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The noose was just a joke

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February 4, 2020
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Employee A admitted to making a rope noose at home and hanging it up over a table in the Charlotte office as a “joke.

Moreover, this prior incident involved a noose – – a highly charged and powerful symbol in the history of this country, calling up painful memories of the lynching of thousands of African Americans.  The Supreme Court has stated that the “primary objective” of Title VII is “to avoid harm.”  Farragher v. City of Boca Raton, 524 U.S. 775, 806 (1998).

Marcene Juergensen,

Complainant,

v.

Carlos M. Gutierrez,

Secretary,

Department of Commerce,

Agency.

Appeal No. 0120073331

Agency No. 076300081

DECISION

Complainant filed a timely appeal with this Commission from the agency’s

decision dated June 4, 2007, dismissing 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.

At the time of the events at issue, complainant was employed as an

Administrative Clerk, GS-5, with the Charlotte Regional Office of the

U.S. Census Bureau.  In a complaint dated April 23, 2007, complainant

alleged that she was subjected to a hostile work environment on the basis

of race (African-American) when the agency rehired a former employee

(Employee A) to work in her office, who management knew had engaged

in racial harassment when previously employed at the same Charlotte

office.

Specifically, complainant provided a transcript from a deposition taken

during the processing of another employee’s EEO case in which Employee A

admitted to making a rope noose at home and hanging it up over a table in

the Charlotte office as a “joke.”  Complainant asserted her belief that

the noose was hung near the work space of an African American employee

(Employee B) in order to intimidate her because she had filed a complaint

alleging race discrimination in promotions.  Complainant asserts that

Employee B asked the supervisor to remove the noose, but the request was

ignored and it hung there for the entire day.  Employee B later filed

an EEO complaint over the incident.

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall

accept a complaint from an aggrieved employee or applicant for employment

who believes that he or she has been discriminated against by that agency

because of race, color, religion, sex, national origin, age or disabling

condition.  29 C.F.R. §§ 1614.103, .106(a).  The Commission’s federal

sector case precedent has long defined an “aggrieved employee” as one

who suffers a present harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy.  Diaz v. Dep’t of the

Air Force, EEOC Request No. 05931049 (April 21, 1994).  If complainant

cannot establish that s/he is aggrieved, the agency shall dismiss a

complaint for failure to state a claim.  29 C.F.R. § 1614.107(a)(1).

However, the Commission has held that where a complaint does not challenge

an agency action or inaction regarding a specific term, condition, or

privilege of employment, the claim may survive as evidence of harassment

if it is sufficiently severe or pervasive to alter the conditions

of the complainant’s employment.  See Harris v. Forklift Systems,

Inc., 510 U.S. 17, 23 (1993).  Whether the harassment is sufficiently

severe to trigger a violation of EEO statutes must be determined by

looking at all of 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.; Enforcement

Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002

(March 8, 1994).

A single incident or group of isolated incidents will not generally be

regarded as discriminatory harassment unless the conduct is severe. Backo

v. United States Postal Service, EEOC Request No. 05960227 (June 10,

1996).  In the present case, we find that, if proven true, complainant’s

allegations are sufficiently severe to set forth an actionable claim of

hostile work environment based on race. Specifically, complainant has

alleged that agency management negligently exposed her to the danger of

a racially hostile work environment by knowingly placing an employee in

her office who had previously committed an openly racist act against

an African American coworker.  Moreover, this prior incident involved

a noose–a highly charged and powerful symbol in the history of this

country, calling up painful memories of the lynching of thousands of

African Americans.  The Supreme Court has stated that the “primary

objective” of Title VII is “to avoid harm.”  Farragher v. City of Boca

Raton, 524 U.S. 775, 806 (1998).  As a result, an employer is liable

under Title VII for failing to prevent racially hostile or offensive work

environments which it knows about or, in the exercise of reasonable care,

should know about.

Accordingly, the agency’s dismissal of this claim is REVERSED and the

complaint is REMANDED for further processing in accordance with the

following Order.

ORDER (E0900)

The agency is ordered to process the remanded claims 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 becomes final.  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 becomes final, 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.

A copy of the agency’s letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 5, 2007

__________________

Date

2

0120073331

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C.  20036

5

0120073331

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February 4, 2020
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