It is undisputed that the noose incident occurred on January 4, 2007. A single incident involving a hangman’s noose is sufficiently severe to alter the terms and conditions of one’s employment and to create an abusive work environment. Posey v. U.S. Postal Serv., EEOC Appeal No. 01986619 (July 10, 2001). Here, where a noose which evokes a certain racial history was placed around Complainant’s neck, the conduct was severe enough to constitute harassment. The action of Employee A was clearly inappropriate.
The Commission next considers the Agency’s liability. An Agency is liable for harassment by a co-worker or other non-supervisor when it “knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action.” See 29 C.F.R. § 1604.11(d). Whether the Agency’s action is appropriate depends upon “the severity and persistence of the harassment and the effectiveness of any initial remedial steps.” Taylor v. Dept. of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the Agency’s conduct in response to harassment depends upon “the particular facts of the case–the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.” Owens v. Department of Transportation, EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment. When an employer becomes aware of alleged harassment, the employer has the duty to investigate such charges promptly and thoroughly. See Rodriguez v. Dept. of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29, 1996. 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, EEOC Request No. 05920194.
Note: Keeping the incidences private, and not following up remedial action with tolerance training of employees, is not following through a proper remedial action.
We agree with the AJ’s finding that the Agency was not liable because Complainant failed to establish a basis for imputing Agency liability. The Agency took prompt and appropriate remedial action. Here, the incident occurred on January 4. The Agency did not become aware of the incident until January 5, the following day which was a Friday when Complainant herself the supervisor for the unit, made the Agency aware and asked that she be allowed to talk first with Employee A. Complainant did not work during the weekend and the Agency began its investigation on Monday, January 8, at Complainant’s request. On January 8, the Agency removed Employee A, who apologized to Complainant, from the workplace.
The Agency reported the incident to Postal Inspectors who began their investigation on January 11. We find that under the circumstances of this case, the Agency began its investigation promptly and took action to prevent the harassment by removing Employee A from the workplace on January 8. Employee A was ultimately terminated as the result of its investigation. Further, there is no evidence that any discriminatory harassment continued in Complainant’s workplace. Accordingly, we find the Agency’s response to the noose incident sufficient to defeat Complainant’s attempt to impute liability to the Agency as a result of Employee A’s conduct.
The Commission notes that in her complaint, in Complainant’s Response to Agency’s Motion for a Decision without a Hearing, and on appeal, she identifies other incidents of alleged harassment. In its April 20, 2007 letter of Acceptance for Investigation, the Agency informed Complainant that the issue accepted for investigation was whether Complainant was subjected to a hostile work environment on January 4, 2007. ROI at 288. The letter informed Complainant and her legal counsel that if she did not agree with the defined accepted issue, she was required to submit a written response specifying the nature of her disagreement. There is no evidence that Complainant objected to the Agency’s definition of the issue presented. Nonetheless, to the extent that Complainant is contending that liability should be imputed to the Agency because it was not only the noose incident but, also, other hostile incidents of which the Agency was aware that created a discriminatorily hostile work environment, we reject Complainant’s view. Beyond Complainant’s mere assertions of other instances of a discriminatorily hostile environment, the record does not support a finding that a work environment existed such that the Agency can be imputed with constructive knowledge of a discriminatorily hostile workplace. Further, other than the occurrence of the noose incident, Complainant has not established that the workplace was permeated with discriminatory intimidation, ridicule, and insult. In addition, the record indicates that Complainant and Employee A had a working relationship which sometimes may have been up and sometimes down but was not linked to discriminatorily hostile behavior. Accordingly, we find the Agency’s response to the noose incident sufficient to defeat Complainant’s attempt to impute to the Agency liability for the conduct of Employee A.
