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
