
in this decision, we AFFIRM the agency’s final decision.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
7/10/01
Date
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 Assistant
